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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


».^<:y.  >Vb  y 


-o^ 


^  Jit,    19  30 


A  TREATISE 


ON 


EQUITY  JURISPRUDENCE, 


AS    ADMINISTERED    IN 


THE  UNITET^  STATES  OF  AMERICA; 

ADAPTED   FOR  ALL  THE   STATES, 

AND 

TO  THE  UNION  OF  LEGAL  AND  EQUITABLE  REMEDIES 

UNDER  THE  REFORMED  PROCEDURE. 
By   JOHX   NORTON   POMEROY,   LL.O. 

STUBEKTS'    EDITIOl^, 

BT 

JOHN   NORTON  POMEROY,   Jr.,   A.M.,   LL.B. 


RAN   FRANCISCO: 
B  A  N  C  R  0  F  T-W  HTTNEY     COMPANY, 
Law  Publishers  and  Law  Booksellers. 
1907. 


Entered   according   to   act   of   Congress    in   the   years    1881, 

1882,   and    1883,   by 

JOHN  NORTON  POMEROY, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  act  of  Congress  in  the  year   1892,  by 

ANNIE  R.  POMEROY, 
In  the  office  of  tlie  Librarian   of   Congress,   at   Washington. 


Copyright,  1905.  1907. 
By    CARTER    P.    POMEROY,    HARRIET    P.    THOMPSON, 
AND    JOHN    NORTON    POMEROY,    Jb.     • 


?7'/lLf& 


/  11(4 

m 


T© 

STEPHEN    J.    FIELD,    LL.D., 

ONE  OF  THE  ASSOCIATE  JUSTICES  OF  THE  SUPREME  COURT 
OF  THE  UNITED  STATES: 

N^OT   ONLY   AS    A    TRIBUTE   TO    HIS   EMINENT   PUBLIC    SERVICES    IN   THE   MOST    AUGUST 
TRIBUNAL    OF    ANY    MODERN    NATION,    BUT    ALSO    AS    AN    ACKNOWLEDG- 
MENT  OF   HIS   PRIVATE   FRIENDSHIP,   AND   OF   THE   AUTHOR'S 
ESTEEM    AND    RESPECT, 

THIS  WORK  IS  DEDICATED. 


667117 


PREFACE  TO  STUDENTS'  EDITION. 


The  purpose  of  the  editor  in  preparing  the  present  abridgment 
of  his  father's  work,  for  the  use  of  students  in  law  schools,  appears 
to  call  for  little  defense  or  explanation.  Between  one-third  and  two- 
fiftlis  of  the  text  has  boon  omitted,  and  the  greater  part  of  the  notes: 
all  except/ such  as  seemed  essential  to  a  clear  understanding  of  the 
text.  No  part  of  the  text  has  been  re-Avritten.  By  the  sacrifice  of 
some  details  of  comparatively  little  importance  'to  the  American 
student  (as  in  the  chapters  on  Election,  Satisfaction,  and  Perform- 
ance, §§  461-590),  of  matters  peculiar  to  the  jurisdiction  in  individ- 
ual states  (as  in  §§  299-352).  and  by  the  free  use  of  cross  references 
(e.  g.,  see  §§  70-88,  151-169),  it  has  been  found  possible  to  preserve 
intact  those  full  discussions  of  the  foundation  and  rationale  of  the 
various  equitable  doctrines  which  are  the  chief  excellence  of  the 
work.  The  index  (with  some  regret)  has  been  greatly  shortened:  on 
the  other  hand,  the  chapter  analyses  have  been  retained  without 
omissions,  for  the  i)urpose  of  showing  the  author's  full  scheme  of 
treatment  of  the  various  subjects. 

The  editor's  notes  consist,  in  the  main,  of  the  citation  of  caseS' — 
seldom  more  than  three  to  each  point  of  the  text,— selected  with 
reference  to  the  needs  of  the  elementary  student  and  the  facilities 
nf  the  average  law  school  library.  The}^  comprise  (1)  the  cases 
chiefly  relied  upon  and  quoted  by  the  author;  (2)  those  in  the  case 
l)()oks  on  equity  of  Ames,  Keener,  Scott,  Hutehins  and  Bunker,  Shep- 
liord,  Lewis,  in  Ames's  Trusts  and  Kirchwey's  Mortgages;  (3)  other 
cases  chosen  by  reason  of  their  historical  importance,  clearness  and 
fullness  of  discussion,  and  (a  rare  virtue)  simplicity  of  facts.  No 
attempt  has  been  made,  by  use  of  brackets  or  other  cumbersome 
devices,  to  distinguish  between  the  author's  and  the  editor's  notes. 

A  number  of  topics  of  importance  have  been  annotated  with  more 
fullness;  e.  g..  Multiplicity  of  Suits  (§g  261.  264,  267)  ;  Jurisdiction 
of  Federal  Courts  (§§  292  et  seq.)  ;  Executory  Contract  for  Sale  of 
Land   (§  368);  Laches  (§  419);  Equity  acts  in  personam  (§§  428, 


VI  rUEFACE. 

429);  various  matters  in  Trusts;  Covenant  creating  an  Equitable 
Servitude  (§  1295)  ;  the  various  Equitable  Remedies,  especially  lle- 
ceivers  (§§  1334,  1336)  ;  Injunctions;  Reformation  and  Cancellation 
(§§  1376,  1377;  ;  Cloud  on  Title  (§  1399)  ;  and  Specific  Performance. 
The  chapters  on  Injunction  and  Specific  Performance  have  been 
materially  enlarged,  and  in  these  instances  it  seemed  expedient  to 
insert  a  few  new  paragraphs  in  the  text. 

In  few  American  law  schools,  it  is  believed,  does  the  study  of 
Equity  receive  an  allotment  of  time  proportioned  either  to  its  prac- 
tical importance  or  its  educational  value.  No  apology-,  perhaps,  is 
needed  for  the  fact  that  the  length  of  this  edition  is  somewhat 
greater  than  that  of  the  average  student's  manual.  It  is  sufficient 
to  i)oint  to  the  experience  of  instructors  who  have  used  the  work, 
that  the  well  known  clearness,  ease,  and  fluency  of  Prof.  Pomeroy's 
literary  style  render  the  student's  progress  comparatively  rapid. 
A  number  of  the  topics,  moreover,  are  customarily  treated  in  other 
parts  of  the  curriculum. 

J.  N.  P.  Jr. 
September,  190? » 


PREFACE. 


The  author  herewith  submits  to  the  legal  profession  a  text- 
book which  treats,  in  a  somewhat  comprehensive  manner,  of  the 
equitable  jurisdiction  as  it  is  now  held  by  the  national  and  state 
tribunals,  and  of  the  equijtable  jurisprudence  as  it  is  now  adminis- 
tered by  the  courts  of  the  United  States,  and  of  all  those  states 
in  which  the  principles  of  equity,  originally  formulated  by  the 
English  Court  of  Chajicery,  have  been  adopted  and  incorporated 
into  the  municipal  law.  It  is  proper  that  he  should,  in  a  few 
words,  explain  the  motives  which  led  to  the  preparation  of  such 
a  work,  and  describe  the  plan  which  he  has  pursued  in  its  com- 
position  

It  is  of  vital  importance,  therefore,  that  a  treatise  on  equity 
for  the  use  of  the  American  bar  should  be  adapted  to  the  exist- 
ing condition  of  jurisprudence  throughout  so  large  a  part  of  the 
I'nited  States.  It  should  be  based  upon,  and  should  present  in 
the  clearest  light,  those  principles  which  lie  at  the  foundation 
of  equity,  and  which  are  the  sources  of  its  doctrines  and  rules. 
In  this  respect,  the  plan  of  the  present  work  was  deliberately 
chosen,  and  has  been  steadily  pursued,  even  Avhen  it  has  led  to 
amplifications  which  might,  perhaps,  be  regarded  by  some  readers 
as  unnecessary.  It  has  been  my  constant  endeavor  to  present 
the  grreat  underlying  principles  which  sustain  the  whole  super- 
structure of  equity,  and  to  discuss,  explain,  and  illustrate  them 
in  the  most  complete  manner.  Some  of  these  principles  are  so 
comprehensive  and  fruitful,  that  one  who  has  grasped  them  in 
their  fullness  of  conception  has  already  mastered  the  system  of 
equity;  all  else  is  the  mere  application  of  these  grand  truths  to 
particular  circumstances. 

Such  a  treatise,  designed  for  the  American  profession,  if  it 
would  at  all  meet  and  satisfy  the  needs  of  the  bench  and  bar, 
must  also  be  based  upon  and  adapted  to  the  equitable  jurisdiction 
which  is  actually  possessed  by  the  state  and  national  courts,  and 

fviij 


Tin  PREFACE. 

the  equitable  jiirispriidience  which  is  actually  administereld  by 
them.  It  must  recognize  the  existing  condition,  both  of  law  and 
equity,  the  limitations  upon  the  chancery  jurisdiction  resulting 
from  varying  statutes,  and  the  alterations  made  by  American 
legislation,  institutions,  and  social  habits.  Many  departments 
of  equity,  many  doctrines  and  modes  of  applying  the  jurisdiction 
which  were  important  at  an  earlier  day,  and  are  perhaps  still  promi- 
nent in  England,  have  become  practically  obsolete  in  this  coiuitry ; 
while  others  have  risen  in  consequence,  and  are  constantly  occupy- 
ing the  attention  of  the  courts.  It  has  been  my  purpose  and  en- 
deavor to  discuss  and  describe  the  equity  jurisprudence  as  viewed 
in  this  light,  and  to  present  the  actual  system  which  is  now  adminis- 
tered by  the  courts  of  the  United  States  and  of  all  the  states.  As 
an  illustration,  I  have  attempted  to  ascertain  and  determine  the 
amount  of  jurisdiction  held  by  the  different  state  tribunals,  as 
limited  and  defined  by  statutes,  and  established  by  judicial  inter- 
pretation;  and  have  not  confined  the  treatment  of  this  subject  to  a 
mere  account  of  the  general  jurisdiction  possessed  by  the  English 
Court  of  Chancery.  It  is  true  that  the  fundamental  principles  are 
the  same  as  those  which  were  developed  through  the  past  centuries 
by  the  English  chancery:  but  the  application  of  these  principles,  and 
the  particular  rules  which  have  been  deduced  from  them,  have  been 
shaped  and  determined  by  the  modern  American  national  life,  and 
have  received  the  impress  of  the  American  national  character.  It 
has  been  my  design,  therefore,  to  furnish  to  the  legal  profession  a 
treatise  which  should  deal  with  the  equity  jurisdiction  and  juris^ 
prudence  as  they  now  are  throughout  the  United  States;  with  their 
statutory  modifications  and  limitations,  and  under  their  different 
types  and  forms  in  various  groups  of  states ;  and  thus  to  prepare  a 
work  which  would  be  useful  to  the  bench  and  bar  in  all  parts  of  our 
countiy.  During  its  composition  I  have  constantly  had  before  me  a 
high  ideal.  The  difficulty  in  carrying  out  this  conception  has  been 
very  great;  the  labor  which  it  has  required  has  been  enormous. 
That  I  may  have  fallen  short  of  this  ideal  in  all  its  completeness 
and  perfection  T  am  only  too  conscious;  its  full  realization  was  per- 
haps impossible.  If  the  book  shall  be  of  any  help  to  the  courts  and 
the  profession  in  administering  equitable  doctrines  and  rules;  if  it 
shall  be  of  any  assistance  to  students  in  disclosing  the  grand  prin- 


I'HKKACE.  IX 

ciples  of  e(iuity ;  if  it  shall  to  any  extent  maintain  the  equitable 
jurisprudence  in  its  true  position  as  a  constituent  part  of  the  munic- 
ipal law, — -then  the  time  and  labor  spent  in  its  composition  will  be 
amply  repaid. 

The  internal  plan,  the  system  of  classification  and  arrangement, 
the  modes  of  treatment,  and  especially  the  reasons  for  departing 
from  the  order  and  methods  which  have  usually  been  followed  by 
text-Avriters,  are  described  at  large  in  the  third,  fourth  and  fifth 
sections  of  the  Introductory  Chapter.  To  that  chapter  I  would  re- 
spectfully refer  any  reader  who  may  at  the  outset  desire  a  full  ex- 
planation of  these  matters,  which  are  so  important  to  a  full  under- 
standing of  an  author's  purposes,  and  to  a  correct  appreciation  of 
his  work.  The  book  is  submitted  to  the  profession  with  the  hope 
that  it  may  be  of  some  aid  to  them  in  their  judicial  and  forensic 
duties,  and  may  accomplish  something  for  the  promotion  of  justice, 
righteousness,  and  equity  in  the  legal  and  businesii  transactions  and 
relations  of  society. 

J.  N.  P. 
Hastings  College  of  the  Law. 
San  FkanciscOj  May^  1881. 


TABLE  OF  CONTENTS. 


Section 

I. 

Section 

II. 

Section 

III. 

Section 

IV. 

Section 

V. 

INTRODUCTORY  CHAPTER. 

The  origin  of  equity   jurisdiction   ami    jurisprudence.   §§    1-42. 

The  nature  of  equity,  §§  4,3-<>7. 

The  present  relation  of  equity  with  the  law,  S§  (58-88. 

The  constituent   parts   of  equity,   §§    89-117. 

The   principles   of   classification,   §§    118-128. 


PART    FIRST. 

THE   N.'VTURE   AND   EXTENT   OF   EQUITY   JURISDICTION". 

CHAPTER   FIRST. 

THE   GENERAL  DOCTRINE   CONCERNING   THE  JURI.SDICTION. 

vSection  I.  Fundamental  principles  and  divisions,  §§   120-145. 

Section  II.  The    exclusive    jurisdiction,    §§     146-172. 

Section  III.  Tlie   concurrent   jurisdiction,    §§    173-189. 

Section  IV.  The  auxiliary   jurisdiction,   §§    100-215. 

CHAPTER   SECOND. 

GENERAL   RILES    FOR   THE    GOVERNMENT   OF    THE    .TlTil.SDICTION. 

Section  I.     Inadequacy  of   lp<ral   remedies,   §§   216-222. 

Section        II.     Discoveiy  as  a  source  or  occasion  of  jurisdiction.  §§  22.3-2.30. 

Section  III.  The  doctrine  that  jurisdiction  existing  over  some  portion  or  inci- 
dent extends  to  and  embraces  tlie  wliole  subject-matter  or 
controversy.    §§    231-242. 

Section  IV.  The  doctrine  that  the  jurisdiction  exists  in  order  to  prevent  a 
nniltiplicity  of  suits,   §5   243-275. 

Section  V.  Tlie  doctrine  that  the  jurisdiction  once  existing  is  not  lost  because 
the  courts  of  law  have  subsequently  acquired  a  like  authority. 
§§    276-281. 

CHAPTER   THIRD. 

THE   JURISDICTION   AS   HEED   BY  THE   COURTS    OF   THE    SEAT.RAL   STATES,    AND   BY   THE 
COURTS    OF    THE    UNITED     STATES. 

Section         I.     Abstract    of    legislative    provisions,    §§    282-288. 
Section       II.     The  jurisdiction  as  established  by  judicial  interpretation,  §§  289- 
358. 

[Xi] 


Xll 


TABLK    OF    COXTl'.NTS. 


PART    SECOND. 

THE  MAXIMS  AXU  GENKRAI,  PRINCIPLES  OF  EQUITY  .JURISPRI'DENCE.   AND  THE  EVENTS 
WHICH    ARE   OCCASIOXS    OF    EQUITABLE    PRIMARY    OR    REMEDIAL    RIGHTS. 

Preliminary  Seftioii,  §§  3.5ft-.3()2. 


CHAPTER    FIRST. 

THE   FUNDAMEXTAL    PRIXCIPLES    OR   MAXIMS    OF   EQUITY. 

Section  I.     Equity  regards  that  as  done  wliicli  on^ht  to  be  done,  §§  .3H3-.377. 

Section        II.     Equity  looks  to  the  intent   rather  than  to  tlu'  form,   §§   378-384. 
Section      Til.     He    who    seeks    equity    must    do    equity.    §§    38o-39t). 
Section       IV.     He  who  comes  into  equity  must  come  with  clean  hands,  §S   3!)7- 

404. 
Section        V.     Equality   is  equity.    §§    405-412. 
Section       VI.     Wheie  there  are  equal   equities,  the  tirst   in   order  of  time   shall 

prevail.    §§    413-415. 
Section     VII.     Where  there  is  equal  equity  the  law  must  prevail,  §§  41fi,  417. 
Section  VIII.     Equity  aids  the  vigilant,  not  those  who  slumber  on  their  rights. 

§§  418.  41f). 
Section       IX.     Equity  imputes  an  intention  to  fulfill  an  obligation,  §§   420-422. 
Section        X.     Equity  will   not  suffer  a   wrong  without  a  remedy,   §§   423,  424. 
Section      XI.     Equity  follows  the  law,   §§   425-427. 
Section     XII.     Equity  acts  in  personam  and  not   in  rem,  §§  428-431. 


CHAPTER   SECOND. 


Section 

I. 

Section 

II. 

Section 

III. 

Section 

IV. 

Section 

V. 

Section 

VI. 

Section 

VII. 

Section 

VIII. 

Section 

IX. 

CERTAIN    DISTINCTIVE   DOCTRINES   OF   EQUITY    .TURTSPRTT)ENCE. 

Concerning  i^enalties  and   forfeitures,  §§   432-4fi0. 
Concerning  election.    S§    401-51!). 
Concerning  satisfaction..  SS  520-577. 
IV.     Concerning  performance,  §§  578-500. 
Concerning    notice,    §§    501-670. 
Concerning  priorities,  §§   677-734. 
Concerning  bona   fide  purchase  for  a   valuable  consideration   and 

without  notice.   §§    735-785. 
Concerning  merger.  §§  786-800. 
Concerning  equitable   estoppel,    S§    801-821. 


CHAPTER   THIRD. 


CERTAIN    FACTS    AND   EVENTS    WHICH    ARE    THE    OCCASIONS    OF    EQUITABLE    PRIMARY 

OR   REMEDIAL  RIGHTS. 

Section  I.  Accident.   §§   823-837. 

Section  II.  Mistake.   §S    838-871. 

Section  III.  Actual   fraud.   §§   872-021. 

Section  IV.  Constructive   fraud,    §§    022-074. 


TAHLi;   OF   CONTEXTS.  Xlll 


PAKT    TlllKD. 

THE     EQUITABLE      ESTATKS,     IXTEHF:ST.Sj      AXl)      PRIMARY     RIGHTS       RECOGNIZED     AWU 
PROTECTED   BY  THE   EQUITY   JURISPRUDENCE. 

Preliminary   paragrapli,   §   975. 

CHAPTER    FIRST. 


Section  I.  Orij^in    of    uses    and    trusts,    §S    !)76-l)86. 

Section  II.  Express  jirivate  trusts,   §§   987-1005. 

Section  III.  How  express  trusts  are  created,  §§    lOOG-1017. 

Section  IV.  Public  or  charitable  trusts,   §§    1018-1029. 

Section  V.  Trusts    arising   by   operation    of   law — resulting   and    constructive 

trusts,    §§1030-1058. 

Section  VI.  Powers,  duties,  and  liabilities  of  express  trustees,  SS   1059-1087. 

Section  VII.  Corporation   directors   and   others   quasi     trustees,   §§    1088-1097. 

CHAPTER   SECOND. 

ESTATES    AND    INTERESTS    OF    MARRIED    WOMEN. 

Section         I.     The  separate  estate  of  married  women,  §§   1098-1113. 
Section        II.     The  wife's  equity  to  a   settlement.   §§   \1 14-1 120. 
Section      III.     The  contracts  of  married   womeUj   §§    1121-1126. 

CHAPTER  THIRD. 

ESTATES    AND    INTERESTS    ARISING    FROM     A     SUCCESSION    TO    A    DECEDENT. 

Section  I.  Legacies,   §§    1127-1134. 

Section  II.  Donations  causa  mortis,  §§   1146-1151. 

Section  III.  Administration   of   estates.    §§    11.12-1154. 

Section  IV.  Construction  and   enforcement  of  wills,  §§    1155-1158. 

CHAPTER    FOURTH. 

EQIITABLE      ESTATES      ARISING      FROM      CONVERSION. 

Section  I.     The    conversion    of    real    estate    into    personal,    and    of    personal 

estate  into  real,  §§   1159-1168. 
Section        II.     Resulting  trust  upon  a  failure  of  the  purposes  of  the  conversion, 

SS    1169-1174. 
Section      III.     Reconversion,  §§    1175-1178. 

CHAPTER    FIFTH. 

MORTGAGES     OF     LAND. 

The  original   or  English  doctrine.   §§    1179-1185. 
The   American   doctrine,   §§    1186-1191. 
Various  forms  and  kinds  of  mortgage,  §5   1192-1203. 
Interests,    rights,    and    liabilities    of   the    mortgagor    and    of   the 
mortgagee,  §§   1204-1228. 


Section 

I. 

Sect  ion 

II. 

Section 

III. 

Section 

IV. 

XIV  TABLE  OF  CONTENTS. 

CH.APTP:R    81XTH. 
Mortgages  of  personal  property  and  pledges,  §§    1229-1232. 

I 
CHAPTER  SEVENTH. 

EQUITABLE    LIEJCS. 

Section         I.  Their  general   nature,   §§    1233,   1234. 

Section        II.  Arising  from  express  contract,  §§   1235-1237. 

Section      III,  Arising  from  implied  contracts,  §§   1238-1243. 

Section       IV.  Arising  froni  charges  by  will  or  by  deed,  §§  1244-1248. 

Section        V.  The  grantor's  lien,  on  conveyance,  §§    1249-1259. 

Section      VI.  The  vendor's  lien  and  the  vendee's  lien,  on  contract  for  sale  and 

purchase,    §§     1260-1263. 

Section     VII.  Arising  from   a  deposit  of  title  deeds,  §§    1264-1207. 

Section  VIII.  Various   statutory   liens,    §§    1268,    1269. 

CHAPTER  EIGHTH. 

ESTATES     AXI)    INTERESTS     ARISING    FROM     ASSIGNMENTS. 

Section  I.     Assignment    nf    tilings    in    action.    §§     1270-1279. 

Section        II.     Equitable  assignment  of  a   fund  by  onler  or  otherwise,  §§    12S0- 

1284. 
Section      III.     Assignment    of    possibilities,    expectancies,    and    property    to    be 

acquired  in  future,  §§  1285-1291. 

CHAPTER   NINTH. 

CONTR.\CTS    IN    EQIITY. 

Section         I.     General   doctrine  concerning  contracts,   §§    1292-1297. 
Section        II.     Equitable  debts,  §§   1298-1302. 

CHAPTER   TENTH. 

PERSONS    NOT   SUI   .JURIS. 

Section  T.     Infants,   §§    1303-1310. 

Section        II.     Persons  of  unsound  mind,   §§    1311-13M 


PART    FOURTH. 

THE     REMEDIES     AND     REAIEDIAL     RKHITS     WHICH     ARE     CONFERRED    BY     THE    EQUITY 

.JURISPRUDENCE. 

Preliminary   section,    §§    1315-1318. 

FIRST    GROUP. 

REMEDIES    PURELY    ANCILLARY    AND    PROVISIONAL. 


I 


TABLE   OF   CONTEXTS.  XV 

CHAPTER   FIRST, 
lutervloader,    §§    1319-1329. 

CHAPTER  SECOND. 
Receivers,    §§    1 330-1 33(). 

SECOND    GROUP. 

KEMEDIKS    PIRELY    PREVENTIVE. 

CHAPTER    FIRST. 

IX  J  UNCTIONS. 

Section  I.  To  protect  or  restrain  the  violation  of  obligations  and  rijjliis 
of  property  or  of  contract,  either  legal  or  equitable,  §§  1337- 
1345. 

Section        11.     To   prevent   or   restrain   the   commission    of   torts,    §i?    134(5-1358. 

Section      III.     Mandatory  injunctions,  §  1359. 

Section       IV.     To  restrain  actions  or  judgments  at  law,   §S    13(50-1305. 


THIRD    GROUP. 

BEMEDIES     WHICH     INDIRECTEY     ESTABLISH     OR     PROTECT     INTERESTS     AND     PRIMARY 
RIGHTS,     EITHER     LEGAL     OR     EQUITABLE. 

CHAPTER    FIRST. 
Reformation  and  cancellation,  §§   1375-1377. 


FOURTH  GROUP. 

BEMEDIES   BY   WHICH   EST.-^TES,    INTERESTS,   AND   PRIMARY   RIGHTS,   EITHER   LEGAL   OR 

EQUITABLE,   ARE   DIRECTLY   DECLARED,   ESTABLISHED,    OR   RECOVERED,    OR 

THE      EN,JOYMENT      THEREOF      FULLY      RESTORED. 

CHAPTER   FIRST. 

Suits  by  which  jjurely  legal  estates  are  established,  and  the  en- 
joyment thereof  recovered:  namely,  assignment  of  dower : 
establishment  of  disputed  boundaries;  partition  of  land,  and 
of  personal    ]n-operty,   §§    1378-1392. 

CHAPTER  SECOND. 

Suits  by  which  some  general  right,  either  legal  or  equitable,  is 
eslablislied.  Bills  of  peace,  and  bills  quia  timet;  quieting 
title,   §§    1393,  1394. 


XVI  TABLE  OF   CONTENTS. 

CHAPTER   THIRD. 

Suits  by  which  some  particular  estate,  interest,  or  right,  either 
legal  or  equitable,  is  established.  Statutory  suit  to  quiet  title; 
suit  to  remove  a  cloud  from  title,  §§   1395-1399. 


FIFTH  GROUP. 

BEMEDIES     BY    WHICH     EQUITABLE     OBLIGATIONS     ARE     SPECIFICALLY    AND    DIRECTLY 

ENFORCED. 

CHAPTER    FIRST. 
Specific  performance  of  contracts^   §§    1400-1410. 

CHAPTER   SECOND. 

Specific  enforcement  of  obligations  arising  from  trusts  and  fidu- 
ciary   relations,    §§    1411.    1412. 


SIXTH    GROUP. 

REMEDIES    IN    WHICH    THE    FINAL    RELIEF    IS    PECUNIARY,    BtTT    IS    OBTAINED    BY    THE 
ENFORCEMENT  OF   A   LIEN  OR   CHARGE   UPON    SOME   SPECIFIC   PROPERTY   OR   FUND. 

CHAPTER  FIRST. 

Foreclosure    suits;    marslialing    securities;     creditors'    suits,    §§ 
1413-1415. 


SEVENTH    GROUP. 

REMEDIES   IN   WHICH    THE    FINAL    RELIEF    IS    WHOLLY    PECUNIARY,    AND    IS   OBTAINED 
IN    THE    FORM    OF    A    GENERAL    PECI^NIARY    RECOVERY. 

CHAPTER    FIRST. 

Suits    for   contribution,   exoneration,   and   subrogation,    §§    1416- 
1419. 

CHAPTER  SECOND. 
Suits  for  an  accounting,  §§   1420,  1421. 


A  TREATISE 


EQUITY  JURISPRUDENCE. 


TREATISE 


ON 


EQUITY  JURISPRUDENCE 


INTRODUCTORY   CHAPTER 


SECTION  I. 
THE  OEIGIN  OF  EQUITY  JURISDICTION  AND  JURISPRUDENCE. 

ANALYSIS. 

§   1.  Object  of  this  Introduction. 
§§   2-9.  Aequitas  in  the  Roman  Law. 
§§   10-42.  Origin  of  equity  in  the  English  Law. 
§§   10-13.  Primitive  condition   of   the   law  and   tlie  courts. 
§§   14,  15.  Early   influence   of  'the   Roman   Law. 
§§   lC-29.  Causes  which  made  a  court  of  equity  necessary. 
§§  21—23.  The   earliest    common-law   actions    and    procedure. 

§  24.  Statute  of  Edward  I.   concerning   new  Avrits. 
S§  2.5-29.  Limited  resulFs  of  this  legislation. 

§§   30-42,  Commencement  and  progress  of  the  chancery  jurisdiction. 
§31.  Original   i)Owers   of  the   King's    Ct)uncil. 
§  32.  Original    common-law   jurisdiction   of  the   Chancellor. 
§§  33-35.  Jurisdiction    of    grace    transferred    to    the    Chancellor;      Statute    24 

Edward  III. 
§§  36-39.  Development  of  the  equitable  jurisdiction. 

§  40.  Abolition  of  the  court  in  England  and  in  many  American  states. 
§§   41,42.  Equity  jurisdiction  in  other  American  states. 

§  1.  Object  of  this  Introduction. — It  is  not  my  purpose  to  at- 
tempt a  complete  and  detailed  history  of  equity  as  it  exists  in  Eng- 
land and  in  the  Ignited  fStates.  That  work  has  already  been  done 
by  Mr.  Spenee,  in  his  Eqnitable  Jurisdiction  of  the  Court  of  Chan- 
cery.^ Some  general  account,  however,  of  the  origin  of  the  equitable 
jurisdiction,  of  the  sources  from  which  the  principles  and  doctrines 

^  A  shorter  and  more  recent  work  which  may  be  read  A^ith  profit  by  the  elemen- 
tary student,  is  Kerly's  Historical  Sketch  of  the  Equity  Jurisdiction  of  the  Court 
of  Chancery.  Some  extracts  from  this  and  other  authors,  relating  to  the  growth 
and  development  of  the  equity  jurisdiction,  are  collected  in  1  Scott,  1-30. 

[1] 


§  8  EQUITY    JUKISPKUDENCE.  2 

of  the  equity  jurisprudence  took  their  rise,  and  of  the  causes  whicli 
led  to  the  establishment  of  the  Court  of  Chancery,  with  its  modes 
of  procedure  separate  and  distinct  from  the  common-law  tribunals, 
with  their  prescribed  and  rigid  forms  of  action,  is  absolutely  essen- 
tial to  an  accurate  conception  of  the  true  nature  and  functions  of 
equity  as  it  exists  at  the  present  day.  I  shall  therefore  preface  this 
introductory^  chapter  with  a  short  historical  sketch,  exhibiting  the 
system  in  its  beginnings,  and  describing  the  early  movements  of 
that  progress  through  which  its  principles  have  been  developed  into 
a  vast  body  of  doctrines  and  rules  which  constitute  a  most  important 
department  of  the  municipal  law. 

§  2.     Aequitas  in  the  Roman  Law. 

§  8.  In  their  work  of  improving  the  primitive  jus  civile,  the 
magistrates  who  issued  edicts  (who  possessed  the  jus  edicendi), 
and  the  jurisconsults  who  furnished  authoritative  opinions  (re- 
sponsa)  to  aid  the  praetors  (those  who  possessed  the  jus  respon- 
dendi),  obtained  their  material  from  two  sources,  namely:  At  first, 
from  what  they  termed  the  jus  gentium,  the  law  of  nations,  mean- 
ing thereby  those  rules  of  law  which  they  found  existing  alike  in 
the  legal  systems  of  all  the  peoples  with  which  Kome  came  into 
contact,  and  which  they  conceived  to  have  a  certain  universal  sanc- 
tion arising  from  principles  common  to  human  nature ;  and  at  a 
later  da3^  from  the  Stoic  theory  of  morality,  which  they  called  lex 
naturae,  the  law  of  nature.  The  doctrines  of  this  jus  gentium  and 
of  this  lex  naturae  were  often  identical,  and  hence  arose  the  con- 
ception, generally  prevalent  among  the  juridical  writers  of  the 
empire,  that  the  "natural  law"  (lex  naturae)  and  the  "law  of 
nations"  (jus  gentium)  were  one  and  the  same;  or  in  other 
words,  that  the  doctrines  which  were  found  common  to  all  national 
s^^stems  were  dictated  by  and  a  x>art  of  this  natural  law.  The  par- 
ticular rules  of  the  Roman  jurisprudence  derived  from  this  moral- 
ity, called  the  law  of  nature,  were  termed  "aequitas,"  from  aequum, 
because  thej^  Avere  supposed  to  be  impartial  in  their  operation,  ap- 
plying to  all  persons  alike.  The  lex  naturae  was  assumed  to  be 
the  governing  force  of  the  world,  and  was  regarded  by  the  magis- 
trates and  jurists  as  having  an  absolute  authority.  They  felt  them- 
selves, therefore,  under  an  imperative  obligation  to  bring  the  juris- 
prudence into  harmony  w^ith  this  all-pervading  morality,  and  to 
allow  such  actions  and  make  such  decisions  that  no  moral  rule 
should  be  violated.  Whenever  an  adherence  to  the  old  jus  civile 
would  do  a  moral  Avrong,  and  produce  a  result  inequitable  (inae- 
quum),  the  praetor,  conforming  his  edict  or  his  decision  to  the  law 
of  nature,  provided  a  remedy  by  means  of  an  appropriate  action  or 
defense.     Gradually  the   eases,   as  well   as  the  modes  in   which  he 


J  OKKilX   OF   KC^LITY   J  lUlSPRUDKXCE.  §  l".' 

would  thus  interfere,  grew  more  and  more  common  and  certain, 
ai'd  thus  a  body  of  moral  principles  was  introduced  into  the  Roman 
law,  which  constituted  equity  (ae(iuitas).'  This  resulting  equity 
was  not  a  separate  department;  it  penetrated  the  entire  jurispru- 
dence, displacing  what  of  the  ancient  system  was  arbitrary  and  un- 
just, and  bringing  the  whole  into  an  accordance  Avith  the  prevailing 
notions  of  morality.  In  its  original  sense,  aequitas,  aequum,  con- 
veyed the  conception  of  universality,  and  therefore  of  impartiality, 
a  liaving  regard  for  the  interests  of  all  whose  interests  ought  to  be 
regarded,  as  contrasted  with  the  having  an  exclusive  or  partial 
regard  for  the  interests  of  some,  which  was  the  essential  character 
of  the  old  jus  civile.  At  a  later  period,  and  especially  after  the  in- 
fluence of  Christianity  had  been  felt,  the  signification  of  aequita^i 
became  enlarged,  and  was  made  to  embrace  our  modern  conceptions 
of  right,  duty,  justice,  and  morality. 

§  9.  There  are  certainly  many  striking  analogies  between  the 
growth  of  equity  in  the  Roman  and  in  the  English  law;  the  same 
causes  operated  to  make  it  necessary,  the  same  methods  were  up  to 
a  certain  point  pursued,  and  in  principle  the  same  results  were 
reached.  The  differences,  however,  are  no  less  remarkable.  No 
separate  tribunal  or  department  was  made  necessary  in  the  Roman 
jurisprudence,  because  the  ordinary  magistrates  were  willing  to 
do  what  the  early  English  common-law^  judges  utterly  refused  to 
perform:  that  is,  to  promote  and  control  the  entire  legal  develop- 
ment as  the  needs  of  an  advancing  civilization  demanded.  While 
these  common-law  judges  resisted  every  innovation  upon  their  es- 
tablished forms,  and  .shut  up  every  way  for  the  legal  growth,  the 
Roman  magistrates  were  the  leaders  in  the  work  of  reform,  and 
constantly  anticipated  the  wants  of  the  community.  The  English 
judges  made  a  new  court  and  a  separate  department  indispensable ; 
the  Roman  praetors  accomplished  every  reform  by  means  of  their 
own  jurisdiction,  and  preserved  in  the  jurisprudence  a  unity  and 
homogeneity  which  the  English  and  American  law  lacks,  and  which 
it  can  perhaps  never  acf|uire.  Both  these  resemblances  and  these 
contra.sts  are  exhibited  in  the  following  paragraphs,  which  describe 
the  introduction  of  equity  into  the  English  system  of  jurisprudence. 

§  10.  Orig-in  of  Equity  in  the  English  Law — Primitive  Condition 
of  the  Law  and  the  Courts. 

§12.  .  .  .  The  office  of  Thancellor  was  very  ancient.  It  had  existed 
before  the  conquest,  and  was  continued  by  "William.  Under  his 
successors,  the  Chancellor  soon  became  the  most  important  func- 
tionary of  the  Kind's  govei-nment.  the  personal  adviser  and  repre- 

'  See  Sandar's  TTT^titutes  of  .Tu^tininn.  pp.  IS.  14:  Pliilliniore'^  Private  La^V 
:nv.nne  the  Pninan-^.  pp.  '21.  22:  2  .\ii-1in  on  .Tiiiispnulf'npp.  pp.  240-207. 


§15/  EQUITY   J  lUlSPKUDEXCE.  4 

sentative  of  the  crown,  but,  in  the  very  earliest  times,  without,  as 
it  seems,  any  purely  judicial  powers  and  duties  annexed  to  the 
position.  How  these  functiont^  were  acquired,  it  is  the  main  pur- 
pose of  this  historical  sketch  to  describe.  The  three  superior  law 
courts-  whose  origin  has  thus  been  stated  have  remained,  with  some 
statutory  modification,  through  the  succeeding  centuries,  until,  by 
the  Judicature  Act  of  1873,  w'hich  went  into  operation  November 
2,  1875,  they  and  the  Court  of  Chancery,  and  certain  other  courts, 
were  abolished  as  distinct  tribunals,  and  were  consolidated  into 
one  "Supreme  Court  of  Judicature." 

§  13.  The  local  folk  courts  left  in  existence  at  the  conquest, 
and  even  the  itinerant  justices  and  the  central  King's  Court,  for 
a  while  continued  to  administer  a  law  which  was  largely  customarJ^ 
The  progress  of  society,  the  increase  in  importance  of  property 
rights,  the  artificial  system  which  we  call  feudalism,  with  its  mass 
of  arbitrary  rules  and  usages,  all  demanded  and  rapidly  produced 
a  more  complete,  certain,  and  authoritative  jurisprudence  for  the 
whole  realm  than  the  existing  popular  customs,  however  ancient 
and  widely  observed.  This  work  of  building  up  a  positive  juris- 
prudence upon  the  foundation  of  the  Saxon  customs  and  feudal 
usages,  this  initial  activity  in  creating  the  common  laAV  of  England, 
was  done,  not  by  parliamentary  legislation  nor  by  royal  ciecrees, 
but  by  the  justices  in  their  decisions  of  civil  and  criminal  causes. 
The  law  which  had  been  chiefly  customary  and  therefore  unwritten, 
preserved  by  tradition,  lex  non  scripta,  was  changed  in  its  form 
by  being  embodied  in  a  series  of  judicial  precedents  preserved  in 
the  records  of  the  courts,  or  published  in  the  books  of  reports,  and 
thus  it  became,  so  far  as  these  precedents  expressed  its  principles 
and  rules,  a  written  law,  lex  scripta.^ 

§14.     Early  Influences  of  the  Roman  Law. 

§  15.  Had  it  not  been  for  several  powerful  causes,  partly  grow- 
ing out  of  the  English  national  character,  or  rather,  the  character 
of  the  Norman  kings  and  barons  who  ruled  over  England,  and  partly 
arising  from  external  events  connected  with  the  government  itself, 
it  is  probable  that  this  work  of  assimilation  and  of  building  up  the 
common  law  with  materials  taken  from  the  never-failing  quarries 
of  the  Eoman  legislation,  Avould  have  continued  throughout  its  en- 

^  Viz..  tlie  Kinij's  Bench,  the  Coinmon  Pleas,  and  the  Exchequer. 

^The  division  of  "written"  and  "unwritten"'  law  made  hv  PSlackstone.  and 
writers  who  have  copied  his  notions,  which  makes  the  "written"  identical  Avith  tiie 
statutory,  and  describes  the  entire  portion  embodied  in  judicial  decisions  as  "'un- 
written," is  simply  absurd.  This  definition  is  another  instance  of  Blackstone's 
mistakin<T  the  meaning  of  Roman  law  terms.  The  lex  non  scripta  is  customary, 
traditional,  preserved  in  the  pojiular  memory;  a  law  expressed  in  judicial  records 
or  in  statutes  is  written. 


5  OKIUIX  OF   Et^UlTY   J  UKitsrKL'DliXCE.  §  IG 

tire  foi'nuitive  period.  As  the  oorpiis  juris  civilis  contains  the  re- 
sults of  tlie  labors  of  the  lireat  i)hih)S()plii(;  jurists  who  brought  the 
jurisprudence  of  Rome  to  its  highest  point  of  exeellenee,  and  as  its 
rules,  so  far  as  they  are  eoncerued  with  private  rights  and  rela- 
tions, are  l)ased  upon  principles  of  justice  and  equity,  it  is  also 
certain  that  if  this  work  of  assimilation  had  thus  gone  on,  the 
common  law  of  England  would  from  an  early  day  have  been  molded 
into  the  likeness  of  its  original.  Through  the  decisions  of  its  own 
courts  the  principles  of  justice  and  equity  would  everywhere  have 
been  adopted,  and  would  have  appeared  throughout  the  entire 
structure.  All  this  would  have  been  accomplished  in  the  ordinary 
course  of  development,  by  the  ordinary  common-law  tribunals,  with- 
out any  necessity  for  the  creation  of  a  separate  court  w^hich  should 
be  charged  with  the  special  function  of  administering  these  prin- 
ciples of  right,  justice,  and  equity.  The  growth  of  the  English 
law  would  have  been  identical  in  its  external  form  with  that  of 
Rome;  it  would  have  proceeded  in  an  orderly,  unbroken  manner 
through  the  instrumentality  of  the  single  species  of  courts,  and 
the  present  double  nature  of  the  national  jurisprudence — the  two 
great  departments  of  "Law"  and  "Equity" — would  have  been  ob- 
viated. This  result,  however,  was  prevented  by  several  potent 
causes  which  checked  the  progress  of  the  law  towards  equity,  nar- 
rowed its  development  into  an  arbitrary  and  rigid  form,  with  little 
regard  for  abstract  right,  and  made  it  necessary  that  a  new  juris- 
diction should  be  erected  to  administer  a  separate  system  more  in 
accordance  with  natural  justice  and  the  rules  of  a  Christian  moral- 
ity.    These  causes  I  proceed  to  state. 

§  16.  Causes  Which  Made  a  Court  of  Equity  Necessary. — The 
one  which  was  perhaps  the  source  and  explanation  of  all  the  others 
consisted  in  the  rigid  character,  external  and  internal,  which  the 
common  law  soon  assumed  after  it  l:)egan  to  be  embodied  in  judicial 
precedents,  and  the  unreasoninsr  respect  shown  b}^  the  judges  for 
these  decisions  merely  as  procrdpnts.  There  w^as,  of  course,  a  time, 
before  the  character  of  the  law  as  a  lex  seripta  became  well  estab- 
lished, when  this  rigidity  and  inflexibility  was  not  exhibited.  The 
history  of  civilized  jurisprudence  can  show  nothing  of  the  same 
kind  comparable  with  the  blind  conservatism  with  which  the  com- 
mon-law judges  were  accustomed  to  regard  the  rules  and  doctrines 
which  had  once  been  formulated  by  a  precedent,  and  the  stubborn 
resistance  which  they  interposed  to  any  departure  from  or  change 
in  either  the  spirit  or  the  form  of  the  law  wMiich  had  been  thus 
established.  The  most  that  was  ever  allowed  was  the  extension 
of  a  doctrine  to  facts  and  circumstances  presenting^  some  points 
of  difference  from  those  which  had  already  foiTned   the   subject- 


§  17  EQUITY  JUKIsritUDKXCE.  fi 

matter  of  adjudication,  but  in  wliich  this  dili'erence  was  not  so 
<ii'eat  as  to  reciuire  a  substantial  modification  of  the  principle.  The 
frequent  occurrence  of  cases  in  which  the  rules  of  the  law  produced 
manifest  injustice,  and  of  cases  to  which  the  legal  principles  as 
settled  by  the  precedents  could  not  apply,  and  the  unwillingness 
of  the  common-law  judges  to  allow  any  modification  of  the  doc- 
trines once  established  by  their  prior  decisions,  furnished  both  the 
occasion  and  the  necessity  for  another  tribunal,  which  should  adopt 
different  methods  and  exhibit  different  tendencies.^ 

§  17.  When  the  same  difficulty  of  rigidnass,  arbitrariness,  and 
non-adaptation  to  the  needs  of  society  began  to  be  severely  felt  in 
the  administration  of  the  law  at  Rome,  the  magistrates,  as  I  have 
before  shown,  supplied'  the  remedy  by  means  which  they  already 
possessed.  The  praetors  constantly  invented  new  actions  and  de- 
fenses, which  preserved,  however,  a  resemblance  to  the  old ;  and 
at  length  they  Ijoldly  freed  the  jurisprudence  from  the  restraints 
of  the  ancient  methods,  and  introduced  the  notion  of  aequitas  by 
which  the  whole  body  of  judicial  legislation  became  in  time  recon- 
structed. All  the  process  of  development  was  completed  without 
any  violent  or  sudden  change  ^"n  the  judicial  institutions,  and  the 
Roman  law  thus  preserved  its  unit}^  and  continuity.  The  English 
common-law  judges,  on  the  other  hand,  set  themselves  with  an 
iron  determination  against  any  modificMtion  of  the  chictrines  and 
rules  once  established  by  precedent,  any  relaxation  of  the  settled 
methods  which  made  the  rights  of  suitors  to  depend  upon  the  strict- 
est observance  of  the  most  arbitrary  and  technical  forms,  anj^  in- 
troduction of  new  principles  which  should  bring  the  law  as  a  whole 
into  a  complete  harmony  with  justice  and  equity.  I  would  not  be 
understood  as  asserting  that  the  conservatism  of  the  courts  was  so 
absolute  as  to  prevent  any  improvement  or  progress  in  the  law 
from  age  to  age.  I  only  describe  the  general  attitude  and  tendency 
during  the  period  in  which  the  court  of  chancery  took  its  rise  and 
for  a  long  time  thereafter.  The  improvement  which  an  advancing 
civilization  effected  in  the  nation  itself  M^as  to  a  partial  extent 
reflected  in. the  law.  It  is  certain,  however,  beyond  the  possibility 
of  dispute,  that  the  English  common  law  was  always  far  behind 
the  progress  of  the  English  people,  and  in  very  many  particulars 
retained  the  impress  of  its  primitive  barbarism  down  to  the  present 
century.    By  the  continental  jurists  contemporary  with  Coke.  Lord 

^  1  Spence's  Kq.  -Iiir..  ])]\  ri2\.  P,22.  Thp  ciosoription  of  tho  text  is  not  intended  to 
apply  to  the  entire  history  of  the  common  law.  Another  spirit  has  animated  its 
judges  since  the  example  set  by  Lord  IMansfield.  nnd  its  inlierent  power  of  develop- 
ment, when  freed  from  t1ie  narrow  and  obstructive  notions  of  the  earlier  judixo^. 
iias  been  fully  exhibited  both  in  England  and  in  the  United  States. 


7  oiiiuiA"  ov  iH^rirv  ,jl  i;i.sri;i  ui:nce.  i  Id 

Hale,  or  Blackstoiie,  it  was  regarded  with  ininj^ied  feelings  of  won- 
tler  aud  conteiiipt  as  a  barbarous  code;  and  exeept  in  its  jjrovisions 
securing  the  personal  and  i)olitii'al  rights  of  the  individual,  and  in 
its  antagonism  to  the  slavisli  doctrine  of  the  Konian  jurisprudence, 
(^uod  placuit  principi  legis  vigoreni  habet,  it  was  a  barbarous  code. 
Parliamentary  legislation  occasionally  interfered  and  effected  a 
special  reform;  and  the  principles  of  equity  as  administered  by  the 
Court  of  Ciiancery  reacted  to  a  slight  degree  upon  the  law;  but 
still  the  eonnnon-hiAv  judges  as  a  body  exhibited  the  blind  con- 
servatism which  I  have  described  down  to  a  period  wholly  modei-n. 
With  the  partial  exception  of  Lord  Holt,  whose  masculine  intellect 
sometimes  broke  away  from  the  trammels,^  Lord  Mansfield  was 
the  first  great  English  judge  who  consciously,  and  with  systematic 
and  persistent  purpose,  adopted  the  policy  of  the  Roman  praetors, 
endeavored  to  impart  a  new  life  and  give  a  new^  direction  to  the 
growth  of  the  conniu)n  law,  and  by  means  of  equitable  principles 
in  combination  with  its  own  methods  to  reform  the  law  from  within. 
As  a  reward  for  these  innovations,  Lord  Mansfield  Avas  charged 
in  his  own  day- — and  the  accusation  has  been  handed  down  as  a 
part  of  judicial  history — with  ignorance  of  the  English  law.  Al- 
though the  work  which  Lord  ^Mansfield  began  was  interrupted  by 
his  narrow-minded  successor,  Lord  Kenyon,  it  has  been  taken  up 
and  carried  on  in  the  same  spirit  by  many  of  the  able  judges  who 
have  adorned  the  English  bench  within  the  present  century,  and 
by  the  state  and  national  courts  of  this  country,  until  the  common 
law  has  now  become  a  truly  scientific  and  philosophical  code. 

§  18.  A  second  cause  which  prevented  a  development  of  the 
national  jurisprudence  in  harmony  with  and  by  the  aid  of  the 
equitable  notions  contained  in  the  Roman  codes,  and  which  there- 
fore tended  to  the  creation  of  a  separate  court  of  chancery,  was 
the  fact  that  the  rules  concerning  real  property  and,  to  a  consid- 
erable extent,  those  concerning  personal  status  and  relations,  were 
feudal  in  their  origin  and  nature. 

§  19.  Although  the  feudal  institutions  in  their  integrity  were 
undoubtedly  an  obstacle  to  the  introduction  of  Roman  law  prin- 
ciples, and  the  development  of  one  homogeneous  jurisprudence  for 
the   English    people,    still    the    obstjide    was   not   insuperable.      The 

'  Amon<r  tlie  rocent  Enjjlisli  jiidirps  wlio  Imvp  represented  the  ancient  rather  than 
thf  modem  tendencies  of  tlie  lav:,  and  wlio  have  exalted  its  rules  of  form,  Baron 
Parke  stands  the  foremost,  and  has  ;ieir.a!ly  obtained  the  repnialion  of  a  jurist, 
because  he  was  able  to  discuss  and  state  these  arbitrary  dojjnias  in  a  scientific 
manner,  and  to  clothe  them  with  some  appearance  of  a  philosopliic  system.  But 
in  no  series  of  English  reports  are  the  ri2;hts  of  suitors  made  to  depend  upon  a 
compliance  with  mere  forms,  and  the  decisicms  made  to  turn  upon  mere  tech- 
nicalities,  more  than    in   the   volumes   of  Meeson    and    Welsbv. 


§  20  EQUITY    JURISPRUDENCE.  8 

same  institutions  existed  on  the  continent,  and  in  Germany,  espe- 
cially, they  have  largely  modified  the  law  down  to  the  time  when 
the  present  system  of  codes  was  adopted.  Notwithstanding  this 
fact,  the  Eoman  law  has  entered  as  the  principal  element  into  the 
jurisprudence  of  every  western  continental  nation,  and  through  it 
the  doctrines  of  equity  have  been  everywhere  accepted,  not  as  con- 
stituting a  separate  department,  but  as  pervading  and  influencing 
the  whole. 

§  20.  The  third  cause  which  I  shall  mention,  and  it  was  an  ex- 
ceedingly important  one  in  its  effects  upon  the  jurisdiction  of  chan- 
cery, which  had  already  become  (luite  extensive,  arose  from  the 
position  and  policy  of  the  kings,  the  Parliament,  and  the  nation 
towards  the  church  of  Kome.  The  English  kings  had  maintained 
a  long  and  bitter  struggle  with  the  Pope  and  his  emissaries  among 
the  higher  ecclesiastics  to  maintain  the  independence  of  the  crown 
and  of  the  Anglican  branch  of  the  church.  In  the  reign  of  Edward 
III.,  the  exactions  of  the  Papal  See  became  peculiarly  hateful  to 
the  King  and  to  the  nation.  Having  the  support  of  his  Parliament, 
Edward  refused  payment  of  the  tribute  which  had  been  demanded 
by  the  Pope,  and  measures  were  taken  to  prevent  any  further 
encroachments.  A  general  hostility,  or  at  least  a  sentiment  of  op- 
position, to  the  Papal  court  and  to  everything  connected  with  it 
had  sprung  up  and  spread  among  all  ranks  of  the  laity.  The 
Roman  law  fell  under  this  common  aversion.  Partly  from  its 
name,  partly  because  it  was  supported  by  the  Papal  See,  both  on  ac- 
count of  its  connection  with  the  canon  law,  and  on  account  of  its 
doctrines  favorable  to  absolutism,  and  partly  because  a  knowledge 
of  it  prevailed  most  extensively  among  the  ecclesiastics,  so  that  it 
was  popularly  regarded  as  an  instrument  of  the  church,  the  Roman 
law,  which  had  been  treated  with  favor  by  Henry  II.,  Henry  III., 
and  Edward  I.,  and  by  the  judges  themselves  in  former  reigns,  be- 
came an  object  of  general  dislike,  and  even  antipathy.  In  the  reign 
of  Henry  HI.  the  barons  formally  declared  that  they  would  not 
suff'er  the  kingdom  to  be  governed  by  the  Roman  laAV;^  and  the 
common-law  judges  prohibited  it  from  being  any  longer  cited  in 
their  courts.  This  action  of  the  barons  and  judges  was  certainly 
a  mistake,  and  it  produced  an  opposite  effect  from  the  one  intended. 
The  Roman  law,  instead  of  being  banished,  was  simply  transferred 

'Quod  noluenint  lesjes  Angliae  miitare,  quae  usque  ad  illud  tenipus  iisitatae 
fuerunt  et  approbatae."  Tlie  occasion  upon  which  this  memorable  declaration  was 
made,  at  the  Parliament  of  iMerton,  A.  D.  12.36,  was  the  attempt  of  the  eccle- 
siastics to  introduce  the  doctrine  that  illegitimate  children  are  made  legitimate 
by  the  subsequent  marriage  of  their  parents.  This  doctrine  Avas  peculiarly  dis- 
tasteful to  the  Englisli  barons,  since  it  intefered  with  the  feudal  rules  of  inheri- 
tance. 


9  ORIGIN   OF   EQUITY  JURISPRUDENCE.  §  31 

to  another  court,  which  was  not  g-overned  by  common-law  doctrines. 
As  the  law  courts  intentionally  cut  themselves  off  from  all  oppor- 
tunity of  borrowing-  equitable  principles  from  this  foreign  source, 
the  necessity  arose  for  a  separate  tribunal,  in  which  those  principles 
could  be  recognized.  It  therefore  followed,  immediately  upon  this 
prohibition,  that  the  hitherto  narrow  jurisdiction  of  the  Court  of 
Chancery  was  greatly  increased,  and  extended  over  subject-matters 
which  required  an  ample  and  constant  use  of  Roman  law  doctrines. 
To  the  same  cause  was  chietiy  due  the  selection,  which  was  really 
a  necessity,  of  chancellors  from  among  the  ecclesiastics,  during  the 
period  while  the  jurisdiction  of  the  court  was  thus  enlarged  and 
established. - 

§  21.  The  Earliest  Common-law  Actions  and  Procedure. — The  last 
cause  which  I  shall  mention,  and  practically  the  most  immediate 
and  efficient  one  in  its  operation  to  prevent  any  expansion  of  the 
common  law,  so  as  to  obviate  the  necessity  of  a  separate  equitable 
jurisdiction,  was  the  peculiar  procedure  which  was  established  by 
the  courts  at  a  very  early  day,  and  to  which  they  clung  with  a 
surprising  tenacity.  This  procedure  furnished  a  fixed  number  of 
"forms  of  action."  Every  remedial  right  must  be  enforced  through 
one  of  these  forms;  and  if  the  facts  of  a  particular  case  were  such 
that  neither  of  them  was  appropriate,  the  injured  party  was  with- 
out any  ordinary  legal  remedy,  and  his  only  mode  of  redress  was 
by  an  application  made  directh^  to  the  King.  The  initial  step  in 
eveiy  action  was  a  written  document  issued  in  the  name  of  the 
King,  called  a  Avrit,  which  was  both  the  commencement  and  the 
foundation  of  all  subsequent  proceedings.  This  document  gave  a 
brief  summary  of  the  facts  upon  which  the  right  of  action  was 
based,  and  contained  certain  technical  formulas  indicating  what 
form  of  action  was  bi'ought  and  what  remedy  was  demanded.  If 
it  had  been  possible  for  suitors  or  the  officers  of  the  court  to  mul- 
tiply these  writs  indefinitely,  so  as  to  meet  all  possible  circumstances 
and  social  relations,  there  would  have  been  no  difficulty,  and  the 
procedure  could  have  been  expanded  so  as  to  embrace  every  variety 
of  wrong  and  every  species  of  remedial  right  which  might  subse- 
quently arise  in  the  course  of  the  national  development.  But  there 
was  absolutely  no  such  possibility,  and  herein  was  the  essential 
vice  of  the  system.  The  nature  of  these  writs  was  fixed,  and  could 
not  be  substantially  changed.  A  writ  had  been  settled,  not  only 
for  each  of  the  different  "forms  of  action,"  but  for  the  facts,  cir- 
cumstances, and  events  which  could  constitute  the  subject-matter 
of  the  particular  actions  embraced  within  each  one  of  these  sev- 
eral "forms  of  action."    The  precedents  of  all  the  writs  which  had 

-  1   Spenco's   Kq.  .Iiir..  p.   347. 


§  23  EQUITY   JURISPRUDENCE.  10 

been  thus  established  were  kept  in  an  office  connected  with  the 
chancery,  called  the  Registra  Brevium.  Certain  officers  of  the  chan- 
cery were  charged  "with  the  duty  of  issuing  the  writs  to  plaintiffs, 
and  this  they  did  by  selecting  and  copying  the  one  which  agreed 
with  the  facts  of  the  applicant's  case.  If  no  writ  could  be  found 
in  the  collection  which  substantially  corresponded  with  the  facts 
constituting  the  ground  of  complaint,  then  the  plaintiff  could  have 
no  action.  The  chancery  clerks  could  not  draw  up  entirely  new 
writs,  nor  alter  the  existing  ones  in  any  substantial  manner;  it 
is  probable,  however,  that  they  assumed  to  make  some  slight  changes, 
so  as  to  accommodate  the  recitals  to  the  facts  of  special  cases,  but 
this  power  could  only  be  exercised  within  the  narrowest  limits. 
There  were,  however,  certain  kinds  of  facts  connected  with  every 
cause  of  action,  which  might  be  varied.  The  statements  in  the 
writs  were  somewhat  general  in  their  terms,  some  applying  to  land, 
some  to  chattels,  others  to  persons,  debts,  torts,  and,  of  course, 
the  particulars  of  quantity,  size,  value,  time,  place,  amount  of  dam- 
age, and  the  like,  w^ere  not  material,  and  could  be  varied  without 
limit.  One  other  fact  of  the  utmost  importance  remains  to  be  men- 
tioned. Although  the  chancery  clerks  decided  in  the  first  place 
upon  the  form  and  kind  of  writ  in  every  case,  and  thus  determined 
the  species  of  action  to  be  brought,  this  decision  did  not  in  the 
least  protect  or  secure  the  plaintiff  after  he  had  commenced  his 
action.  When  the  action  came  before  the  common-law  courts,  the 
judges  assumed  and  constantly  exercised  the  power  of  determining 
the  sufficiency  of  the  writ ;  and  if  they  held  that  it  was  not  the 
proper  one  for  the  case,  or  that  its  recitals  of  facts  or  formulas 
were  imperfect  or  mistaken,  no  attention  Avas  given  to  the  prior 
decision  of  the  chancery  officials,  the  writ  and  action  were  dis- 
missed, and  the  plaintiff'  thrown  out  of  court. 

§  22.  The  ancient  actions  of  the  common  law,  prior  to  the  stat- 
utory legislation  hereafter  mentioned,  as  described  by  Bracton, 
w-ere  of  two  general  classes:  1.  Those  which  concerned  lands 
and  all  estates  or  interests  therein;  and  2.  Those  which  concerned 
persons,  chattels,  contracts,  and  torts.  The  former  class,  the  Beal 
Actions,  included  a  considerable  number  of  particular  actions,  adapt- 
ed to  various  estates  and  rights,  some  for  determining  the  title, 
others  for  the  recovery  of  possession  merely ;  and  were  all  technical 
and  arbitrary  in  their  modes  of  procedure.  The  action  of  ejectment 
by  which  they  were  superseded  Avas  a  growth  of  later  times.  The 
second  class,  the  Personal  Actions,  contained  two  actions  ex  con- 
tractu, "Debt"  and  "Covenant,"  and  two  ex  delicto,  "Trespass" 
and  "Detinue."  "Replevin,"  which  was  one  of  the  most  ancient 
judicial   proceedings  known  to  the  English  law,  was  so  restricted 


11  oiaciiN  OF  Ki^iiTv  .jriii.si'iu  i)i;.\(-E.  §  34 

in  its  use  to  special  ciicuiii.stances  and  inferior  courts  that  it  was 
not  classified  among  the  onlinary  common-law  forms  of  action. 
The  functions  of  these  four  personal  actions  are  so  well  known  that 
lU)  description  of  them  is  necessary, 

§  23.  From  this  enumeration  it  is  plain  that  the  common  law 
furnished  a  ver}^  meager  system  of  remedies,  utterly  insufificient 
for  the  needs  of  a  civilization  advancing  beyond  the  domination 
of  feudal  ideas.  The  appliances  for  maintaining  rights  over  land 
were  perhaps  sufficient  in  number  and  in  variety,  but  they  were 
excessively  cumbrous,  and  the  rights  of  suitors  were  liable  to  be 
defeated  by  some  failure  in  technical  matters  of  form.  The  lack 
of  remedial  instruments  was  chiefly  felt  in  the  class  of  personal 
actions.  No  contract  could  be  enforced  unless  it  created  a  certain 
debt,  or  unless  it  was  embodied  in  a  sealed  writing.  No  means 
was  given  for  the  legal  redress  of  a  wrong  to  person  or  property, 
unless  the  tortious  act  was  accompanied  with  violence,  express  or 
implied.  The  injuries  and  breaches  of  contract  which  now  form  th(^ 
subject-matter  of  so  nuich  litigation  were  absolutely  without  any 
legal  remedy.  It  is  true,  the  ancient  records  show  a  few  instances 
in  which  the  action  of  trespass  was  extended  to  torts  without  vio- 
lence, such  as  defamation,  but  these  cases  were  exceptional  and 
governed  by  no  legal  rule.  The  chief  defect,  however,  of  the  legal 
jirocedure,  which  rendered  it  incomplete  as  a  means  of  administer- 
ing justice,  and  wholly  insufficient  for  the  needs  of  a  people  whose 
social  relations  were  constantly  growing  more  complex,  consisted 
in  its  inability  to  adapt  its  actual  reliefs  to  the  varying  rights  and 
duties  of  litigants.  Whatever  might  be  the  form  of  action  used! 
the  remedy  conferred  by  its  judgment  was  either  a  recovery  of 
the  possession  of  land,  a  recovery  of  the  possession  of  chattels,  or 
a  recovery  of  money.  Although  these  simple  species  of  relief  might 
be  suited  to  a  primitive  society,  the  necessity  of  other  and  more 
specific  forms,  adapted  to  various  circumstances  and  relations,  Avas 
felt  as  soon  as  the  progress  of  the  nation  towards  a  higher  civiliza- 
tion had  fairly  begun.  From  the  causes  which  I  have  thus  briefiy 
described,  the  common-law  courts  were  closed  against  a  large  and 
steadily  increasing  class  of  rights  and  remedies,  and  a  distinct 
tribunal,  with  a  broader  and  more  equitable  jurisdiction  and  mode 
of  procedure,  became  an  absolute  necessity,  or  else  justice  would 
be  denied. 

§  24.  Statute  of  Edward  I.  Concerning  New  Writs. — Parliament 
at  length  interposed  with  a  reformatory  measure  which  was  in- 
tended to  be  radical,  and  which  perhaps  might  have  checked  the 
growing  jurisdiction  of  chancery  if  the  common-law  judges  had 
treated   the  statute   in  the  same   liberal   spirit   with   which   it    Mas 


§  20  EQUITY    JUKlarULUIiXLE.  12 

enacted.  As  all  writs  for  the  commencement  of  actions  were  drawit 
np  by  the  clerks  in  chancery,  the  legislature  attempted  to  remove 
all  the  existing-  difficulties  by  enlarging  the  powers  of  these  officials, 
and  conferring  upon  them  a  wide  discretion  in  the  invention  of 
new  forms  of  writs,  suitable  to  new  conditions  of  fact,  and  provid- 
ing for  remedial  rights  hitherto  without  any  means  of  enforcement. 
In  the  reign  of  Edward  I.  the  following  statute  was  passed:^ 
'"Whensoever  from  henceforth  it  shall  fortune  in  chancery  that  in 
one  ease  a  writ  is  found,  and  in  a  like  case  falling  under  Ul-c  law 
and  requiring  UJ,-e  remechj  is  found  none,  the  clerks  of  the  chan- 
cery shall  agree  in  making  the  writ,  or  the  plaintitf  may  adjourn 
it  into  the  next  Parliament,  and  let  the  cases  be  written  in  which 
they  cannot  agree,  and  let  them  refer  themselves  to  the  next  Parlia- 
ment, and  by  consent  of  men  learned  in  the  law  a  writ  shall  be 
made,  lest  it  should  happen  after  that  the  court  should  long  time 
fail  to  )})inistrr  iiis:tiir  unto  complainant.'^.'" 

§  25.  Limited  Results  of  this  Legislation. — The  general  intent 
of  this  enactment  is  perfectly  clear,  and  it  should  have  been  liber- 
ally and  largely  construed  in  accordance  with  that  intent.  The 
common-law  judges,  however,  applied  to  it  a  strict  and  narrow 
construction,  a  literal  and  verbal  interpretation,  wholly  foreign  to 
its  design  and  meaning.  Although  by  its  means  the  new  common- 
law  forms  of  action  known  as  "Case,"  "Trover,"  and  "Assumpsit" 
Avere  invented,  which  in  later  times  have  been  the  most  potent 
instruments  for  the  development  and  improvement  of  the  common 
law  itself/  yet  so  far  as  the  legislature  proposed  to  enlarge  the 
scope  of  the  law  by  the  introduction  of  equitable  principles  and 
remedies,  and  thereby  to  stop  the  growth  of  the  equitable  jurisdic- 
tion of  chancery,  that  purpose  was  wholly  frustrated  by  the  action 
of  the  law  judges  in  construing  and  enforcing  the  statute.  The 
main  points  in  which  this  restrictive  interpretation  was  made  ef- 
fective, so  as  to  defeat  the  ultimate  object  of  the  statute,  were  the 
following: — 

§  26.  1.  The  act  permitted  the  framing  of  new  writs  in  cases 
"falling  under  lilr  law  and  requiring  lil-c  remedy''^  with  the  exist- 
ing ones.  Upon  this  permissive  language  the  courts  put  a  highly 
restrictive  meaning.  As  the  common-law  forms  of  action  gave 
only  three  different  kinds  of  remedies,  every  remedy  obtained 
through  the  means  of  the  new  writs  must  be  lil-e  one  of  these  three 
species.     Thus  at  one  blow  all  power  was  denied   of  awarding  to 

•  13  Edw.  T..  cliap.  I.  §  24. 
^I  liave  elsewhere  described  the  manner  in  which  these  new  actions  were  inven- 
ted,— one  of  the  most  interesting  events  in  the  history  of  the  English  law.     See 
Pomeroy's  Tntroduotion  to  IMunicipal  Law,  §§  200-204. 


13  ORIGIN   OF  EQUITY   J  UltlSFKLDENCE.  §  29 

suitors  any  special  etiiiitable  relief  which  did  not  fall  within  one 
or  the  other  of  these  three  classes,  and  ])arties  who  required  such 
special  forms  of  remedy  were  still  compelled  to  seek  them  from 
another  tribunal.  The  same  was  true,  irrespective  of  the  particular 
kinds  of  relief,  of  all  cases  which  might  arise,  quite  dissimihir  in 
their  facts  and  circumstances  from  those  to  which  the  existing  forms 
of  action  applied;  not  falling  under  "like  law,"  they  were  held 
to  be  without  the  scope  of  the  statute,  and  the  complainants  could 
obtain  no  redress  from  the  common-law  courts. 

§  27.  2.  The  statute  only  provided  for  new  writs  on  behalf  of 
plaintiffs.  As  civilization  progressed,  and  the  relations  of  men 
grew  more  intricate  from  increase  of  commerce,  trade,  and  other 
social  activities,  new  defenses  as  well  as  new  causes  of  action  con- 
stantly arose.  Although  these  were  not  within  the  letter  of  the 
act,  they  were  fairly  within  its  spirit.  But  the  law  courts  adhered 
to  the  letter,  and  ignored  the  spirit.  If,  therefore,  the  new  matter 
of  defense  did  not  fall  within  the  prescribed  formulas  of  the  legal 
actions,  and  did  not  conform  to  the  established  rules  defining  legal 
defen.ses.  the  party  must  seek  relief  in  some  manner  from  the 
jurisdiction  of  the  chancellor.^ 

§28.  3.  Although  the  statute  authorized  the  "clerks  of  chan- 
cery" to  frame  the  ncAv  writs,  and  seemed  by  implication  to  confer 
upon  them  the  absolute  powers  with  respect  to  the  matter  which, 
it  was  conceded,  were  held  by  Parliament,  still  the  common-law 
judges  assumed  for  themselves  the  same  exclusive  jurisdiction  to 
pass  upon  the  propriety  and  validity  of  the  new"  w^rits  wdiich  they 
had  always  exercised  over  those  issued  by  the  clerks  prior  to  the 
statute.  They  did  not  regard  the  action  of  the  chancery  oiificials 
in  sanctioning  a  writ  which  w^ould  give  a  ncAV  remedial  right  to 
the  plaintiff  as  at  all  binding,  and  in  fact  rejected  all  the  new 
writs  contrived  in  pursuance  of  the  statute,  which  did  not  closely 
conform  to  some  one  of  the  existing  precedents.  The  chancery 
clerks,  being  ecclesiastics  and  acquainted  Avith  the  Roman  law.  seem 
to  have  fashioned  most  of  their  new  writs  in  imitation  of  the  Roman 
formulae;  but  all  these  innovations  upon  the  established  methods 
the  law  courts  refused  to  accept. 

§  29.  Thi.s  legislation,  however,  produced  in  the  course  of  time 
the  most  beneficial  effects  upon  the  development  of  the  common 
law  itself,  independently  of  the  chancery  jurisdiction.  I^pon  the 
basis  of  certain  new  writs  contrived  by  the  chancery  clerks  and 
adopted  by  the  law  judges,  three  additional  legal  actions  were  iu- 

'  This  jnrisdic-tioTi.  to  he  ofToftivo.  woiihl  frojiprally  ho  pxoroispd  hy  means  of  en- 
iniiiinc:  the  h'gal  art  ion  hion<rht  aeainst  the  parly  applying  to  the  ehancellor,  and 
in  whieli  liis  attempted  defense  had  h^en  rejeet('(h 


§  31  EQUITY    JnUSPRUDKNCE.  14 

vented,  "Trespass  on  the  Case,"  and  its  branches  or  offshoots, 
"Trover,"  and  "Assumpsit,"  which  have  been  the  most  efficient 
and  useful  of  all  the  forms  of  legal  actions  in  promoting  the  growth 
of  an  enlightened  national  jurisprudence.  Without  the  action  of 
"Case"  applicable  to  an  unlimited  variety  of  wrongs,  and  afford- 
ing an  opportunity  for  enforcing  the  maxim,  Ubi  jus  ibi  remedium, 
and  the  action  of  "Assumpsit,"  by  which  the  multiform  contracts 
growing  out  of  trade  and  commerce  could  be  judicially  enforced, 
it  is  safe  to  say  that  the  common  law  of  England  would  have  re- 
mained stationary  in  the  condition  which  it  had  reached  at  a  time 
not  later  than  the  reigii  of  Edward  III.  These  two  actions  resem- 
bled the  actiones  bonae  fidei  of  the  Roman  law,  in  admitting  mo- 
tives of  natural  right  and  justice  for  the  decision  of  causes,  instead 
of  purely  technical  and  arbitrary  rules  of.  form.  Wherr  at  a  still 
later  day  the  principles  of  equity  began  to  react  upon  the  law, 
and  the  common-law  judges  freely  applied  these  equitable  doctrines 
in  adjudicating  upon  legal  rights,  it  was  chiefly  through  these  ac- 
tions of  Case  and  Assumpsit  that  the  work  of  reforming  and  re- 
constructing the  conmion  law  was  accomplished.  The  actions  of 
Trespass,  Covenant,  and  Debt  have  remained,  even  to  the  present 
day,  technical  in  their  modes  and  arbitrary  in  their  rules;  but 
the  actions  of  Case,  Trover,  and  Assumpsit  have  been  free  from 
formal  restraints,  flexible  in  their  adaptability,  capable  of  being 
administered  in  conformity  with  equitable  doctrines.  Through 
their  means,  many  of  the  rules  which  were  originally  established 
))y  the  Chancellor  have  been  incorporated  into  the  law,  and  are 
now  mere  legal   commonplaces.^ 

§  30.  Commencement  and  Progress  of  the  Chancery  Jurisdiction. 
— I  have  thus  far  described  the  causes  existing  in  the  early  condi- 
tion of  the  common  law,  and  in  the  attitude  of  the  law  courts, 
which  rendered  necessary  a  separate  tribunal  with  an  equitable 
jurisdiction,  and  a  procedure  capable  of  being  adapted  to  a  variety 
of  circumstances,  and  of  awarding  a  variety  of  special  remedies. 
I  now  proceed  to  state  the  origin  of  this  tribunal,  and  the  principal 
events  connected   with   the   establishment   of  its  jurisdiction. 

§31.  Original  Powers  of  the  King's  Council. — Under  the  early 
Norman  kings,  the  Crown  was  aided  by  a  Council  of  Barons  and 
high  ecclesiastics,  which  consisted  of  two  branches — the  General 
Council,  which  was  occasionally  called  together,  and  was  the  his- 
torical predecessor  of  the  Parliament,  and  a  Special  Council,  very 
much  smaller  in  number,  which  was  in  constant  attendance  upon 
the  King,  and  was  the  original  of  the  present  Privy  Council.    Tt  was 

'  For  an  account  of  the  origin  .nnd  progress  of  these  actions,  see  1  Rpence's  Eq. 
.Tur.,  pp.  2,37-254;  Pomernv's  Tntrodnction  to  Municipal  Law,  §§  200-204. 


15  ORIGIN   OF   EC^UIIY   J  UlUsrUUDEXCE.  §33 

composed  of  certain  high  officials,  as  the  Chancellor,  the  Treasurer, 
the  Chief  Justiciary,  and  other  members  named  by  the  King.  This 
Special  Council  aided  the  Crown  in  the  exercise  of  its  prerogative, 
which,  as  has  been  stated,  embraced  a  judicial  function  over  mat- 
ters that  did  not  or  could  not  come  within  the  jurisdiction  of  the 
ordinary  courts.  The  extent  of  this  judicial  prerogative  of  the 
King  was,  from  its  nature  and  from  the  unsettled  condition  of  the 
country,  very  ill  defined.  It  appears  from  an  ancient  writer  that 
in  the  time  of  Henry  I.  the  Select  Council  generally  took  cognizance 
of  those  causes  wdiich  the  ordinary  judges  were  incapable  of  deter- 
mining. From  later  records  it  appears  that  the  council  acted  on 
all  applications  to  obtain  redress  for  injuries  and  acts  of  oppres- 
sion, wherever,  from  the  heinousness  of  the  offense,  or  the  rank 
and  power  of  the  offender,  or  any  other  cause,  it  was  probable  that 
a  fair  trial  in  the  ordinary  courts  would  be  impeded,  and  also  wher- 
ever, by  force  and  violence,  the  regular  administration  of  justice 
was  hindered.  The  council  also  seems  to  have  had  a  jurisdiction 
in  cases  of  fraud,  deceit,  and  dishonesty,  which  were  beyond  the 
reach  of  common-law  methods.  It  is  evident,  however,  that  this 
extraordinary  jurisdiction  of  the  King  and  council  was  not  always 
exercised  without  opposition,  especially  w^hen  the  matters  in  con- 
troversy fell  within  the  authority  of  the  common-law  courts. 

§  32.  Original  Common-law^  Jurisdiction  of  the  Chancellor. — Side 
by  side  \vith  this  extraordinary  or  prerogative  judicial  function 
exercised  by  the  King,  or  by  the  Select  Council  in  his  name  and 
stead,  there  grew  up  a  jurisdiction  of  the  Chancellor.  This  is  not 
the  place  to  detail  the  numerous  special  powers  of  that  officer,  f(U' 
we  are  only  concerned  with  those  which  were  judicial.  It  is  certain 
that  the  Chancellor  possessed  and  exercised  an  important  ordinari/ 
—  that  is,  common-law — jurisdiction,  similar  to  that  held  by  the  com- 
mon-law courts,  and  wholly  independent  of  the  extraordinary  pre- 
rogative jurisdiction  originally  possessed  by  the  King  and  council, 
and  afterwards  delegated  to  the  Chancellor  himself.  The  proceed- 
ings in  causes  arising  before  the  Chancellor,  under  this,  his  ordi- 
nary jurisdiction,  were  commenced  by  common-law  process,  and 
not  by  bill  or  petition ;  he  could  not  summon  a  jury,  but  issues  of 
fact  in  these  proceedings  were  sent  for  trial  before  the  King's 
Bench.  When  this  ordinary  common-law  jurisdiction  of  the  Chan- 
cellor commenced  is  not  knoM-n  with  certainty:  it  had  risen  in 
the  reign  of  Edward  III.  to  be  extensive  and  important,  and  it 
liad  probably  existed  through  several  rei2:ns. 

§  33.  Jurisdiction  of  Grace  Transferred  to  the  Chancellor. — In 
addition  to  this  ordinary  function  as  a  common-law  judge,  the 
Chancellor  began  at   an   earlv  dav  to   exercise  the   extraordinary 


§  35  EQUITY   JURISPKUDEXCE.  16 

jurisdiction — that  of  Grace — by  delegation  either  from  the  King 
or  from  the  Select  Council.  The  commencement  of  this  practice 
cannot  be  fixed  with  any  precision.  It  is  probable  that  the  judicial 
power  of  the  Chancellor  as  a  law  judge,  and  his  consequent  famil- 
iarity with  the  laws  of  the  realm,  and  experience  in  adjudicating, 
were  the  reasons  why,  when  any  case  came  before  the  King  which 
appealed  to  his  judicial  prerogative,  and  which  for  any  cause  could 
not  be  properly  examined  by  the  council,  such  case  was  naturally 
referred  either  by  the  Crown  or  by  the  council  to  the  Chancellor 
for  his  sole  decision.  Whatever  may  have  been  the  motives,  it  is 
certain  that  the  Chancellor's  extraordinary  equitable  jurisdiction 
commenced  in  this  manner.  At  first  it  was  a  tentative  proceeding, 
governed  by  no  rule,  the  reference  being  sometimes  to  the  Chan- 
cellor alone,  sometimes  to  him  in  connection  with  another  official, 
and  even  occasionally  to  another  official  without  the  Chancellor. 
In  the  reign  of  Edward  I.,  such  references  of  eases  coming  before 
the  King  and  council  to  the  Chancellor,  either  alone  or  in  connec- 
tion with  others,  were  very  common,  although  the  practice  of 
selecting  him  alone  had  not  yet  become  fixed. 

§  34.  The  practice  of  delegating  the  eases  which  came  before 
the  prerogative  judicial  function  of  tire  Crown  and  its  council  to 
the  Chancellor,  for  his  sole  decision,  having  once  commenced,  it 
rapidly  grew,  until  it  became  the  common  mode  of  dealing  with 
such  controversies.  The  fact  that  the  attention  of  the  King  and 
of  his  high  officials  was  constantly  engaged  in  matters  of  state 
administration  rendered  this  method  natural  and  even  necessary. 
In  the  reign  of  Edward  III.,  the  Court  of  Chancery  was  in  full 
operation  as  the  ordinary  tribunal  for  the  decision  of  causes  which 
required  an  exercise  of  the  prerogative  jurisdiction,  and  the  grant- 
ing of  special  remedies  which  the  common-law  courts  could  not 
or  would  not  give.  Edward  III.  established  thi.s  jurisdiction,  which 
hitherto  had  been  merely  permissive,  upon  a  legal  and  permanent 
foimdation.  In  the  twenty-second  year  of  his  reign,  by  a  general 
writ,  he  ordered  that  all  such  matters  as  were  of  Grace  should  be 
referred  to.  and  dispatched  by  the  Chancellor,  or  by  the  Keeper  of 
the  Privy  Seal.  The  Court  of  Cliancery.  as  a  regular  tribunal  for 
the  administering  of  equitable  relief  and  extraordinary  remedies, 
is  usually  spoken  of  as  dating  from  this  decree  of  King  Edward 
III. ;  but  it  is  certain  that  the  royal  action  was  merely  confirmatory 
of  a  process  which  had  gone  on  through  many  preceding  years. 

§  35.  The  delegation  made  by  this  order  of  the  King  conferred 
a  general  authority  to  give  relief  in  all  matters,  of  what  nature 
soever,  requiring  the  exercise  of  the  prerogative  of  (rracc.  This 
authority   differed   wholl}^  from   that   upon   Avhich   the   jurisdiction 


17  ORIGIN  OF   EQUITY  JURISPRUDENCE.  §  36 

of  the  law  courts  was  based.  These  hitter  tribunals  acquired  juris- 
diction in  each  case  which  came  before  them  by  virtue  of  a  delega- 
tion trom  the  Crown,  contained  in  the  particular  writ  on  which  the 
case  was  founded,  and  a  writ  for  that  purpose  could  only  be 
issued  in  cases  provided  for  by  the  positive  rules  of  the  common 
law.  This  was  one  of  the  fundamental  distinctions  between  the 
jurisdiction  of  the  English  common-law  courts,  under  their  ancient 
organization,  and  that  of  the  English  Court  of  Chancery.^  The 
principles  upon  which  the  Chancellor  was  to  base  his  decision  in 
controversies  coming  within  the  extraordinary  jurisdiction  thus  con- 
ferred upon  him  were  Honesty,  Equity,  and  Conscience.-  The 
usual  mode  of  instituting  suits  in  chancery  became,  from  this  time, 
that  by  bill  or  petition,  without  any  writ  issued  on  behalf  of  the 
plaintiff. 

§  36.  Development  of  the  Equitable  Jurisdiction. — Having  tuyii 
sliown  the  historical  origin  of  the  chancery  as  a  court  distinct  Irorn 
the  common-law  tribunals,  I  shall  now  describe  the  growth  of  the 
equitable  jurisdiction  until  it  became  settled  upon  the  certain  basis 
of  principles  which  has  continued  without  substantial  change  to 
the  present  time.  In  the  earliest  periods  the  jurisdiction  was  ill 
defined,  and  was  in  some  respects  even  much  more  extensive  than 
it  afterwards  became  when  the  relations  between  the  equity  and 
the  common-law  tribunals  were  finally  adju.sted.  This  was  chiefly 
due  to  the  troublous  times,  the  disturbed  condition  of  the  country, 
while  violence  and  oppression  everj'^where  "prevailed,  and  the  ordi- 
nary courts  could  give  but  little  protection  to  the  poor  and  the 
weak;  when  the  powerful  landowners  were  constantly  invading 
the  rights  of  their  inferiors  and  overawing  the  local  magistrates. 
In  the  reign  of  Richard  II.  the  Chancellor  actually  exercised  some 
criminal  jurisdiction  to  repress  violence,  and  restrain  the  lawless- 
ness of  the  great  against  the  poor  and  helpless.  He  also  entertained 
suits  concerning  land,  for  the  recovery  of  possession  or  the  estab- 

*  This  distinction  has  never  existed  in  the  United  States.  The  hi.c^hest  courts  of 
law  and  of  equity,  hoth  state  and  national,  derive  their  jurisdiction  either  from 
the  constitutions  or  from  the  statutes.  There  is  no  such  thing  as  a  delefjation  of 
authority  from  the  executive  or  the  legislature  to  these  courts ;  for  the  authority 
of  the  coivrts  and  of  the  other  hranches  of  the  government  is  directly  derived  from 
the  same  source. — the  organic  body  politic  composing  the  state  or  the  nation. 

■  The  following  case  illustrates  the  kind  of  matters  brousht  before  the  King  and 
referred  to  the  chancellor:  Lady  Audley.  without  joining  her  husband,  sued  her 
father-in-law  to  obtain  a  specific  performance  of  certain  covenants  in  her  favor 
in  tlie  deed  of  settlement  made  on  her  marriage.  Nothing  could  be  more  opposed 
to  common-law  doctrines.  This  was  in  3.5  Edward  ITT.,  and  it  shows  that  two 
most  important  heads  of  equity  jurisprudence  were  then  known, — the  protection 
of  the  wife's  separate  interests,  and  specific  performance  of  contracts.  See  Sir 
F.  Palgrave's  History  of  the  Council,  pp.  04,  67. 


j^.KP^ 


•§38  EQL'ITY    JLia.SI'KL'DEN'CE.  lb 

lishment  of  title,  and  even  actions  of  trespass,  when  there  had  been 
dispossession  with  great  violence/  A  strong  opposition  naturally 
arose  to  these  alleged  usurpations  by  the  Chancellors;  but  they 
persevered  as  long  as  was  necessary,  and  were  supported  by  the 
King  and  council. 

§  37.  There  •  were  other  reasons,  inhering  in  the  nature  of  its 
procedure  and  extent  of  its  remedial  functions,  which  operated  to 
extend  the  authority  and  increase  the  business  of  the  chancery 
court.  It  possessed  and  exercised  the  power,  which  belonged  to  no 
common-law  court,  of  ascertaining  the  facts  in  contested  cases  by 
an  examination  of  the  parties  under  oath, — the  "probing  their  eon- 
sciences," — a  method  which  gave  it  an  enormous  advantage  in  the 
<liscovery  of  truth,  and  which  has  only  within  our  own  times  been 
extended  to  all  other  tribunals.  Again,  the  Chancellor  was  able 
to  9'rant  the  remedy  of  prevention,  which  was  AvhoUy  beyond  the 
oanacity  of  the  law  courts ;  and  he  seems  to  have  used  this  kind 
of  relief  with  great  freedom,  unrestrained  by  the  rules  which  have 
since  been  settled  with  respect  to  the  injunction.  As  the  business 
of  the  court  increased  and  became  regular  and  constant,  the  prac- 
tice was  established  in  the  reign  of  Richard  II.  of  addressing  the 
suitor's  bills  or  petitions  directly  to  the  Chancellor,  and  not  to 
the  King  or  his  council.  During  the  same  reign  a  statute  was 
passed  by  Parliament  for  the  purpose  of  regulating  the  business 
of  the  court  and  restraining  its  action,  which  enacted  that  when 
persons  were  compelled  to  appear  before  the  council  or  the  chan- 
cery on  suggestions  found  to  be  untrue,  the  Chancellor  should  have 
power  to  award  damages  against  the  complainant,  in  his  discre- 
tion.^ This  statute  was  a  solemn  recognition  by  Parliament  of  the 
court  as  a  distinct  and  permanent  tribunal,  having  a  separate  juris- 
diction and  its  own  modes  of  procedure  and  of  granting  relief; 
and  the  enactment  was  an  important  event  in  the  legal  history  of 
the  chancery. 

§  38.  In  the  reign  of  Richard  II.,  Uses  tirst  came  distinctly  into 
notice  and  were  brought  under  judicial  cognizance.  This  species 
of  interest,  in  land  was  utterly  unknown  to  the  common  law,  and 
foreign  to  the  feudal  notions:  it  was  therefore  ignored  by  the  law 
courts,  and  fell  under  the  exclusive  control  of  chancery.  As  uses 
were  derived,  witli   much  modification,   from  the   Roman   law.   the 

^  The  instances  of  the  kind  mentioned  in  the  text  are  probably  all  referable  to 
the  notion,  which  seems  to  have  been  entertained  by  the  early  chancellors, 
that  one  important  head  of  their  jurisdiction,  founded  upon  the  principle  of 
conscience,  was  the  protection  of  the  poor,  weak,  helpless,  and  oppressed  against 
the  rich  and  powerful.  Tliis  early  notion  has  left  some  traces  in  the  subsequent, 
equity  jurisprudence. 

^  17  Rich.  IT.,  chap.  6. 


ID  oiacix  OL-  KfiiLTV  JLi;i!5i>iuui;.\ci:.  §  oD 

doctrines  of  that  jnrisprudenee  were  naturally  resorted  to  in  decid- 
ing controversies  respecting  them,  and  in  settling'  the  rules  for 
their  government.  The  action  of  the  law  judges  in  banishing  the 
Roman  law  from  their  courts,  which  has  already  been  described/ 
also  operated  very  powerfully  to  throw  the  consideration  of  these 
matters  into  the  chancery,  and  greatly  augmented  and  strength- 
ened its  authority.  No  one  subject  has  contributed  so  much  to 
enlarge  and  perfect  the  jurisdiction  of  the  Court  of  Chancery  as 
the  uses  thus  surrendered  to  its  exclusive  cognizance.  The  princi- 
ples which  underlie  them  and  the  trusts  which  succeeded  them 
have  been  extended  to  all  departments  of  equity,  and  have  been 
more  efficient  than  any  other  cause  in  building  up  an  harmonious 
system  of  equitable  jurisprudence  in  conformity  with  right  and 
justice.  These  tiexible  principles  have  been  applied  to  almost  every 
relation  of  life  alfecting  property  rights,  and  have  been  molded 
so  as  to  meet  the  exigencies  of  the  infinite  variety  of  circumstances 
W'hich  arise  from  modern  civilization.  They  have  even  reacted 
upon  the  common  law,  and  have  been  recognized  by  the  law  judges 
in  their  settlement  of  the  rules  which  govern  the  rights  and  obli- 
gations growing  out  of  contract. 

§  .'39.  In  the  reigns  of  Henry  IV.  and  Henry  V.,  the  Commons, 
from  time  to  time,  complained  that  the  Court  of  Chancery  was 
usurping  powers  and  invading  the  domain  of  the  common-law 
judges.  It  is  a  very  remarkable  fact,  however,  that  this  opposi- 
tion never  went  to  the  extent  of  denouncing  the  equity  jurisdic- 
tion as  wholly  unnecessary,  it  was  always  conceded  that  the  law 
courts  could  furnish  no  adequate  remedy  for  certain  classes  of 
wrongs,  and  that  a  separate  tribunal  was  therefore  necessary.  As 
the  result  of  these  complaints,  statutes  were  passed  which  forbade 
the  Chancellor  from  interfering  in  a  few  specified  instances  of 
legal  cognizance,  but  did  not  abridge  his  general  jurisdiction.  In 
the  reign  of  Edward  IV.  the  Court  of  Chancery  was  in  full  opera- 
tion: the  mode  of  procedure  by  bill  filed  by  the  complainant,  and 
a  subpoena  issued  thereon  to  the  defendant,  was  settled ;  and  the 
principles  of  its  equitable  jurisdiction  were  ascertained  and  estab- 
lished upon  the  basis  and  with  the  limitations  which  have  continued 
to  the  present  time.  No  more  opposition  was  made  to  the  court 
by  the  Commons,  although  the  law  judges  from  time  to  time,  until 
as  late  as  the  reign  of  James  I.,  still  denied  the  power  of  the 
Chancellor  to  interfere  with  matters  pending  before  their  own 
courts,  and  especially  disputed  his  authority  to  restrain  the  pro- 
ceedings in  an  action  at  law.  l)y  means  of  his  injunction.  This 
<?ontroversy  between  the  law  and  the  equity  courts,  with  respect 

*  See  ante,  §  20. 


§  40  EQUITY   JURISPRUDENCE.  20 

to  the  line  which  separates  their  jurisdictions,  has  in  fact  never 
been  completely  settled ;  and  perhaps  it  must  necessarily  continue 
until  the  two  jurisdictions  are  blended  into  one,  or  at  least  are 
administered  by  the  same  judges  in  the  .same  proceeding.^ 

§  40.  Abolition  of  the  Court  in  England  and  in  Many  American 
States. — The  court  of  equity,  having  existed  as  a  separate  tribunal 
for  so  many  centuries,  has  at  length  disappeared  in  Great  Britain 
and  in  most  of  the  American  states,  and  the  reforming  tendency 
of  the  present  age  is  strongly  towards  an  obliteration  of  the  lines 
which  have  hitherto  divided  the  two  jurisdictions.  By  the  recent 
legislation  of  England  and  of  many  of  the  states  in  this  country, 
the  separate  tribunals  of  law  and  of  equity  have  been  abolished; 
the  two  jurisdictions  have  been  so  far  combined  that  both  are 
administered  by  the  same  court  and  judge;  legal  and  equitable 
rights  are  enforced  and  legal  and  equitable  remedies  are  granted 
in  one  and  the  same  action ;  and  the  distinctions  which  hitherto 
existed  between  the  two  modes  of  procedure  are  as  far  as  possible 
abrogated,  one  kind  of  action  being  established  for  all  judicial 
controversies.^ 

'  W'lioivver  the  distinctions  between  suits  in  equity  and  aetions  at  law  have 
been  abolished,  and  equitable  and  lej^al  rights  may  be  enforced,  and  equitable  and 
legal  remedies  may  be  obtained,  in  the  same  proceeding,  we  might  suppose  this 
contest  would  necessarily  have  disappeared,  and  it  necessarily  would  have  dis- 
appeared if  the  courts  had  carried  out  the  plain  intent  of  the  legislation;  un- 
lortunately,  however,  in  some  of  the  states  where  this  legislation  has  been  adop- 
ted, the  distinction  between  the  legal  and  equitable  jurisdictions  is  kept  up  as 
sharply  as  though  there  were  the  separate  tribunals,  and  the  different  systems 
of    procedure. 

^  The  English  .ludicature  Act  of  1873.  already  quoted,  after  uniting  all  the 
higher  tribimals  into  one  Supreme  Court  of  .Tu<licature,  enacts  that  "in  every 
civil  cause  or  matter,  law  and  equity  shall  be  concurrently  administered"  by  this 
court  according  to  certain  general  ndes:  and  that  generally  in  all  matters 
not  particularly  mentioned  in  other  provisions  of  the  act,  in  which  there  is  any 
contlict  or  variance  between  the  rules  of  equity  and  the  iiiles  of  the  common  law, 
with  reference  to  the  same  matter,  the  rules  of  equity  shall  prevail:  3G  &  .37 
Vict.,  cliap.  (!H.  SS  24,  25.  This  great  reform,  \\hich  was  inaugurated  by  Xew  York 
in  1848,  has  been  adopted  by  the  states  of  Ohio,  Kentucky,  Indiana,  Wisconsin, 
Io\\a,  Minnesota,  ^Missouri,  Kansas,  Nebraska,  Nevada,  California,  Oregon,  North 
Carolina.  South  Carolina.  Arkansas,  Connecticut,  Colorado,  Washington,  Mon- 
tana, Idaho,  Wyoniing,  Utah,  North  Dakota,  South  Dakota.  Oklahoma,  and  by 
the  territories  of  Arizona  and  New  Mexico.  The  form  of  legislation  Avhich  has 
generally  l)een  adopted  is  substantially  the  following:  "The  distinction  between 
actions  of  law  and  suits  in  equity,  and  the  forms  of  all  such  actions  and  suits 
heretofore  existing,  are  abolished:  and  there  shall  be  in  this  state  hereafter 
but  one  fonw  of  action  for  the  enforcement  or  protection  of  private  rights  ant? 
the  redress  of  private  wrongs,  which  shall  be  denominated  a  civil  action."  1ft 
two  or  three  of  the  states  a  slight  external  distinction  between  legal  and  equitable 
action's  is  still  preserved. 


21  OUKilX   OF   K(iL'lTY   J  rUlSl'UrUKNCE.  §42 

§  41.  Equity  Jurisdiction  in  Other  American  States. — In  tlio  na- 
tional courts  of  the  United  States,  and  in  most  of  the  states  which 
have  not  adopted  the  reformed  procedure,  the  two  departments 
of  law  and  equity  are  still  maintained  distinct  in  their  rules,  in 
their  procedure,  and  in  their  remedies;  but  the  jurisdiction  to  ad- 
minister both  systems  is  possessed  and  exercised  by  the  same  tri- 
bunal, which  in  one  case  acts  as  a  court  of  law,  and  in  the  other 
as  a  court  of  equity.  The  organization  of  the  judiciary  differs  widely 
in  the  states  of  this  class,  and  no  attempt  need  be  made  to  describe 
it.  The  procedure  at  law  is  based,  althouuh  in  most  instances  with 
extensive  modifications,  upon  the  old  common-law  method,  and  re- 
tains in  whole  or  in  part  the  ancient  forms  of  action.  The  equity 
procedure  is  the  same  in  its  essential  principles  Avith  that  whicJi 
lono-  prevailed  in  the  Engiish  Court  of  Chancery,  but  is  much  sim- 
plified in  its  details  and  rules. ^ 

§  42.  In  a  very  few  of  the  states  the  policy  of  separation  is  still 
maintained.  Law  and  et|uity  are  not  only  distinct  departments, 
but  they  are  administered  by  different  tribunals,  substantially  ac- 
cording to  the  system,  both  in  respect  to  jurisdiction  and  procedure, 
which  existed  in  England  prior  to  the  recent  legislation.  There 
is  a  court  of  general  original  jurisdiction  at  law,  and  another  court 
of  equity,  consisting  of  one  or  more  chancellors,  and  the  two  are 
entirely  distinct  in  the  persons  of  the  judges,  and  in  the  judicial 
functions  which  they  possess.  Even  in  these  states,  however,  there 
is  generally  but  one  appellate  tribunal  of  last  resort,  which  reviews 
on  error  the  judgments  of  the  law  courts,  and  on  appeal  the  decrees 
of  the  Chancellor.^ 

*  'Diis  mode  of  judipial  organization  and  of  maintainintr  tlio  two  jurisdictions 
with  one  tril)iinal  lias  been  adopted  by  the  United  States  for  the  national  ju- 
diciary, inchiding  that  of  the  District  of  Cohimbia,  and  by  the  following  States: 
Florida.  Georgia.  Illinois,  ^Maine,  Maryland,  Massachusettes.  Michigan,  New 
Hampshire,  Pennsylvania,  Rhode  Island.  Texas,  Vermont,  Virginia,  West  Virginia. 

^  This  system  exists  in  Alabama,  Delaware,  Mississippi,  New  Jersey,  Ten- 
nessee. 

t 


§44  EQUITY    .7  1  !;l<l'i;rDEXCE.  2'3 


SECTION    II. 
THE    NATURE    OF    EQUITY. 

ANALYSIS. 

§  43.  Importance  of  a  correct  notion  of  equity. 
S§   44.  45.  Various  meanings  given  to  the  \\ord. 
§§  46,  47.  True  meaning  as  a  department  of  our  jurisprudence. 
S§  48-54.  Theories  of  the  earlj'   chancellors  concerning  equity   as  both   supplj'— 

ing  and  correcting  the  common  law. 
SS   55-58.   Sources   from  which  the  early  chancellors  took  their  doctrines;    their 

notions  of  "conscience"  as  a  ground  of  their  authority. 
§J$   59-61.  Equity  finally  established  upon  a   basis  of  settled   principles. 

§   02.  How  the  equitable  jurisdiction   is  determined  at  the  present   day. 
§S   03-67.  Recapitulation:     Nature  of  equity   stated   in   four  propositionai. 

§  43.     Importance   of   a    Correct   Notion   of   Equity. — 

This  inquiry  is  not  purely  thecn'etieal ;  it  is,  on  the  contrary,  in 
the  highest  degree  practical.  .  .  .  Since  the  combination 
of  legal  and  equitable  remedies  in  one  judicial  proceeding 
which  has  been  effected  in  many  of  the  states,  the  notion  seems 
to  have  been  revived,  somewhat  vague  and  undefined  perhaps,  but 
still  widely  diffused  among  the  legal  profession,  that  equity  is  noth- 
ing more  or  less  than  the  power  ])ossessed  by  judges — and  even  the 
duty  resting  upon  them — to  decide  every  case  according  to  a  high 
standard  of  morality  and  abstract  right;  that  is,  the  poAver  and 
duty  of  the  judge  to  do  justice  to  the  individual  parties  in  each 
case.  This  conception  of  equity  was  known  to  the  Roman  jurists^ 
and  was  described  by  the  phra.se,  Arbitrium  boni  viri.  which  may 
be  freely  translated  as  the  decision  upon  the  facts  and  circumstances 
of  a  case  which  would  be  made  by  a  man  of  intelligence  and  of 
high  moral  principle ;  and  it  was  undoubtedly  the  theory  in  respect 
to  their  own  functions,  commonly  adopted  and  acted  upon  by  the 
ecclesia.stical  chancellors  during  the  earliest  periods  of  the  English 
Court  ol  Chancery.  It  needs  no  argument  to  show  that  if  this 
notion  should  become  universally  accepted  as  the  true  definition 
of  equity,  every  decision  would  be  a  virtual  arbitration,  and  all 
certainty  in  legal  rules  and  security  of  legal  rights  would  be  lost. 
§44.  Various  Meanings  Given  to  the  Word. —  .  .  .  The  original 
or  root  idea  of  the  word,  as  first  used  by  the  Roman  jurists,  iinir'r- 
saliti/,  and  thence  impartiality,  has  already  been  explained.  From 
this  fundamental  notion,  equity  has  come  to  be  employed  with 
various  special  significations.  It  ha.s  been  applied  in  the  inter- 
pretation of  statutes,  when  a  legislative  enactment  is  said  to  be 
interpreted  equitably;  or,  as  the  expression  often  is,  according  to 


23  THE    ^•ATUHK    OF    Htil  ITY.  §  4() 

the  equity  of  the  statute.  This  takes  place  when  the  provisions  of 
a  statute,  being  perfectly  clear,  do  not  in  terms  embrace  a  ease 
which,  in  the  opinion  of  the  judge,  would  have  been  embraced  if 
the  legislator  had  carried  out  his  general  design.     .     .     . 

§  45.  Another  signification  sometimes  given  to  equity  is  that  of 
judicial  impartiality;  the  administration  of  the  law  according  to 
its  true  spirit  and  import,  uninfluenced  by  any  extrinsic  motives 
or  circumstances;  the  application  of  the  law  to  particular  cases, 
in  conformity  with  the  special  intention  or  the  general  design  of 
the  legislator.  A  third  meaning  makes  equity  .synonymous  with 
natural  law  as  that  term  is  used  by  modern  w^riters,  or  morality; 
so  that  it  practically  becomes  the  moral  standard  to  which  all  law 
should  conform.  It  is  in  this  sense  that  the  epithet  "equitable" 
is  constantly  used,  even  at  the  present  day,  by  judges  and  text- 
writers,  in  order  to  describe  certain  doctrines  and  rules  which,  it 
is  supposed,  will  tend  to  promote  justice  and  right  in  the  relations 
of  mankind,  or  between  the  litigant  parties  in  a  particular  case. 
The  only  other  signification  which  I  shall  mention  does  not  greatly 
differ  from  the  one  last  given.  In  that  use  of  the  term,  equity  is 
the  unchangeable  system  of  moral  principles  to  which  the  la"w  does 
or  should  conform :  but  in  this  use  it  rather  describes  the  power 
belonging  to  the  judge — a  power  which  must,  of  course,  be  exer- 
cised according  to  his  own  standard  of  right — to  decide  the  cases 
before  him  in  accordance  with  those  principles  of  morality,  and 
so  as  to  promote  justice  between  suitors,  even  though  in  thus  de- 
ciding some  rule  of  positive  law  should  be  violated  or  at  least  dis- 
regarded. This  conception  of  equity  regards  it.  not  as  a  system 
of  juridical  principles  and  rules  based  upon  morality,  right,  and 
justice,  but  rather  as  a  special  function  or  authority  of  the  courts 
to  dispense  with  fixed  legal  rules,  to  limit  their  generality,  or  to 
suplement  their  defects  in  particular  cases,  not  in  obedience  to 
any  higher  and  more  comprehensive  doctrines  of  the  same  positive 
national  jurisprudence,  but  in  obedience  to  the  dictates  of  natural 
right,  or  morality,  or  conscience.^ 

§46.  True  Meaning  as  a  Department  of  our  Jurisprudence. — 
.  .  .  We  are  met  at  the  very  outset  by  numercuis  definitions 
and  descriptions  taken  from  old  Avriters  and  judges  of  great  ability 
and  high  authorit.y,  many  of  which  are  entirely  incorrect,  and  mis- 

'  This  theorj'  Avas  known  to  the  Roman  judicial  writers;  it  was  the  notion  con- 
stantly maintained  by  Cicero,  wlio  says:  "Aequitas  est  laximentum  juris,"  and 
traces  of  it  are  found  throughout  the  Dijjest.  It  was  universally  adopted  by  the 
clerical  chancellors  in  the  earliest  stapes  of  the  chancery  jurisdiction;  and  the 
Knjjiish  equity  commenced,  and  for  a  considerable  period  contimu'd  its  ofrowth 
IS  a  direct  result  of  this  conception:  See  2  .\ustin  on  Jurisprudence,  pp.  272- 
280. 


§  48  EQUITY    JUUISPKUDENCE.  24: 

leading,  so  far  at  least  as  they  apply  to  the  system  which  now 
exists,  and  has  existed  for  several  generations.  These  detinitions 
attribute  to  equity  an  unbounded  discretion,  and  a  power  over  the 
law  unrestrained  by  any  rule  but  the  conscience  of  the  Chancellor, 

wholly  incompatible  with  any  certainty  or  security  of  private  right. 

1 

§  47.  It  is  very  certain  that  no  court  of  chancery  jurisdiction 
Avould  at  the  present  day  consciously  and  intentionally  attempt  to 
correct  the  rigor  of  the  law  or  to  supply  its  defects,  by  deciding 
contrary  to  its  settled  rules,  in  any  manner,  to  any  extent,  or  under 
any  circumstances  beyond  the  already  settled  principles  of  equity 
jurisprudence.^  Those  principles  and  doctrines  may  unquestionably 
be  extended  to  new  facts  and  circumstances  as  they  arise,  Avhich 
are  analogous  to  facts  and  circumstances  that  have  already  been 
the  subject-matter  of  judicial  decision,  but  this  process  of  growth 
is  also  carried  on  in  exactly  the  same  manner  and  to  the  same  ex- 
tent b}^  the  courts  of  law.  Nor  would  a  chancellor  at  the  present 
day  assume  to  decide  the  facts  of  a  controversy  according  to  his 
own  standard  of  right  and  justice,  independently  of  fixed  rules, — he 
would  not  attempt  to  exercise  the  arbitrium  boni  viri ;  on  the  con- 
trary, he  is  governed  in  his  judicial  functions  by  doctrines  and 
rules  embodied  in  precedents,  and  does  not  in  this  respect  possess 
any  greater  liberty  than  the  law  judges. 

§  48.  Theories  of  the  Early  Chancellors  Concerning  Equity. — It 
is  nevertheless  true  that  there  was  much  in  the  proceedings  of  the 
early  clerical  and  some  of  the  lay  chancellors  which  furnished  a 
ground  for  the  theories  given  in  the  foregoing  note.  In  the  com- 
mencement of  the  jurisdiction,  and  down  to  a  time  when  the 
principles  of  equity  as  they  now  exist  had  become  established,  every 
decision  made  by  chancery,  every  equitable  doctrine  which  it  de- 
clared, every  equitable  rule  which  it  announced,  was  of  necessity 
an  innovation  to  a  greater  or  less  extent  upon  the  then  existing 
common  law,  sometimes  supplying  defects  both  with  respect  to 
primary  rights  and  to  remedies  which  the  law  did  not  recognize, 
and  sometimes  invading,  disregarding,  and  overruling  the  law  by 
enforcing  rights  or  conferring  remedies  with  respect  to  which  the 

*  Quoting  Doctor  and  Student  Dial.  1.  chap.  16;  fJrounds  and  Rudiments  pp. 
5,  6;  I'lneh's  J.aw,  p.  20;  Kunomus.  Dial.  3,  §  RO ;  Kanie's  Eq.,  Introd.,  pp. 
12,  15;  Fonblanque  on  Equity,  b.  1,  chap.  1,  §  3.  The  same  large  view  of  equit\- 
has  sometimes  been  taken  by  the  earlier  judges,  but  not  to  any  considerable  ex- 
tent since  the  Reformation.  The  following  example  will  suffice:  Dudley  v. 
Dudley,  Free.  Ch.  241,  244,  Sir  John  Trevor,  M.  R. 

1  The  text  is  quoted  in  Harper  v.  Clayton,  84  Md.  350,  35  Atl.  1083,  35  L.  R.  A. 
211,  57  Am.  St.  Rep.  407:  Henderson  v.  Hall,  134  Ala.  455,  32  South.  840;  and 
cited  in  Sell  v.  West,  125  Mo.  621,  46  Am.  St.  Rep.  508.  28  S.  W.  969. 


25  THE  NATURE  OF  EQUITY.  §  49 

law  was  not  silent,  but  which  it  actually  denied  and  refused.  The 
very  j>rowth  of  eciuity,  as  long-  as  it  was  in  its  formative  period, 
was  from  its  essential  nature  an  antagonism  to  the  common  law, 
either  by  way  of  adding  doctrines  and  rules  which  the  law  simply 
did  not  contain,  or  by  way  of  creating  doctrines  and  rules  con- 
tradictory to  those  which  the  law  had  settled  and  would  have  ap- 
plied to  the  same  facts  and  circumstances.  It  would  be  a  down- 
right absurdity,  a  flat  contradiction  to  the  plainest  teachings  of 
history,  to  deny  that  the  process  of  building  up  the  system  of  equity 
involved  and  required  on  the  part  of  the  chancellors  an  evasion, 
disregard,  and  even  violation  of  many  established  rules  of  the 
common  law ;  in  no  other  way  could  the  system  of  equity  jurispru- 
dence have  been  commenced  and  continued  so  as  to  arrive  at  its 
present  proportions.^ 

§  49.  Nor  can  it  be  denied  that  the  early  clerical  and  even  lay 
chancellors,  in  their  first  processes  of  innovating  upon  the  law,  and 
laying  the  foundations  of  equity,  were  constantly  appealing  to  and 
governed  by  the  eternal  principles  of  absolute  right,  of  a  lofty 
Christian  morality;  that  in  these  principles  they  sought  and  found 
the  materials  for  their  decisions;  that  they  w;ere  ever  guided  in 
their  Avork  by  Conscience,  not  by  what  has  since  been  aptly  termed 
the  civil  or  judicial  conscience  of  the  court,  but  by  their  own  indi- 
vidual consciences,  by  their  moral  sense  apprehending  what  is 
right  and  wrong,  by  their  own  conceptions  of  bona  fides.  The 
very  ground  of  the  delegated  authority  required  them  to  do  so, 
and  the  function  which  they  possessed  and  exercised  Avas  literally 
the  arbitrium  boni  viri.  In  this  manner  the  first  precedents  were 
made,  and  undoubtedly  for  a  considerable  space  of  tiine  the  de- 
cisions in  chancery  varied  and  fluctuated  according  to  the  personal 
capacity  and  high  sense  of  right  and  justice  possessed  by  individual 
chancellors.  In  the  lapse  of  time,  however,  the  precedents  had 
multiplied,  and  from  the  universal  conservative  tendency  of  courts 
to  be  controlled  by  what  has  been  already  decided,  a  system  of 
doctrines  had  developed  and  assumed  a  comprehensive  shape;  and 
finally,  when  it  had  attained  a  reasonable  completeness  with  respect 
to  fundamental  principles  and  general  rules,  this  accumulation  be- 
came the  storehouse  whence  the  chancellors  obtained  the  material 
for  their  decisions,  and  both  guided  and  restrained  their  judicial 
action.  When  this  time  arrived,  all  assumption  that  the  Chancellor 
Avas  to  be  governed  by  his  own  standard  and  conception  of  nat- 
ural justice  disappeared   from  the  court  of  e(|uity,  and   individual 

'The  text  is  quoted  in  Roberson  v.  Rochester  Fohlin.c;  Box-  Co.,  171  N.  Y.  .'5.38, 
.')46,  04  JN.  E  142,  89  Am.  St.  Rep.  828,  59  L.  R.  A.  478,  1  Scott  178,  bj'  Parker, 
C.  J. 


§  T),']  KQi'iTY  jri;isi>i;Li)i:.\CE.  26 

conscience  was  no  lonjier  the  motive  power  in  that  tribunal.  The 
accuracy  of  this  general  account  will  appear  from  a  brief  review 
of  what  the  early  chancellors  actually  did  during-  the  formative 
period  of  their  jurisdiction,  and  of  the  principles  which  they 
adopted  in  the  prosecution  of  their  reformatory  work. 

§  50.  In  the  original  delegation  of  general  authority  by  the 
Crown  to  the  Chancellor,  over  matters  falling  under  the  King's 
judicial  prerogative  of  grace,  such  authority  was  to  be  exercised 
according-  to  Conscience,  Equity,  Good  Faith,  and  Honesty.  It  was 
undoubtedly  a  maxim,  even  in  the  earliest  times,  that  the  equitable 
jurisdiction  of  chancery  only  extended  to  such  matters  as  were 
not  rcmcdiahh  hy  tlie  common  law.  At  the  same  time  great  latitude 
was  used  in  determining  what  matters  were  not  thus  remediable. 
The  chancelloi's  therefore  exercised  a  jurisdiction  which  was  stip- 
pJenientari/  to  that  of  the  law  courts,  and  to  this  there  was  never 
any  real  opposition.  At  the  same  time  they  exercised  a  jurisdiction 
Avhich  was  corrective  of  the  law%  and  this  was  undoubtedly  the  most 
important  part  of  their  functions.  It  is  absolutely  certain  from  all 
tlie  existing  recoi-ds.  and  from  the  result  itself  of  their  work,  that 
they  did  not  refrain  from  deciding-  an,y  particular  case,  according: 
to  their  views  of  e(iuity  and  good  conscience,  merely  because  the 
doctrine  which  they  followed  or  established  in  making  the  decision 
was  inconsistent  with  the  rule  of  law  applicable  to  the  same  facts, 
nor  because  the  law  had  deliberately  and  intentionally  refused  to 
acknowledge  the  existence  of  a  primary  right,  or  to  give  a  remedy 
under  those  facts  and  circumstances.^ 

§  53.  While  the  early  chancellors  did  much,  they  stopped  very 
far  short  of  consummating  the  work  of  reform  by  extending  it  to 
the  entire'  body  of  the  common  law.  They  left  untouched,  in  full 
force  and  operation,  a  great  number  of  legal  rules  which  were 
certainly  as  harsh,  unjust,  and  unconscientious  as  any  of  those 
which   they   did    attack;    and   their   successors   upon    the   chancery 

^  Tlip  author  licre  gives,  as  instances  of  remedies  granted  ])y  the  early  chan— 
oeUors,  where  any  remedy  was  refused  by  positive  rules  of  the  conunon  law: 
tlie  doctrine  that  one  executor  or  joint  tenant  might  siu^  his  co-exeeutor  or  co- 
tenant  in  the  Court  of  Chancery  in  res|)ect  to  their  joint  interests,  although 
forbidden  to  do  so  by  the  law;  relief  on  lost  bf)nds,  where  profcrt  was  impossible 
(see  post.  §§  8.31.  83-2)  :  defense  of  payment,  where  the  debtor  njton  a  sealed  in- 
strument had  neglected  to  take  a  release  or  surrender  of  the  instrument  (see 
post.  §  383)  ;  relief  from  forfeitures  (see  post,  §S  440-458)  :  injunction  against 
enforcement  of  judgments  recovered  at  law'   (see  post,  §§  13fiO-13().5) . 

As  instances  of  relief  more  efficient  than  the  legal  remedies  granted  under 
the  same  circumstances:  specific  iierformnncf  of  contracts;  tlie  whole  doctrine 
concerning  uses  and  trusts,  and  the  se-^i.^irate  estate  of  married  women.  See 
post.  cha])ters  on  these  su1)j;cts. 


27  TlIK    NATriJK    OF    EQUITY.  §  5-1.. 

bench  have  never  assumed  to  complete  what  they  left  unfinished. 
That  task  has  since  been  accomplished,  if  at  all,  either  by  the  le.u'- 
islature,  or  by  the  common-law  courts  themselves.  Amon.u'  these 
leii'al  rules  with  which  ecjuity  did  not  interfere,  the  followinu'  may 
he  mentioned  as  illustrations:  The  doctrine  by  which  the  lands 
of  a  debtor  were  generally  exempted  from  all  liability  for  his 
simple  contract  debts  ;^  the  entire  doctrine  of  collateral  warranty, 
which  was  confessedly  most  unjust  and  harsh  in  its  operation,  and 
resting  wholly  upon  that  kind  of  verbal  reasoning  which  really 
had  no  meaning;-  and  in  fact,  most  of  the  particular  rules  concern- 
ing real  estate,  Avhich  had  been  logically  derived  by  the  courts  of 
law  from  the  feudal  institutions  and  customs.  There  might,  per- 
haps, have  been  a  sufficient  reason  for  leaving  this  latter  mass  of 
rules,  as  svrh,  untouched.  The  introduction  of  uses,  and  after- 
Avards  of  trusts,  and  the  invention  of  the  married  woman's  sepa- 
rate estate,  withdrew  the  greater  part  of  the  land,  so  far  as  its 
actual  enjoyment  and  control  were  concerned,  from  the  operation 
of  the  common-law  dogmas,  and  placed  it  under  the  domain  of 
equity:  and  as  the  Court  of  Chancery  had  an  exclusive  jurisdiction 
over  these  new  species  of  estates,  and  treated  them  as  the  true 
ownerships,  and  in  dealing  with  them  disregarded  the  most  ob- 
jectionable of  the  feudal  incidents,  the  chancellors  probably  thought 
that  these  rules  of  the  common  law  had  been  practically  abrogated, 
or  at  least  evaded  en  masse,  and  that  there  was  therefore  no  neces- 
sity for  any  further  attack  upon  them  in  detail. 

§  54.  Sir  AVilliam  Blackstone,  citing  these  and  some  other  in- 
stances in  which  the  Court  of  Chancery  refrained  from  interfering 
with  legal  doctrines,  and  using  them  as  the  basis  of  his  argument, 
goes  to  the  extent  of  denying  that  equity  has  or  ever  has  had  any 
power  to  correct  the  common  law  or  to  abate  its  rigor. ^  This  is 
one  example  among  many  of  Blackstone 's  utter  inability  to  com- 
prehend the  real  spirit  and  workings  of  the  English  law.  That 
equity  did  to  a  large  extent  interfere  with  and  prevent  the  prac- 
tical operation  of  legal  rules,  and  did  thus  furnish  to  suitors  a  cor- 
rective of  the  harshness  and  injustice  of  the  common  law,  history 
and  the  very  existing  system  incontestably  show;  and  that  the 
chancellors,   from   motives   of  policy   or   otherwise,   refrained    fi-om 

^^  Black.  Com.,  p.  4.30. 

'  T.onl  C'<n\i)oi-  said  of  this  (looli-iiif.  in  Earl  of  Balli  v.  Slicrwiii.  10  ^Tod.  4: 
"A  collateral  warranty  was  certainly  one  of  llie  harshest  and  Tnost  cruel  parts 
of  the  common  law.  becaiise  there  was  no  sncli  pretended  recompense  (as  in 
the  case  of  a  lineal  warranty)  ;  yet  I  do  not  find  that  the  conrt  (of  chancery) 
ever   gave    satisfaction." 

'.3    I'.lack.  Com.,  p.  4.30. 


§  57  EQUITY   JURISPRUDENCE.  2S 

exercising  their  reformatory  function  in  certain  instances,  is  not, 
in  the  face  of  the  historical  facts,  any  argument  against  the  ex- 
istence of  the  power.  And  even  in  the  present  condition  of  equity 
as  an  established  department  of  the  national  jurisprudence,  when- 
ever a  court  determines  the  rights  of  parties  by  enforcing  an  equi- 
table doctrine  which  differs  from  and  perhaps  conflicts  with  the 
legal  rule  applicable  to  the  same  facts,  such  court  does  still,  in 
very  truth,  exercise  a  corrective  function,  and  wield  an  authority 
by  which  it  relieves  the  rigor  and  often  the  injustice  of  the  common 
law.  It  is  undoubtedly  true  that  a  court  of  ecjuity  no  longer  in- 
augurates new  attacks  upon  legal  doctrines,  and  confines  itself  to 
the  application  of  principles  already  settled;  but  it  is  none  the  less 
true  that  a  large  part  of  the  equity  wdiieh  is  daily  administered 
consists  in  doctrines  which  modify  and  contradict  as  well  as  sup- 
plement the  rules  of  the  law.- 

§  55.  Sources  From  Which  the  Early  Chancellors  Took  Their 
Doctrines. —  .  .  .  They  were  directed  in  their  original  delegation 
of  authority,  and  they  assumed,  in  compliance  with  the  direction, 
to  proceed  according  to  Equity  and  Conscience.     .     .     . 

§57.  The  question  is  naturally  suggested,  whether  this  "con- 
science" was  interpreted  as  the  personal  conscience  of  the  indi- 
vidual chancellor,  or  whether  it  w^as  a  kind  of  juduial  conscience, 
limited  by  and  acting  according  to  definite  rules,  and  constituting 
a  fixed  and  common  standard  of  right  recognized  and  followed  by 
all  the  equity  judges.  Beyond  a  doubt,  during  the  infancy  of  the 
jurisdiction,  the  former  of  these  conceptions  was  the  prevailing 
one,  and  each  Chancellor  was  governed  in  his  judicial  work  by  his 
own  notions  of  right,  good  faith,  and  obligation,  by  his  own  inter- 
pretation of  the  Divine  code  of  morality.  Even  during  the  reigns 
of  Henry  VIII.  and  of  Elizabeth,  some  of  the  chancellors  seem  to 
have  taken  a  view  of  their  authority  which  freed  them  from  the 
restraints  of  precedent  and  even  of  principle,  and  enabled  them  to 
decide  according  to  their  private  standard  of  right.  It  was  this 
mistaken  theory,  so  satisfying  to  an  ambitious  and  self-reliant  judge, 
but  so  dangerous  to  the  equable  and  certain  administration  of  jus- 
tice, which  provoked  the  sarcastic  criticism  of  Selden  so  often 
quoted,  and  so  often  applied,  in  complete  ignorance  either  of  t.he 
subject    or    the    occasion,    to    the    equity    jurisdiction    in    general.^ 

^  See  dictum  of  Sir  George  Jessel,  M.  R.,  in  Johnson  v.  Crook,  L.  R.  12  Ch. 
Div.  039,  649. 

^  Table  Talk,  tit.  Equity:  "Equity  is  a  roguish  thing.  For  law  we  have  a 
measure,  and  know  what  we  trust  to.  Equity  is  acoording  to  the  conscience  of 
him  that  is  Chancellor;  and  as  that  is  larger  or  narrower,  so  is  equity.  'T  is 
all  one  as  if  thov  should  make  his  foot  the  standard  for  the  measure  we  call  a 


29  THE  NATUKK  OF  KQUITY.  §  59 

After  the  period  of  infancy  was  passed,  and  an  orderly  system  of 
equitable  principles,  doctrines,  and  rules  l)egan  to  be  developed 
out  of  the  increasing'  mass  of  precedents,  this  theory  of  a  personal 
conscience  was  abandoned;  and  the  "conscience"  which  is  an  ele- 
ment of  the  equitable  jurisdiction  came  to  be  regarded,  and  has 
so  continued  to  the  present  day,  as  a  metaphorical  term,  designat- 
ing the  common  standard  of  civil  right  and  expediency  combined, 
based  upon  general  principles  and  limited  by  established  doctrines, 
to  which  the  court  appeals,  and  by  which  it  tests  the  conduct  and 
rights  of  suitors, — a  juridical  and  not  a  personal  conscience.-  This 
theory  was  at  length  announced  by  Lord  Nottingham  as  the  one 
which  regulated  the  equity  jurisdiction:  "With  such  a  conscience 
as  is  only  naturalis  and  interna,  this  court  has  nothing  to  do ;  the 
conscience  by  which  I  am  to  proceed  is  merely  civilis  and  politiea, 
and  tied  to  certain  measures."^ 

§  58.  After  "conscience"  became  thus  defined  as  a  common  civil 
standard,  it  was  practically  the  same  as  "equity;"  the  distinctions 
between  them  had  disappeared,  and  both  terms  were  and  have  since 
been  used  interchangeably.  From  the  time  of  Henry  VI.,  prece- 
dents of  decisions  made  in  the  Court  of  Chancery  were  recorded 
in  the  Year-Books,  and  special  collections  of  them  were  made  in 
the  reigns  of  Elizabeth,  James  I.,  and  Charles  I.  By  the  time  of 
Charles  I.  the  number  of  precedents  had  so  accumulated,  either  in 
published  or  in  private  collections,  or  handed  down  traditionally, 
that  they  substantially  contained  the  entire  principles  of  equity, 
and  the  chancellors  yielded  almost  wholly  to  their  guidance.  In 
fact,  they  sometimes  fell  into  the  mistake  of  refusing  relief  in  a 
case  plainly  within  the  scope  of  established  principles,  because  there 
was  no  precedent  which  exactly  squared  with  the  facts  in  contro- 
versy. 

§  59,  Equity  Finally  Established  Upon  a  Basis  of  Settled  Princi- 
ples.— The  result  of  this  review  is  ver}^  clear,  and  enables  us  to  de- 
fine with  accuracy  the  general  character  of  the  English  and  Amer- 
ican equity.  After  its  growth  had  proceeded  so  far  that  its  im- 
portant principles  were  all  developed,  equity  became  a  system  of 
positive  jurisprudence,  peculiar  indeed,  and  differing  from  the  com- 
mon  law,  but  founded   upon   and  contained   in   the   mass   of  eases 

Chancellor's  foot,  ^^'hat  an  uncertain  measure  would  this  be!  One  Chancellor 
has  a  loni;  foot,  another  a  short  foot,  a  third  an  indifferent  foot.  'T  is  the  same 
thinjj  in  the  Chancellor's  conscience."  Mr.  Spence  very  truly  remarks:  "Selden, 
l)efter  than  any  man  livings,  perhaps,  knew  what  equity  really  was." 

-The  text  is  quoted  in  Eoberson  v.  Rochester  Foldinjir  Box  Co.,  171  N.  Y.  53S, 
54G.  (;4  N.  K.  442.  80  Am.  St.  Rep.  S28,  S.32,  ,50  L.  R.  A.  478,  1  Scott  178,  by 
I'arker,  C.  .1. 

^Cook  V.  Fountain,  ^  Swansl.  r)S.5.  000    (1070). 


3  60  '    EQUITY   JUKlrirKUDEXCE.  30 

already  decided.  The  Cliaiicellor  was  uu  lunger  intiueueed  by  his 
own  couscieuce,  or  governed  by  his  own  iuterpretatiou  of  the  Di- 
vine morality.  He  sought  for  the  doctrines  of  equity  as  they  had 
already  been  promulgated,  and  applied  them  to  each  case  which 
came  before  him.  No  doubt  (and  this  is  a  point  of  the  highest 
importance)  the  system  was,  and  is,  much  more  elastic  and  capable 
of  expansion  and  extension  to  new  cases  than  the  common  law. 
Its  very  central  principles,  its  foundation  upon  the  eternal  verities 
of  right  and  justice,  its  resting  upon  the  truths  of  morality  rather 
than  upon  arbitrary  customs  and  rigid  dogmas,  necessarily  gave  it 
this  character  of  flexibility,  and  permitted  its  doctrines  to  be  en- 
hirged  so  as  to  embrace  new  cases  as  they  constantly  arose.  It 
has,  therefore,  as  an  essential  part  of  its  nature,  a  capacity  of  or- 
derly and  regular  growth — a  growth  not  arbitrary,  according  to 
the  will  of  individual  judges,  but  in  the  direction  of  its  already 
settled  principles.  It  is  ever  reaching  out  and  expanding  its  doc- 
trines so  as  to  cover  new  facts  and  relations,  but  still  without  any 
break  or  change  in  the  principles  or  doctrines  themselves.  It  is 
certainly,  therefore,  a  mistaken  theory  which  is  maintained  by 
many  writers  like  Blackstone,  and  even  by  those  of  a  later  day  and 
higher  authority,  and  which  represents  the  English  and  American 
equity  as  entirely  an  artificial  system,  embodied  wholly  in  unyield- 
ing precedents,  and  incapable  of  further  development.  It  is  true 
that  there  can  be  no  more  capricious  enlargement  according  to  the 
will  of  individual  chancellors;  but  the  principles  of  right,  justice, 
and  morality,  which  were  originally  adopted,  and  have  ever  since 
remained,  as  the  central  forces  of  equity,  gave  it  a  necessary  and 
co'ntinuous  power  of  orderly  expansion,  which  cannot  be  lost  until 
these  truths  themselves  are  forgotten,  and  banished  from  the  courts 
of  chancery.^ 

§  60.     The    general    language    of   some   writers,   and   particularly 

'  "Hie  doctrine  of  the  text  was  clearly  stated  by  Lord  Eedesdale,  in  Bond  v. 
Hopkins,  1  Schoales  &  L.  413.  429:  "There  are  certain  principles  on  which 
courts  of  equity  act,  which  are  very  well  settled.  The  cases  which  occur  are  var- 
ious, but  they  are  decided  on  fixed  principles.  Courts  of  equity  have  in  this 
respect  no  more  discretionary  power  than  courts  of  common  law.  They  decide 
new  cases  as  they  arise,  by  the  principles  on  which  former  cases  have  been  de- 
cided, and  may  thns  illufttrote  or  enlarac  the  opcnifion  of  theur  prinriplcfi,  but 
the  principles  are  as  fixed  and  certain  as  Ihe  principles  on  which  the  courts  of 
common  law  proceed."  In  Gee  v.  Pritchnrd,  2  Swanst.  402,  414.  1  Keener  .'in.  1 
Scott  149,  J.,ord  Eldon  states  the  same  theory:  "The  doctrines  of  this  court  oujxht 
io  be  as  well  settled  and  made  as  uniform  nlmof<f  as  those  of  the  common  law, 
laying  doicn  fixed  principles,  hut  tal-inp  care  that  they  are  to  he  applied  accord— 
iny  to  the  circumstances  of  each,  particular  case."  The  old  case  of  Fry  v.  Porter, 
1  Mod.  :^00,  307  (22  (^ar.  11.).  1  Scott  14.').  exiiibits  the  strange  notions  con- 
cernin<^  equity  Ihen  held  by  the  common-law  jvulges. 


31  THE  NATURE  OF  EQUITY.  §  60 

of  iilackstone,  presents  au  erroueous  tlieury  as  to  the  otlice  of  prect- 
deuts  iu  equity,  and  if  followed,  would  check  and  abridge  the  beue- 
ticent  operation  of  its  jurisdiction.  The  true  function  of  precedeiits 
is  that  of  illustrating  principles ;  they  are  examples  of  the  manner 
and  extent  to  which  principles  have  been  applied;  the^^  are 
the  landmarks  by  which  the  court  determines  the  course  and  direc- 
tion in  which  principles  have  been  carried.  But  with  all  this  guid- 
ing, limiting,  and  restraining  elttcacy  of  prior  decisions,  the  Chan- 
cellor always  has  had,  and  always  must  have,  a  certain  power  and 
freedom  of  action,  not  possessed  by  the  courts  of  law,  of  adapting 
the  doctrines  which  he  administers.  -  He  can  extend  those  doctrines 
to  new  relations,  and  shape  his  remedies  to  new  circumstances,  if 
the  relations  and  circumstances  come  within  the  principles  of  equity, 
where  a  court  of  law  in  analogous  eases  would  be  powerless  to  give 
any  relief.  In  fact,  there  is  no  limit  to  the  various  forms  and  kinds 
of  specific  remedy  which  he  may  grant,  adapted  to  novel  conditions 
of  right  and  obligation,  which  are  constantly  arising  from  the  move- 
ments of  society.  AVhile  it  mn.st  be  admitted  that  the  broad  and 
fruitful  principles  of  equity  have  been  established,  and  can  not  be 
changed  by  anj^  judicial  action,  still  it  should  never  be  forgotten 
that  these  principles,  based  as  they  are  upon  a  Divine  morality,  pos- 
sess an  i-nherent  vitality  and  a  capacity  of  expansion,  so  as  ever  to 
meet  the  wants  of  a  progressive  civilization.  Lord  Hardwicke,  who 
Avas,  I  think,  the  greatest  of  the  English  chancery  judges,  and  who, 
far  more  than  Lord  Eldon,  was  penetrated  by  the  genius  of  eciuity, 
indicated  the  true  theory  in  a  letter  to  Lord  Karnes :  "Some  general 
rules  there  ought  to  be,  for  otherwise  the  great  inconvenience  of  ju.s 
vagum  et  ineertiun  will  follow.  'And  yet  the  Praetor  [Chancellor] 
must  not  be  so  absolutely  and  invariably  bound  by  them  as  the 
.iudges  are  by  the  rules  of  the  common  law.  For  if  he  were  so  bound, 
the  consequence  would  follow  that  he  must  sometimes  pronounce 
decrees'  which  would  be  materially  unjust,  since  no  rule  can  be 
equally  just  in  the  application  to  a  whole  class  of  cases  that  are  far 
fi'om  being  the  same  in  every  circumstance."^ 

^Parke's  History  of  riiancory.  pp.  501.  500.  .Tiidfre  Story  severely  criticises 
this  languatTP.  pronounces  it  very  loosely  said,  and  virtually  rep\idiates  it.  But 
Mitli  all  deference  to  Judsre  Story,  these  few  sentences,  althoufijh  undoubtedly  not 
written  in  a  scientific  form,  contain  the  central  truth  of  the  system,  the  truth 
which  must  always  be  recoffnized  and  acted  upon  in  the  administration  of  equi- 
ty. Lord  Hardwicke  does  not  deny  the  existence  nor  the  necessity  of  general  prin- 
ciples, —  no  other  Ohnncellor  was  ever  more  governed  in  his  judicial  work  Vty 
principles.  —  but  he  ^\^ul(l  guard  against  the  theory  which  locks  these  princi- 
ples up  in  the  already  existing  precedents,  and  limits  their  free  application  to 
farts,  circumstances,  and  relations  similar  to  those  which  had  been  the  subjcct- 
mafter  of  former  adjudications.     In  other  words.  Lord  Hardwicke  in  this  short 


§  62  EQUITY   JURISPRUDENCE.  3* 

§  62.  How  the  Equitable  Jurisdiction  is  Determined  at  the  Pres- 
ent Day. — Although  the  jurisdiction  of  chancery  was  originally 
based  in  great  measure  upon  the  omissions  of  the  common  law,  the 
injustice  of  many  of  its  rules,  and  its  inability,  from  its  modes  of 

passage  states  the  same  view  which  I  had  given  in  the  text.  Although  equity  is 
and  long  has  been  in  every  sense  of  the  word  a  system,  and  although  it  is  im- 
possible that  any  new  general  principles  should  be  added  to  it,  yet  the  truth 
stands,  and  always  must  stand,  that  the  final  object  of  equity  is  to  do  right  and 
justice. 

In  the  case  of  Manning  v.  Manning,  1  .Jolins.  Ch.  530,  1  tScott  147,  Chancellor 
Kent  explained  his  own  position  as  an  American  chancellor,  and  his  conception  of 
equity  as  a  wiiole:  "I  take  this  occasion  to  observe  that  I  consider  myself  bound 
by  these  principles,  which  were  known  and  established  as  law  in  the  courts  of 
equity  in  England  at  the  time  of  the  institution  of  this  court,  and  I  shall  certain- 
ly not  presume  to  strike  into  any  new  path  \\'ith  visionary  schemes  of  innovation 
and  improvement;  Via  antiqua  via  est  tuta.  .  .  .  This  court  ought  to  be  as 
much  bound  as  a  court  of  law  by  a  course  of  decisions  applicable  to  the  case, 
and  establisliing  a  rule.  As  early  as  the  time  of  Lord  Keeper  Bridgman,  it  was 
held  tliat  precedents  were  of  authority  ( 1  Mod.  307.  See  the  citation  ante,  in 
the  note  under  §  .59).  The  system  of  equity  principles  which  has  grown  up  and 
become  matured  in  Kngfand,  and  chiefly  since  Lord  Nottingham  was  appointed 
to  the  custody  of  the  great  seal,  is  a  scientific  system,  being  the  result  of  the 
reason  and  the  labors  of  learned  men  for  a  succession  of  ages.  It  contains  the 
most  enlarged  and  liberal  views  of  justice,  \\ith  a  mixture  of  positive  and  tech- 
nical rules  founded  in  public  policy,  and  indispensable  in  every  municipal  code. 
It  is  the  duty  of  this  court  to  apply  the  principles  of  this  system  to  individual 
cases  as  they  may  arise,  and  by  this  means  endeavor  to  transplant  and  incorporate 
all  tliat  is  applicable  in  that  system  into  the  body  of  our  own  judicial  annals, 
by  a  series  of  decisions  at  home."  The  ])ropositions  here  quoted  are  undoubtedly 
true,  and  yet  the  feeling  can  not  be  avoided  that  they  do  not  represent  the  entire 
truth.  The  character  of  Chancellor  Kent's  mind  was  eminently  conservative; 
and  this  conservative  tendency  has  led  him  to  suppress,  or  at  least  to  refrain 
from  expressing,  the  element  of  vitality  and  expansion  which  inheres  in  tlie 
system,  and  the  power  of  the  court  in  its  fulness  to  enlarge  the  equitable  prin- 
ciples, to  extend  them  over  new  facts  and  relations,  and  to-  render  them  fruit- 
ful in  the  constant  production  of  new  rules. 

Contrast  with  Chancellor  Kent's  remarks  the  well  known  dictum  of  .Tessel, 
M.  R.,  in  In  re  Hallett's  Estate,  13  Ch.  Div.  006,  710:  "I  intentionally  say  moil- 
em  rules,  because  it  must  not  be  forgotten  that  the  rules  of  Courts  of  Equity  are 
not,  like  the  rules  of  the  Common  Law,  supposed  to  have  been  established  fnun 
time  immemorial.  It  is  perfectly  well  known  that  they  have  been  established 
from  time  to  time — altered,  improved,  and  refined  from  time  to  time.  In  many 
cases  we  know  the  names  of  the  Chancellors  who  invented  them.  No  doubt 
they  were  invented  for  the  purpose  of  securing  the  better  administration  of 
justice,  biit  still  they  were  invented.  Take  such  things  as  these;  the  separate 
use  of  a  married  woman,  the  restraint  on  alienation,  the  modern  rule  against 
perpetuities,  and  the  rules  of  equitable  waste.  We  can  name  the  Chancellora 
who  first  invented  them,  and  state  the  date  when  they  were  first  introdiicsd  Into 
Equity  jurisprudence;  and,  therefore,  in  cases  of  this  kind,  the  older  prscedente 
in  Equity  are  of  very  little  value.  The  doctrines  are  progressive,  refined,  and 
improved;  and  if  we  want  to  know  what  the  rules  of  Equity  are  we  must  look, 
of  course,  rather  to  the  more  modern  than  the  more  ancient  cases." 


33  THE    NATURE    OF    EQUITY.  §  (jG 

procedure,  to  grant  the  variety  of  remedies  adequate  to  the  wants 
of  society  and  the  demands  of  justice,  yet  since  the  equitable  system 
has  become  fully  established,  and  its  principles  settled,  this  origin 
of  the  jurisdiction  is  no  longer  regarded  as  furnishing  the  real  cri- 
terion. The  whole  question  by  which  the  extent  of  the  equity  juris- 
diction is  pradicaUij  determined  is  no  longer,  whether  the  case  is 
omitted  by  the  law%  or  the  legal  rule  is  unjust,  or  even  the  legal 
remedy  is  inadequate, — although  the  latter  inquiry  is  still  some- 
times made  and  treated  as  though  it  were  controlling, — the  question 
is,  rather,  whether  the  circumstances  and  relations  presented  by 
the  particular  case  are  fairly  embraced  within  any  of  the  settled 
principles  and  heads  of  jurisdiction  which  are  generally  acknowl- 
edged as  constituting  the  department  of  equity.^  Two  results  there- 
fore follow:  First,  a  court  of  equity  will  not,  unless  perhaps  in 
some  very  exceptional  case,  assume  jurisdiction  over  a  controversy 
the  facts  of  which  do  not  bring  it  within  some  general  principle 
or  acknowledged  head  of  the  equitable  jurisprudence;  and  secondly, 
if  the  circumstances  do  bring  the  case  within  any  of  these  princi- 
ples or  heads,  a  jurisdiction  over  it  wall  be  maintained,  although 
the  law  may  have  been  so  altered  by  judicial  action  or  by  positive 
legislation  that  it  has  supplied  the  original  omission,  or  has  brought 
the  legal  rule  into  a  conformity  with  justice,  or  has  furnished  an 
adequate  legal  remedy.  This  latter  proposition  is  true  as  the  gen- 
eral doctrine  concerning  the  extent  of  the  equity  jurisdiction,  but 
its  operation  has  sometimes  been  prevented,  and  the  jurisdiction 
itself  denied,  in  such  cases  by  express  statute. - 

§  63.  Recapitulation :  Nature  of  Equity  Stated  in  Four  Proposi- 
tions.—    ... 

§  66.  .  .  .  The  element,  however,  of  the  English  and  American 
law,  which  has  operated  by  far  the  most  powerfully  to  retard 
its  development  in  the  direction  of  morality,  which  has  placed  an 
insuperable  barrier  to  its  perfected  growth,  which  has  rendered  it 
incomplete  as  an  embodiment  of  jural  rights,  unable  to  administer 
justice  to  the  citizen  in  all  his  relations,  and  unequal  to  the  needs 
of  society,  has  been  and  is  its  mode  of  procedure,  its  remedial  sys- 
tem as  a  whole.  This  narrow,  technical,  arbitrary  procedure,  ad- 
mitting growth  in  only  one  direction,  granting  but  few  remedies, 
and  incapable  of  enlarging  their  number  or  changing  their  nature, 
was  the  fact  w^hich  more  than  all  else  made  it  impossible  for  the 
"law"  to  borrow  all  the  jural  precepts  of  the  moral  code,  incor- 
porate them  into  its  own  rules,  and  administer  the  full  remedial 

'  See  dictum  of  Jessel,  M.  R., — one  of  the  most  clear-headed  and  able  judges  of 
this  generation, — in  the  case  of  Johnson  v.  Crook,  L.  R.  12  Ch.  Div.  639,  649. 
'See  post,  §  276  et  seq. 


§  1)7  EC^LIiV    JL  i;i>l'KrDl:2s"CE.  34 

justice  which  these  equitable  i)riiicii:)les  demanded.  The  legal 
iiTowth  was  stunted,  its  development  was  checked,  its  tendencies 
to  do  justice  in  all  the  private  relations  of  society  were  thwarted 
1)3^  its  partial  remedies  and  its  imperfect  means  of  administering 
them.  From  this  cause  the  necessity  of  a  distinct  department  of 
erjuity,  with  its  own  mode  of  procedure,  and  with  absolute  freedom 
and  elasticity  in  the  forms  of  its  remedies,  and  their  adaptation 
to  the  rights  and  duties  of  parties,  has  continued  to  the  present 
day,  and  must  continue  until  the  principles  and  rules  of  the  com- 
mon-law remedial  system  are  utterlj^  abandoned. 

§  67.  4.  As  the  expansive  tendencies  of  the  common  law  are 
thus  confined  within  certain  limits,  and  as  its  power  to  administer 
justice  and  to  grant  the  variety -of  remedies  needed  in  the  manifold 
relations  of  society  is  incomplete,  the  English  and  American  SA^stem 
of  equity  is  preserved  and  maintained  to  supply  the  want,  and  to 
render  the  national  jurisprudence  as  a  whole  adequate  to  the  social 
needs.  It  is  so  constructed  upon  comprehensive  and  fruitful  prin- 
ciples, that  it  possesses  an  inherent  capacity  of  expansion,  so  as 
to  keep  abreast  of  each  succeeding  generation  and  age.  It  consists 
of  those  doctrines  and  rules,  primarj^  and  remedial  rights  and  reme- 
dies, which  the  common  law,  by  reason  of  its  fixed  methods  and 
remedial  system,  was  either  unable  or  inadecpiate,  in  the  regular 
course  of  its  development,  to  establish,  enforce,  and  confer,  and 
which  it  therefore  either  tacitly  omitted  or  openly  rejected.  On 
account  of  the  somewhat  arbitrary  and  harsh  nature  of  the  com- 
mon lav/  in  its  primitive  stage,  these  doctrines  and  rules  of  ecjuity 
were  intentionally  and  consciously  based  upon  the  precepts  of 
morality  by  the  early  chancellors,  who  borrowed  the  jural  princi- 
ples of  the  moral  code,  and  openly  incorporated  them  into  their 
judicial  legislation.  This  origin  gave  to  the  system  which  we  call 
equity  a  distinctive  character  which  it  has  ever  since  preserved. 
Its  great  underlying  principles,  which  are  the  constant  sources, 
the  never-failing  roots,  of  its  particular  rules,  are  unquestionably 
principles  of  right,  justice,  and  morality,  so  far  as  the  same  can 
become  the  elements  of  a  positive  human  jurisprudence;  and  these 
|)rinciples,  being  once  incorporated  into  the  system,  and  being  es- 
sentially unlimited,  have  communicated  their  own  vitality  and  power 
of  adaptation  to  the  entire  branch  of  the  national'  jurisprudence 
of  which  they  are,  so  to  speak,  the  substructure.  It  follows  that 
the  department  which  we  call  equity  is,  as  a  whole,  more  just  and 
moral  in  its  creation  of  right  and  duties  than  the  correlative  de- 
partment which  we  call  the  law.  It  does  not  follow,  however,  that 
t'.K'  equity  so  described  is  absolutely  identical  Avith  natural  justice 
ar  moi'ality.     On  the  contrary,  a  considerable  portion  of  its  rules 


;;:)  ri;i:si:.\T   kki.ation.s  ov   ki^uity   with  the  law.  §  08 

are  confessedJy  based  upon  expedieiu-y  or  policy,  rather  than  upon 
any  notions  of  abstract  riglit. 


SECTION  III. 

THE  PRESENT  i;i.E.\l  IONS  OF  EQITTY  WITH  THE  LAW. 

ANALYSIS. 

§   (i8.  liiiporlanco  of   eorrt't'lly  understanding  these  present,  relations. 

§  60.  Changes    in    tlie    relations    of    equity    to    the    law    eflfeeted    partly    by- 
statute  and  partly  by  decisions. 

§§   70-88.  Important  instances  of  such  changes  in  these  relations. 

8   TO.  In  legal  rules  concerning  the  efl'ect  of  the  seal. 

S   71.  Ditto  suits  on  lost  instruments. 

S   72.  Ditto   forfeitures   and    penalties. 

^s;   I'.i,  74.  Ditto  mortgages  of  land. 

5J   75.  In    statutes   concerning   express   trusts. 

§   7(i.  Ditto   recording   and   doctrines   of  priorities. 

§   77.  Ditto  administration  of  decedent's  estates. 

S   78.  Ditto  jurisdiction  over  infants. 

§§   70,80.  Ditto  married  women's  property. 

§   81.  In  statutory  restrictions  upon  the  equitable  jurisdiction. 

§§   82,83.  In  the  practical   abolition   of  the  "auxiliary"   jurisdiction. 

§§   84-88.  In  the  Reformed  Procedure  combining  legal  and  equitable  methods. 
/ 

§  68.  Importance  of  Correctly  Understanding  These  Present  Re- 
lations.— In  accounting:  for  the  historical  origin  of  equity,  and  in 
describing  its  general  nature,  it  is  necessary  to  go  back  to  the 
period  of  its  infancy  and  early  growth,  when  the  common  law  was 
also  in  its  primitive  and  tuideveloped  condition.  We  thus  naturally 
form  a  picture  of  the  two  systems  standing  in  marked  contrast 
and  even  opposition,  acknowledging  different  sources,  controlled  hy 
different  principles,  exhibiting  different  tendencies,  each  complete 
in  itself  and  independent  of  the  other.  The  impression  which  i& 
thus  obtained  of  their  relations  is  too  apt  to  be  retained  in  describ- 
ing the  ecjuity  as  it  has  existed  at  subsequent  times,  and  even  as  it 
exists  at  the  present  day.  The  ett'ect  of  such  a  tendency  to  confuse 
different  epochs  and  conditions  is  shown  in  some  of  the  treatises 
upon  equity  jurisprudence,  which  tacitly  assnme  that  all  of  the 
oi'iginal  antagonism  still  prevails,  and  which,  ignoring  the  great  and 
often  radical  changes  made  in  the  law,  discuss  their  subject-matter 
as  though  the  relations  between  law  and  equity  continued  to  be  the 
same  as  they  Avere  in  the  reign  of  Charles  II.,  or  even  later,  in  the 
reigns  of  Ceorge  III.  and  George  IV.,  and  under  the  chajicellorships 
of  Ijord  Thurlow  and  I^ord  p]ldon — as  though  all  the  harsh,  arbi- 
trary, unjust  rules  which  then  disgraced  the  law  I'cmaincHl  unmodi- 


§  69  EQUITY   JUKISPKUDEXCE.  36 

fiecl.  Such  neglect  to  appreciate  the  actual  condition  of  the  law 
will  lead  to  the  useless  discussion  of  equitable  doctrines  which  have 
become  obsolete,  since  all  occasion  for  their  application  has  been 
removed,  and  will  produce,  almost  as  a  matter  of  course,  a  distorted 
representation  of  equity  as  a  whole.  In  order,  therefore,  to  form 
an  accurate  notion  of  equity,  its  present  relations  with  the  law 
must  be  carefully  observed,  and  to  that  end  the  changes  which 
have  been  made  in  the  law  itself,  and  which  have  modified  those 
relations,  must  be  pointed  out  at  every  stage  of  the  discussion. 
Without  undertaking  to  give  an  exhaustive  enumeration,  or  any 
detailed  description,  I  shall  simply  mention  some  of  the  most  impor- 
tant classes  of  alterations  which  have  been  made  in  the  law  since 
the  principles  and  doctrines  of  ecjuity  were  definitely  settled. 

§  69.  Changes  in  the  Relations  of  Equity  to  the  Law. — These 
changes  have  certainly  been  very  great.  They  have  been  effected, 
frst,  by  the  legislative  Avorlv  of  the  common-law  courts;  and  sccondh/, 
by  statutory  legislation.  Since  the  doctrines  of  equity  began  to 
react  upon  the  law,  and  especially  since  the  impulse  given  by  the 
brilliant  career  of  Lord  Mansfield,  the  common-law  courts  have 
consciously  adopted  and  applied,  as  far  as  possible,  purely  equi- 
table notions — not  so  much  the  technical  equity  of  the  Court  of 
Chancery,  but  the  principles  of  natural  justice— in  their  decision 
of  new  cases,  and  in  the  development  of  the  law,  until  a  large  part 
of  its  rules  are  as  truly  equitable  and  righteous  in  their  nature  as 
those  administered  by  the  Chancellor.  From  time  to  time,  the  leg- 
islature has  interposed,  and  by  occasional  statutes  has  aided  this 
work  of  reform.  During  the  past  generation,  since  about  1830  in 
England,  and  an  earlier  date  in  the  United  States,  this  legislative 
process  of  amendment  has  been  more  constant,  more  systematic,  and 
more  thorough,  extending  to  all  parts  of  the  law,  and  has  been  the 
chief  agency  in  the  work  of  legal  reform.  The  result  is,  that  many 
doctrines  and  rules  which  were  once  exclusively  recognized  and 
enforced  by  chancery  have  become  incorporated  into  the  law,  and 
are  now,  and  perhaps  long  have  been,  administered  by  the  law 
courts  in  the  decision  of  cases.  In  this  manner,  the  law  has  been 
brought  at  many  points  into  a  coincidence  with  equity.  Nor  bas 
the  legislative  work  been  confined  to  the  law;  it  has  largely  acted 
upon  the  system  of  equity,  and  has  brought  that  system  into  a 
closer  resemblance,  external  at  least,  with  the  law.  These  changes 
have  naturally  gone  much  further  in  the  United  States  than  in 
England;  the  law  has  been  more  essentially  altered,  and  equity 
itself  has  been  subjected  to  more  limitations.^ 

^  The  author  instances  alterations  in  the  relations  of  eqiiity  and  law  by  reason 
of  changes  in  the  legal  rules  in  reference  to   (S  70)   the  effect  of  a  seal;  see  post, 


37  THE    CONSTITUENT    PARTS    OF    EQUITY. 


SECTION  IV. 

THE     CONSTITUENT     PARTS    OF     EQUITY. 

ANALYSIS. 

g  89.  Object  of  this  section. 
^§   90,91.  Rights   are   eithei-   "primarv"'    or   "reiiiedial" ;    each    described. 

§   92.  Division    of     "primary'    riglits,    viz.:      1.      Tliose    concerned     with 
personal   status;    2.    Tliose   concerned    willi   things. 
§§  93-95.  Two   general   classes   of   rights   concerned    with   things,   viz.:    "real" 

and   "personal";    each   described. 
§§  96,97.  \\'hat   of  these   kind   of   rights   are   embraced   within   equity;     both 
"primary"  and   "remedial." 
§§   9S-107.  I.   Eqnitable  primary  rights,  kinds  and  classes  of. 
g§   108-110.  II.   Equitable  remedial   rights,   kinds   and   classes  of. 
S    112.  General  classes  of  equitable  remedies, 
f  112.  (iJeneral  classes  of  equitable  remedies. 
§§   113-110.  Mode   of   administering   tlicin. 

§   110.  How  far  legal  and  equitabh^  modes  can  be  combined. 
§   117.  Recapitulation. 

§   110.  How  far  legal  and  equitable  modes  can  be  combined. 
S   117.  Recapitulation. 

§  90.  Classes  of  Rights. — Layino:  out  of  view  the  rales  which 
form  the  "public  law"  and  the  "criminal  law,"  all  the  commands 
and  niles  Avhich  constitute  the  "private  civil  law"  create  two  classes 
of  rights  and  duties,  the  "primary"  and  the  "remedial."  The  pri- 
mary rio'hts  and  duties  form  the  body  of  the  law;  they  include  all 
the  riahts  and  obligations  of  property,  of  contract,  and  of  personal 
status:  they  are  the  very  end  and  object  of  all  law.  If  mankind 
were  so  constituted  that  disobedience  to  legal  rules  was  impossible, 
then  the  law  would  be  entirely  made  up  of  the  rules  which  create 
these  primary  rights  and  duties.  But  since  all  these  primary  rights 
and  duties  may  be  violated,  another  branch  of  the  law  becomes 
necessary'',  which  may  enforce  obedience  by  means  of  the  "Reme- 
dies'" wliich  it  provides.  All  possible  remedies  are  either  substi- 
tutes or  equivalents  given  to  the  injured  party  in  place  of  his  orig- 
inal primary  rights  which  have  been  broken,  or  they  are  the  means 
by  which  he  can  maintain  and  protect  his  primary  rights  in  their 

«S  379,  389:  to  (§  71)  actions  on  lost  instruments;  see  post,  §§  280,  831,  832;  to 
(S  72)  penalties;  see  post,  8  434;  to  (!iS  73.  74)  mortgages;  see  post.  §S  1188-1190; 
to  (§  75)  express  trusts  in  land;  see  post.  SS  1003-1005:  to  (§  70)  recording  and 
prioi-ities;  to (  S  77)  administration  ;  to (?  78)  infants;  to (§  79)  married  women's 
property  and  contracts;  by  reason  of  changes  in  the  law  of  evidence  resiilting 
in  the  partial  flisappearance  of  the  auxiliary  jurisdiction  (§§  82.  83):  and 
above  all  (5S  84-88)  l)y  reason  of  the  reformed  ])r<)(ei]ure  in  the  majority  of  the 
I'nited    States   am!    in    Kngbnid  :    see    post,    SS3.13-358. 


^i):i  EQUITY    JUKlsriaUE-XCE.  38 

actual  form  and  cuiiditiou.  Keniedial  riolits  are  those  which  a 
person  has  to  obtain  some  appropriate  remedy  wiien  his  primary 
rights  have  been  violated  by  another.  Remedial  duties  are  those 
devolving  upon  the  wrong-doer  in  such  case  to  give  the  p'-oper 
remedy  presei'il)ed  bj-  hiw. 

§  92.  Primary  Rig'hts. — A  very  general  analysis  and  classifica-. 
tion  of  Primary  Eights  and  Duties  will,  however,  be  essential  to 
an  accurate  notion  of  the  constituent  parts  of  equity.  The  rules 
and  their  resulting  primary  rights  and  duties  which  make  up  the 
private  municipal  law — omitting,  as  before  stated,  the  public  and 
the  criminal  law — fall  by  a  natural  line  of  separation  into  two  grand 
divisions,  namely:  1.  Those  directly  and  exclusively  concerned  with 
or  relating  to  t'ersons;  2.  All  the  remaining  portions,  which,  in  a 
broad  sense,  relate  to  or  are  concerned  with  Things.  The  first  of 
these  divisions,  under  a  natural  and  logical  system  of  arrangement, 
comprises  only  those  rules  the  exclusive  object  of  which  is  to  define 
the  status  of  persons;  or  in  other  words,  those  which  determine  the 
capacities  and  incapacities  of  persons  to  acquire  and  enjoy  legal 
rights,  and  to  be  subject  to  legal  duties.^  In  the  United  Spates, 
where  nearly  all  distinctions  of  class  have  been  abolished,  and  all 
i)ersons  sui  juris  stand  upon  an  equality  with  respect  to  their  capac- 
ity of  enjo^-ing  civil  rights,  and  of  being  subject  to  civil  duties, 
this  division  contains  but  a  very  small  part  of  the  law,  as  com- 
pared with  the  corresponding  department  in  the  Roman  law,  or 
even  in  the  existing  law  of  many  European  countries.  It  alsc  fol- 
h)ws,  as  a  necessary  consequence  of  this  principle  of  classification, 
that  most  of  the  matter  which  Blackstone,  and  after  him  Kent  and 
other  institutional  Avriters,  have  treated  as  belonging  to  the  so-calUxl 
"Rights  of  Persons,"  has  been  misplaced.  Such  matter  has  nc 
connection  whatever  with  personal  status  or  capacity,  and  if  an\ 
scientific  or  consistent  system  of  arrangement  is  pursued,  it  plainly 
l)eh)ngs  among  those  rules  which  relate  to  Things.^ 

'See  2  Avistin  on  Jurisprudence,  pp.  10,  382,  386,  note,  412;  vol.  3.  ])p. 
170-172. 

-  i^iniply  as  illustrations  of  this  improper  classification,  without  atteniptinw 
to  enumerate  all  the  cases,  I  mention  the  following:  All  the  rules  concerniiifj 
tlie  property  and  contracts  of  married  women,  and  the  contracts  actually  made 
hy  infants,  have  no  proper  place  in  the  division  which  treats  of  the  "Law  as  to 
Persons";  they  form  a  part  of  the  law  concerning  Things,  in  exactly  the  same 
manner,  and  for  exactly  the  same  leasoTi.  that  the  rules  regulating  the  property 
and  contracts  of  adult  men  or  of  single  women  belong  to  the  law  of  things. 
'I'he  same  is  true  of  the  rules  defining  rights  which  Blackstone  calls  "absolute 
rights  of  persons,"  but  which  are  no  more  absolute  than  their  rights  of  property, 
or  rights  growing  out  of  contract.  The  rules  defining  the  rights  and  duties  ex- 
isting between  husband  and  wife,  parent  and  child,  guardian  and  ward,  master 
and  servant,  also  come  within  the  law  concerning  things,  as  trulv  as  do  tho.^o 


39  TIIK    CONS'ITITKNT    I'AKTS    OF    i;(^riTY.  §  05 

§  !)-■).  The  priimiry  rij^iits  enibraeed  in  tlie  second  grand  division 
of  the  law — tlio.se  concerned  witli  or  relating  to  Things — are  nat- 
urally separated  into  two  principal  classes,  namely,  Rights  in  rem, 
or  Real  rights,  and  Rights  in  personam,  or  Personal  rights.  Rights 
in  rem,  or  real  rights,  are  those  which,  from  their  very  nature,  avail 
to  their  possessor  against  all  mankind,  and  a  correlative  duty  rests 
alike  upon  every  person  not  to  molest,  interfere  with,  or  violate  the 
right.  Rights  in  personam,  or  personal  rights,  are  those  which  avail 
to  their  possessor  against  a  specified,  particular  person,  or  body  of 
persons  only,  and  the  correlative  duty  not  to  infringe  upon  or  vio- 
late the  right  rests  alone  upon  such  specified  person  or  body  of 
persons. 

§94.  Real  Rights. — The  first  of  these  classes,  the  rights  in  rem, 
embraces  three  distinct  genera,  which  differ  from  each  other  in  tlie 
subject-matter  over  which  the  rights  extend,  but  not  in  the  essen- 
tial nature  of  the  rights  themselves.  These  three  genera  arc: 
1.  Rights  of  property  of  every  degree  and  kind  over  lands  or  chat- 
tels, things  real  or  things  personal;  2.  The  rights  which  every  per- 
son has  over  and  to  his  own  life,  body,  limbs,  and  good  name-,  o. 
The  rights  which  certain  classes  of  persons,  namely,  husbands,  par- 
ents, and  masters,  have  over  certain  other  persons  standing  in  do- 
mestic relations  with  themselves,  namely,  wives,  children,  and  ser- 
vants and  slaves.  The  rights  of  the  husband,  parent  or  master 
orcr  the  wife,  child,  or  servant  are  in  our  law  very  meager  and 
limited,  but  so  far  as  they  exist  at  all,  they  resemble  the  more 
complete  rights  of  property,  because  they  avail  against  all  man- 
kind, antl  impose  an  equal  duty  upon  every  human  being.  Thus 
the  husband  is.  by  virtue  of  this  right,  entitled  to  the  society  of 
his  wife,  and  the  father  is  entitled  to  the  services  of  his  infant 
children,  while  a  duty  rests  upon  every  person  not  to  violate  these 
rights  by  enticing  away,  seducing,  or  injuring  the  wife  or  child. 
This  latter  group  of  rights  must  not  be  confounded  with  those  which 
the  husband  and  wife,  parent  and  child,  master  and  servant,  Jinld 
against  rajh  oilier,  and  which  resemble  in  their  nature,  the  rights 
arising  from  contract. 

§  95.  Personal  Rights. — The  second  class,  rights  in  personam, 
personal  rights  (called  by  the  Roman  law  "Obligations")  includes 
two  distinct  genera,  namely:  1.  Rights  arising  from  contract;  and 
-.  Rights  arising,  not  from  contract,  but  from  some  existing  rela- 
tion between  two  specific  persons  or  li'roups   of  persons,   which   is 

wliic}i  doflno  tho  rifrlits  and  dntir-^  ('xi^1in<j  l)ot\voon  tlif  partios  to  any  and  every 
contract.  T])P  siihject.  of  coijioration^;.  with  all  of  il'^  ramifications  involvinsj 
every  dppartnioiit  of  the  private  Nrnnicipal  Law.  hasi  not  even  the  semblance  of 
belonging  to  the  division  which  comprises  the  "Law  concerninLC  Persons." 


§  99  EQUITY   JURISPRUDENCE.  40 

generally  created  by  the  law.  .  .  .  The  legal  effect  of  these 
special  relations  is  so  similar  to  that  produced  by  contract,  that 
the  rights  flowing  from  them  were  said  by  the  Roman  law  to  arise 
from  quasi  contract  (quasi  ex  contractu).     .     .    . 

§  98.  I.  Equitable  Primary  Rights. — Equity  consists  in  part  of 
rules  creating  primary  rights  and  duties  differing  from  those  re- 
lating to  the  same  subject-matter,  which  are  purely  legal.  Re- 
curring to  the  classification  given  in  a  former  paragraph  (§92), 
it  will  enable  us  to  fix  the  limits  of  these  primary  rights,  and  to 
determine  the  classes  in  which  they  are  all  found,  with  great  ease 
and  precision.  No  equity  primary  rights  belong  to  the  first  grand 
division  of  rights  relating  to  or  concerned  with  the  status  of  per- 
sons. All  the  rules  which  define  the  capacities  and  incapacities 
of  persons  to  acquire  rights  or  to  be  su]),ject  to  duties  are  strictly 
legal.  The  only  apparent  exceptions  to  this  proposition  are  the 
statutory  special  proceedings  for  determining  whether  a  person  is 
a  lunatic,  or  non  compos  pientis,  or  a  confirmed  drunkard,  and  the 
statutory  suits  for  divorce,  which  in  many  of  the  states  are  confided 
to  the  Chancellor,  or  to  a  judge  or  court  possessing  equity  powers. 
But  in  the  first  place,  these  proceedings  are  wholly  statutory,  and 
do  not  belong  to  the  ec[uity  jurisdiction  as  such;  and  in  the  second 
place,  they  are  wholly  remedial.^  All  the  primary  rights,  therefore, 
which  form  a  part  of  equity  are  referable  to  the  second  division 
of  Rights  relating  to  Things. 

§  99.  From  this  division,  also,  there  must  be  a  process  of  elim- 
ination. In  the  department  of  Real  rights,  Rights  in  rem,  very  im- 
portant and  broad  limitations  are  to  be  made.  No  equitable  primary 
rights  are  contained  in  the  second  of  the  three  genera  into  which 
real  rights  are  divided — or  those  which  a  person  possesses 
over  his  own  life,  bod}'',  limbs,  or  good  name.  All  the  rights  of  this 
kind  are  purely  legal ;  they  are  the  very  flower  and  fruit  of  the 
common  law — its  highest  excellence ;  and  equity  does  not  intrude 
upon  this  peculiar  field  of  the  law.  Nor  are  any  equitable  primary 
rights  contained  in  the  third  of  these  genera — the  rights  held  by 
certain  classes  of  persons  over  certain  other  persons  occupying  spe- 
cial domestic  relations  towards  themselves.  The  rules  which  define 
these  rights,  and  determine  the  powers  of  husbands  over  their  wives, 
parents  over  their  children,  guardians  over  their  wards,  masters 
over  their  servants,  belong  exclusively  to  the  domain  of  the  law; 

*  These  proceedings  are  in  truth  remedies;  they  are  intended  to  ascertain 
and  establish  the  status  of  hinacy,  unsoundness  of  mind,  etc.,  or  to  dissolve 
the  status  of  marriage;  but  they  do  not  determine  the  capacities  or  incapacities 
of  lunatics,  etc., — all  the  rules  which  determine  who  ai-e  lunatics,  insane, 
married,  etc.,  and  their  caj^acities,  are  wholly  legal,  and  are  not  equitable. 


41  THE    COXSTITri:XT    PARTS    OF    EQllTY.  §  101 

e(|nity  does  not  interfere  with  these  purely  personal  relations.  It 
is  only  when  some  property  rights  or  (piestions  concerning  prop- 
erty arise  between  husband  and  wife,  parent  and  child,  guardian 
and  ward,  that  equity  can  possibly  have  jurisdiction,  and  even  in 
such  cases  the  jurisdiction  does  not  extend  to  the  merely  personal 
relations.^ 

§  100.  We  are  now  prepared  by  this  process  of  elimination  to 
define  with  exactness  the  classes  of  primary  rights  and  duties  which 
alone  come  within  the  domain  of  equity,  and  thus  form  a  part  of 
its  jurisprudence.  Among  the  rights  in  rem,  real  rights,  it  is  only 
those  of  the  first  genus,  the  rights  of  property.  Avhich  do  or  can 
come  within  the  scope  of  equity.  Among  the  rights  in  personam, 
personal  rights,  both  of  the  genera,  those  arising  from  contract 
and  those  arising  from  particular  relations  subsisting  between  two 
or  more  specific  persons,  may  come  Avithin  the  domain  of  equity. 
The  rights  and  duties  of  the  parties  growing  out  of  contracts,  and 
especially  those  growing  out  of  certain  determinate  relations  not 
based  upon  contract,  but  directly  concerned  with  property,  such 
as  trustee  and  cestui  que  trust  in  all  its  forms,  guardian  and  ward, 
executor  or  administrator  and  legatees,  distributees,  or  creditors. 
and  the  like,  constitute  a  large  and  important  part  of  the  primary 
rights  falling  under  the  equitable  jurisdiction.  Having  thus  re- 
ferred the  primary  rights  which  equity  creates  to  their  general 
classes.  I  shall  now  describe  with  more  of  detail  their  essential  na- 
ture and  qualities. 

§  101.  It  must  be  premised  that  in  most  instances  the  legal 
primary  right,  and  the  corresponding  but  different  equitable  pri- 
mary right,  arise  from  the  same  facts,  circumstances,  acts,  or  events 
which  are  the  occasion  of  both.  But  in  some  instances,  facts,  cir- 
cumstances, or  events  which  are  not  the  occasion  of  any  legal  right 
at  all  give  rise  to  a  primary  right  in  equity.^  With  respect  to  the 
equitable  primary  rights  taken  as  a  whole,  it  is  proper  to  say  that 
most  of  them  are  simply  different  from  or  additional  to  those  which 
exist  at  law;  they  do  not  contradict  any  rules  upon  the  same  sub- 
ject-matter which  the  common  law  provides:  but  they  are  supple- 
mentary, touching  upon  particulars  in  relation  to  which  the  law  is 

*The  text  is  pitocl  to  this  effect  in  Lombard  v.  Morse,  155  Mass?.  136.  29  N. 
E.  505,   14  L.  R.  A.  273. 

^  A  familiar  example  will  illustrate  botli  of  these  cases.  From  the  same  fact. 
namely,  a  valid  written  contract  for  the  sale  of  land,  there  arise  the  lejral  right 
of  the  vendee,  and  also  his  very  different  equitable  ripht.  From  a  verbal  contract 
for  the  sale  of  land  when  part  performed,  there  arisos  no  lecral  ritrht  whatever; 
but  these  facts,  the  verbal  contract  touethev  with  the  part  performance,  are  the 
occasion  of  an  equitable  rijjht  in  the  vendee  which,  is  even  a  riijht  of  propcrtj', 
an   equitable  estate  in  the   land   itself. 


§  105  EQUITY   JIKISPKUDEXCE.  42 

silent.  Between  this  class  of  equitable  rights  and  the  correspond- 
ini?  legal  rights  there  is,  therefore,  no  eontiict;  each  is  absolutely 
true  at  all  times  and  in  all  places;  equity  courts  recognize  and 
administer  the  one,  and  law  courts  the  other,  without  clashing  or 
discord.  With  respect  to  another  portion  of  these  primary  equita- 
ble rules  and  rights,  it  must  be  said  that  they  are  not  merely  addi- 
tional to,  but  they  are  in  actual  eontiict  with,  the  legal  rules  and 
rights  concerning  the  same  subject-matter,  or  arising  from  the  same 
circumstances;  between  the  kind  of  equitable  rules  and  rights  and 
the  corresponding  portions  of  the  law,  there  is,  therefore,  an  an- 
tagonism; the  equity  courts  admit  and  uphold  a  particular  right  as 
resulting  from  a  certain  state  of  facts,  which  the  law  courts  not 
only  refuse  to  recognize,  but  which  they  would  deny  and  oppose. 
This  contrariety  existed  to  a  much  larger  extent  in  the  infancy 
of  the  system  than  it  does  now ;  it  has  gradually  become  less  as 
the  law  itself  has  grown  more  liberal  and  equitable.  That  there 
should  be  any  such  conflict  between  two  departments  of  a  municipal 
law  is  undoubtedly  a  blemish  upon  the  national  jurisprudence;  but 
this  condition  had  a  strictly  hi.storical  origin,  and  the  very  progress 
towards  perfection  largely  consists  in  the  elimination  of  these  in- 
stances of  antagonism.  It  should  be  remembered,  also,  that  equity 
sometimes  furnishes  its  remedies  for  the  violation  of  primary  rights- 
which  are  strictly  legal,  as,  for  example,  in  many  cases  of  account- 
ing.- 

§  105.  I  pass  to  examples  of  other  kinds.  Wherever  the  books 
or  the  courts  speak  of  "equitable  estates,"  either  in  land  or  in 
chattels,  as  held  by  a  person,  there  are  in  reality  equitable  rmT 
rights,  rights  in  rem,  rights  of  property,  in  the  land  or  chattels, 
different  from  or  additional  to  the  rights  arising  from  the  same 
facts  which  the  law  confers  upon  the  same  party.  The  kinds  and 
degrees  of  these  equitable  rights  of  property  are  numerous,  ranging 
from  the  most  complete,  beneficial  ownership,  simply  wanting  the 
legal  title,  through  various  grades  to  mere  liens;  the  special  rules 
concerning  them  constitute  an  important  part  of  equity  jurispru- 
dence.^    .     .     . 

-  Tlio  foregoing  description  of  equitable  primary  rights  is  illustrated  by  the 
following  instances;  (S  102)  primary  and  remedial  rights  in  equity  of  a  debtor 
on  a  sealed  obligation  who  has  paid  the  debt  but  has  failed  to  take  an  acquittance 
under  seal,  or  a  surrender  of  the  instrument;  see  post,  §  38.3;  (§  103)  primary 
and  remedial  rights  in  equity  of  a  purchaser  of  land  by  verbal  contract  which 
has  been  part  performed;  see  post,  S  1409;  (S  104)  married  women's  contracts  in 
equity;  see  post,  §§1121-1126;  (§104  note)  right  of  creditor  against  estate  of 
deceased  joint  debtor;    see  post,  §  400. 

'  Examples  of  equitable  estates  or  rights  of  property,  arising  from  circum- 
stances whicli  create  only  a  jjersonal  right  at  law:    (§  10.5)   estates  arising  from 


-13  THE  cox.sTrri"i:xT  paki's  ok  ei^iitv,  §  109 

;$  108.  II.  Equitable  Remedies. — E(niity  consists,  to  a  very  ^reat 
extent,  of  Remedies  and  Keniedial  Rights  diU'erent  from  any  which 
the  law  administers  by  means  of  its  ordinary  actions;  although  it 
does,  under  certain  circumstances,  grant  remedies  which  are  legal 
in  their  nature,  and  are  capable  of  being  conferred  by  a  judgment 
at  law,  namely,  a  mere  recovery  of  mone}',  or  of  the  possession  of 
specific  land  or  chattels.  J\Lany  of  the  ordinary  ecjuitable  remedies 
are  derived  directly  fi'om  the  nature  of  the  primary  right  which 
the}'  are  intended  to  protect.  For  example,  in  the  ca.se  of  a  contract 
for  the  purchase  of  land,  or  of  an  implied  trust  in  land,  or  of  any 
other  transaction  from  which  the  equitable  primary  right  consists 
in  a  right  of  propert}^  this  equitable  estate,  although  the  real,  bene- 
ficial ownership  is  subject  to  some  great  inconveniences  which  lessen 
its  value,  the  holder  of  the  legal  title  in  trust  for  the  equitable  owner 
cannot  defeat  the  latter 's  right  as  long  as  he  retains  such  title  in  his 
own  hands,  but  he  can  convey  it  to  another  bona  fide  purchaser,  and 
thus  cut  otf  the  existing  equitable  estate.  To  prevent  this,  and  to 
secure  his  full  enjoyment  of  the  property,  a  peculiar  remedy  is 
given  to  the  equitable  owner,  by  which  he  establishes  his  right,  per- 
fects his  interest,  compels  a  conveyance  of  the  legal  title,  and  a 
transfer  of  the  possession,  if  necessary,  and  thus  acquires  a  full  and 
indefeasible  estate,  legal  as  well  as  equitable,  in  the  land.^  A  large 
class  of  remedies  are  thus  based  upon  and  exactly  fitted  to  the  na- 
ture of  the  primary  right;  these  remedies  are  distinctively  equitable; 
and  their  intimate  correspondence  with  the  primary  rights  which 
they  enforce  has,  more  than  anything  else  perhaps,  led  to  the  mis- 
take, alluded  to  in  a  former  paragraph,  of  confounding  all  equitable 
primary  rights  M'ith  rniicdial  ones,  and  of  supposing  that  equity  is 
wholly  a  system  of  remedies. 

§  109.  The  distinguishing  characteristics  of  legal  remedies  are 
their  uniformity,  their  uuchangeableness  or  fixedness,  their  lack  of 
adaptation  to  circumstances,  and  the  technical  rules  wdiich  govern 
their  use.  The  legal  remedies  by  action  are,  in  fact,  onl^y  two:  re- 
covery of  possession  of  specific  things,  land  or  chattels,  and  the  re- 
covery of  a  sum  of  money.  When  a  person  is  owner  of  land  or  of 
chattels  in  such  a  way  that  he  is  entitled  to  immediate  possession,  he 
may  recover  that  possession:  but  since  the  action  of  "Ejectment" 
has  taken  the  place  of  the  old  real  actions,  a  recovery  of  the  land 

oxocutory  contract  for  i)urcliase  and  sale  of  land;  see  post,  §  368;  (§106)  resulting 
trust  in  land  in  favor  of  one  with  whose  money  the  land  is  purchased  by  an- 
other; see  post,  SS  1037-1043  :(S  107)  express  passive  trusts  in  lands;  see  post, 
SS!lS8-nflO;    estate  in  equity,  of  mortgagor;     see  post.  §§1180,   1181. 

'  This  paragraph  of  the  text  is  cited  in  Provisional  Municipality  of  Pensacola 
V.  Lclniian.  57  Fed.  324,  330,  13  U.  S.  App.  411  (suit  for  specific  performance 
again^l   ;i   nuiiiicipnlil y) . 


§11;;  EQUITY   J  UKlSFia'DEXCE.  44 

by  its  means  does  not  neeessarih'  determine  or  adjudge  the  title,  and 
in  a  recovery  of  chattels  b}^  the  action  of  replevin,  the  title  is  only 
determined  in  an  incidental  manner.^  For  all  other  violations  of  all 
possible  primary  rights,'  the  law  gives,  as  the  only  remedy,  the  re- 
cover}^ of  money,  which  may  be  either  an  ascertained  sum  owed  as 
a  debt,  or  a  sum  by  way  of  compensation,  termed  damages.  Equi- 
table remedies,  on  the  other  hand,  are  distinguished  by  their  flexi- 
bility, their  unlimited  variety,  their  adaptability  to  circumstances, 
and  the  natural  rules  which  govern  their  use.  There  is  in  fact  no 
limit  to  their  variety  and  application;  the  court  of  equity  has  the 
power  of  devising  its  remedy  and  shaping  it  so  as  to  fit  the  chang- 
ing circumstances  of  every  case  and  the  complex  relations  of  all  the 
parties." 

§  111.  ,  .  .  Equity  has  followed  the  true  principle  of  con- 
triving its  remedies  so  that  they  shall  correspond  both  to  the  pri- 
mary right  of  the  injured  party,  and  to  the  wrong  hy  which  that 
right  has  been  viofated.  It  has,  therefore,  never  placed  any  limits 
to  the  remedies  which  it  can  grant,  either  with  respect  to  their 
substance,  their  form,  or  their  extent ;  but  has  always  preserved 
the  elements  of  flexibility  and  expansiveness,  so  that  new  ones  may 
be  invented,  or  old  ones  modified,  in  order  to  meet  the  requirements 
of  every  case,  and  to  satisfy  the  needs  of  a  progressive  social  con- 
dition, in  which  new  primary  rights  and  duties  are  constantly  aris- 
ing,  and  new  kinds  of  Avrongs  are   constantly  committed.^ 

113.  The  equitable  remedies  also  differ  from  the  legal  ones  in 
the  manner  of  their  administration.     The  common-law  rules  of  pro- 

^  It  sliould  be  rcinembcrcd  tliat  I  nm  speaking  of  the  common-law  formic  of 
acTion,  and  not  of  the  system  introduced  by  the  reformed  procedure.  Since  in 
tlie  action  of  ejectment  the  plaintiff  was  a  fictitious  person,  and  not  the  real 
party  in  interest,  a  judgment  was  no  bar  to  any  number  of  succeeding  actions; 
it  required  a  suit  in  equity  and  a  perjietual  injunction  to  restrain  the  continuous 
bringing  of  such  actions  in  a  given  case,  and  to  declare  the  title.  In  the  Ameri- 
can states,  statutes  liave  ])ut  a  limit  upon  the  number  of  separate  actions  whicli 
may  be  brought.  Un(h»r  the  reformed  procodvire,  the  action  to  recover  land  really 
has  nothing  in  common  with  "ejectment":  it  rather  resembles  the  old  "real  ac- 
tion" in  determining  the  title  as  well  as  the  possession,  and  it  is  so  regarded  in 
some  of  the  states.  But  V)v  strange  inconsistency,  the  statutes  of  other  states 
treat  it  as  only  a  simplified  ejectment,  and  the  judgment  recovered  l)y  it  as  not 
finally  adjudicating  upon  the  title.  In  a  few  of  the  states,  the  old  common- 
law   "real   action"    is   still    used    instead    of    ejectment. 

"Tlie  text  is  quoted  in  Sourwine  v.  Supreme  Lodge.  12  Tnd.  App.  447.  54  Am. 
St.  Rep.   532,  40  X.   E.   640.   1    Scott   320. 

^The  text  is  quoted  in  I'nion  Pacific  R.  Co.  v.  Chicago.  R.  T.  &  P.  R.  Co.,  1()3 
V.  S.  504,  10  Sup.  Ct.  1173:  Columbia  Ave.  Sav.  Fund,  etc..  Co.  v.  City  of  Daw- 
son, 130  Fed.  152,  170;  Harrigan  v.  Cilchrist  (Wis.),  00  N  W.  000:  Sourwine 
V.  Supreme  Lodge,  12  Ind.  App.  447.  54  Am.  St.  Rep.  532.  40  X.  E.  G46,  1  Scott 
320;   and  cited  in  Kessler  &  Co.  v.  Enslcy  Co..  120  Fed.  307. 


45  THE    COXSTITUEXT    PARTS    OF    EQUITY.  §  113 

cedure  are  fixed,  rigid,  arbitrary,  technical,  while  those  of  the  equity 
suit  ai'e  natui-al  and  flexible.  In  no  features  is  the  contrast  greater 
than  in  respect  to  parties  and  to  judgments.  The  doctrines  of  the 
common  law  concerning-  the  parties  to  actions,  their  joint  or  several 
rights  and  liabilities,  and  the  form  of  judgment  based  upon  these 
respective  kinds  of  right  and  liability,  are  the  crowning  technicality 
of  the  system,  resting  upon  verbal  premises  which  mean  nothing,  and 
built  up  from  these  premises  by  the  most  accurate  processes  of  mere 
verbal  logic.  It  was  a  fundamental  principle  tJiat  no  one  could  be 
a  plaintiff  unless-he  was  alone  or  jointly  with  the  co-plaintiffs  en- 
titled to  the  whole  recovery,  nor  a  defendant  unless  he  was  alone  or 
jointh^  with  the  co-defendants  liable  to  the  entire  demand.  The 
common  law  knew  no  such  thing  as  the  making  a  person  plaintiff 
Avho  did  not  share  the  right  of  recovery,  or  defendant  who  was  not 
liable  for  the  whole  claim,  merehj  for  the  purpose  of  binding  him  by  the 
jiuJgnicnt  and  cutting  off  any  possible  rigid  on  his  part.^  The  judgment 
must  be  one  single,  entire  recovery,  both  as  aft'ects  the  plaintiff's  and 
the  defendants;  and  no  one  could  be  a  plaintiff'  who  did  not  thus 
hold  the  legal  title,  even  though  all  beneficial  interest  in  the  cause  of 
action  belonged  to  another.  On  this  ground  the  assignor  of  a  thing 
in  action  not  negotiable  must  be  the  plaintiff",  and  the  ability  of  an 
assignee  to  bring  an  action  is  wholly  the  result  of  statute.  Where 
the  action  was  by  two  or  more  plaintiff's,  the  judgment  was  neces- 
sarily a  single  one  in  favor  of  all  considered  as  one  undivided  body. 
It  was  impossible  that  each  one  of  several  plaintiff's  could  recover  a- 
diff'erent  sum  of  money  by  way  of  debt  or  damages.  Even  if  the 
action  was  for  the  possession  of  chattels  or  land,  different  plaintiff's 
could  not  recover  distinct  chattels  or  tracts  of  land;  the  judgment 
was  for  all  the  chattels  as  one  subject-matter,  or  for  the  whole  land 
as  a  unit,  and  if  the  plaintiff' 's  rights  were  diff'erent  they  must  be 
undivided,  so  that  each  share,  being  as  yet  nnpartitioned,  should  ex- 
tend throughout  the  entire  mass,  and  the  judgment  be  for  all  as 
joint  or  co-owners.  The  same  rule  extended  to  the  defendants.  If 
there  were  two  or  more,  one  single  judgment  must  be  rendered 

'  Tills  rule  has  been  cliaugod  by  tlie  new  procedure  as  adopted  in  several  of  the 
western  states,  which  very  properly  requires  that  when  an  action  is  brought  by 
the  assijrnee  of  a  thing  in  action,  except  of  a  negotiable  paper,  the  assignor  must 
be  made  a  party  either  plaintiflT  or  defendant,  so  that  he  may  be  heard,  if  neces- 
sary, on  the  question  as  to  the  validity  of  the  alleged  assignment,  and  any  future 
claim  against  the  debtor  on  his  part  may  be  barred  by  the  jiulgment.  This  inno- 
vation, which  strikes  at  the  verA*  root  of  the  common-^law  theory  as  to  parties 
and  judgments,  has  been  in  operation  for  years  without  the  slightest  difficulty, 
and  its  advantages  are  patent.  This  single  fact  demonstrates  the  utter  worth- 
lessness.  the  mere  vrbal  cimraoter,  of  llie  so-called  legal  reasoning  by  which 
the  common-law  dogmas  have  been   U])held. 


§  115  EQUITY  JTRISPKI'DEXCE.  46 

against  all;  different  recoveries  against  separate  defendants  in  the 
same  action  were  impossible.  The  common  law  permitted  no  affirma- 
tive relief,  no  recovery  of  debt  or  damages,  land  or  chattels,  in  favor 
of  a  defendant  against  a  plaintiff',  except  perhaps  in  the  little  used 
and  now  virtually  obsolete  legal  action  of  "account."  Even  in  the 
case  of  "Recoupment  of  Damages,"  which  was  a  recent  invention  of 
the  common-law  courts,  the  demand  on  behalf  of  the  defendant  was 
only  used  defensiveh/.  The  exceptional  case  of  "Set-off,"  in  which 
alone  an  affirmative  recovery  always  pecuniary  was  ever  possible  in 
favor  of  the  defendant,  was  wholly  of  a  statutory  origin. 

§  114.  The  equitable  doctrines  with  respect  to  parties  and  judg- 
ments are  wholly  unlike  those  which  prevailed  at  the  common  law, 
different  in  their  fundamental  conceptions,  in  their  ];^ractieal  opera- 
tion, in  their  adaptability  to  circumstances,  and  in  their  results  upon 
the  rights  and  duties  of  litigants.  The  governing  motive  of  equity 
iu  the  administration  of  its  remedial  system  is  to  grant  full  relief, 
and  to  adjust  in  the  one  suit  the  rights  and  duties  of  all  the  parties, 
which  really  gro^v  out  of  or  are  connected  with  the  subject-matter  of 
that  suit.  Its  fundamental  principle  concerning  parties  is.  that  all 
persons  in  whose  favor  or  against  whom  there  might  be  a  recover}^, 
however  partial,  and  also  all  persons  who  are  so  interested,  although 
indirectly,  in  the  subject-matter  and  the  relief  granted,  that  their 
rights  or  duties  might  be  aft'ected  by  the  decree,  although  no  sub- 
stantial recovery  can  be  obtained  either  for  or  against  them,  shall  be 
made  parties  to  the  suit ;  and  it  is  not  ordinaril3'  a  matter  of  substan- 
tial importance  whether  they  are  joined  as  plaintiffs  or  as  defend- 
ants, although  this  question  of  procedure  is  regulated  to  a  certain 
extent  by  rules  based  upon  considerations  of  convenience  rather  than 
upon  any  essential  requirements  of  the  theory.  The  primary  object 
is,  that  all  persons  sufficiently  interested  may  be  before  the  court,  so 
that  the  relief  may  be  properly  adjusted  among  those  entitled,  the 
liabilities  properly  apportioned,  and  the  incidental  or  consequential 
claims  or  interests  of  all  may  be  fixed,  and  all  may  be  bound  in 
respect  thereto  by  the  single  decree. 

§  115.  The  fundamental  principle  of  ecjuity  in  relation  to  judg- 
ments is,  that  the  court  shall  determine  and  adjust  the  rights  and 
liabilities  concerning  or  connected  with  the  subject-matter  of  all 
the  parties  to  the  suit,  and  shall  grant  the  particular  remedy  appro- 
priate in  amount  and  nature  to  each  of  those  entitled  to  any  relief, 
and  against  each  of  those  who  are  liable,  and  finally  shall  so  frame  its 
decree  as  to  bar  all  future  claims  of  any  party  before  it  which  may 
arise  from  the  subject-matter,  and  which  are  within  the  scope  of  the 
present  adjudication.  In  rendering  its  decree,  a  court  of  equity  is 
not  hampered  by  any  of  the  arliitrary  regulations  which  restrict  the 


47  THE    CONSTITUENT    rAUTS    OE    EtiUriY.  ^  lib' 

action  of  common-law  tribunals;  and  espeeially,  it  is  not  bound  to 
i^'ive  a  sinjile  judgment  in  favor  of  the  co-plaintiffs  rej^arded  as  one 
body,  nor  against  the  defendants  as  a  groui)  of  persons  jointly  or 
ecjually  liable.  In  this  respect  it  possesses  a  full  freedom  to  adapt 
its  rehef  to  the  particular  rights  and  liabilities  of  each  party,  and  to 
determine  the  special  interests  of  all,  so  far  as  they  are  legitimately 
connected  with  the  subject-matter,  and  properly  within  the  scope  of 
the  adjudication.  It  has  power  to  grant  relief  to  some  of  the  co-- 
plaintiff's,  and  not  to  others,  and  against  some  of  the  co-defendants, 
and  not  against  others;  it  can  confer  different  reliefs  in  kind  and  ex- 
tent to  different  plaintiff's  and  against  dift'erent  defenda*nts;  it  can 
bestow  affirmative  relief  upon  all  or  some  of  the  defendants  against 
all  or  some  of  the  plaintiff's;  and  finally,  it  can  determine  and  adjust 
the  rights  and  duties  of  the  co-plaintiff's,  or  of  the  co-defendants,  as 
"between  themselves.  I  would  not  be  understood  as  asserting  that 
this  extreme  flexibility  or  apportionment  of  remedies  and  obligations 
is  common  in  ordinary  equitable  suits,  nor  that  it  is  without  limit  and 
control ;  on  the  contrary,  it  is  regulated  by  rules  of  pleading  and 
procedure  so  contrived  that  all  parties  may  be  informed  of  the  claims 
made  against  them,  and  of  the  liabilities  to  which  they  are  exposed. 
My  object  here  is  simply  to  state  the  general  principles  of  the  Equity 
Eemedial  System,  and  to  describe  the  power  which  inheres  in  a  court 
of  equitable  jurisdiction  to  mold  its  decree  and  to  adjust  its  reliefs 
so  as  to  establish  and  enforce  the  particular  rights  and  liabilities, 
legitimately  connected  with  the  subject-matter,  and  within  the  scope 
of  the  judgment,  of  all  the  parties  to  the  action.  The  modes  in  which 
this  power  should  be  exercised  according  to  the  rules  of  pleading  and 
procedure  must  be  considered  in  another  place. 

§  IIG.  The  remedial  system  of  equity  as  a  whole,  with  its  great 
variety  of  specific  remedies  which  enforce  the  verj'  primary  rights 
and  duties  of  persons  rather  than  give  pecuniary  equivalents  for 
their  violation,  with  its  power  to  enlarge  the  scope  of  these  ordinary 
forms  of  relief,  and  even  to  contrive  new  ones  adapted  to  new  cii'- 
cumstances,  with  its  comprehensive  rules  concerning  parties,  and 
with  its  unlimited  control  over  the  form  and  material  of  its  judg- 
ments, possesses  enormous  advantages  over  the  narrov;,  inflexible 
and  artificial  methods  of  the  common  law.  The  reformed  American 
procedure  has  attempted  to  combine  the  two,  or  rather  to  enlarge 
the  equity  doctrines  and  rules,  so  that  they  may  embrace  all  actions, 
legal  as  well  as  equitable;  and  in  those  states  where  the  courts  have 
accepted  and  carried  out  the  reform  in  its  true  spirit,  this  attempt 
has  been  successful  as  far  as  is  possible  from  the  essential  elements 
of  the  two  jurisdictions.  A  eomplete  amalgamation,  however,  is  not 
possible,  so  long  as  the  jury  trial  is  retained  in  legal  actions.     .     .     . 


§  IIT  KQUITY  JURISPRUDEXCE.  A8 

§  117.  To  snm  up  the  discussions  of  the  foregoing  section:  The 
entire  municipal  law,  so  far  as  it  is  concerned  with  private  civil  re- 
lations, comprises, — 1.  Legal  rules  defining  legal  primary  rights  and 
duties  applicable  to  most  of  the  facts  and  circumstances  which  have 
been  brought  within  the  range  of  jural  relations;  2.  Legal  rules  de- 
fining legal  remedial  rights  and  duties  and  remedies,  which  are  few 
in  number,  and  very  limited  in  their  nature  and  form;  3.  Equitable 
rules  defining  equitable  primary  rights  and  duties  applicable  to  cer- 
tain classes  of  jural  relations,  which  rights  and  duties  are  supplemen- 
tary and  additional  rather  than  contradictory  to  the  legal  ones  af- 
fecting the  same  relations;  4.  Equitable  rules  defining  equitable  pri- 
mary rights  and  duties  applicable  to  a  comparatively  fcAV  facts  and 
circumstances,  which  are  actually  conflicting  with  the  corresponding 
legal  rights  and  duties;  5.  Equitable  rules  defining  equitable  reme- 
dial rights  and  duties  and  remedies,  which  are  much  more  various 
in  their  nature  and  form,  specific  in  their  object,  and  flexible  in  their 
operation,  than  the  remedies  supplied  by  the  law.  There  is,  there- 
fore, no  clashing  nor  uncertainty  with  respect  to  the  final  absolute 
rights  and  duties  of  individuals,  except  so  far  as  such  conflict  or 
doubt  may  arise  from  the  comparatively  few  rules  of  the  fourth 
class,  where  the  antagonism  between  equity  and  the  law  does  actu- 
ally exist.  It  is  certainly  strange,  inexplicable  except  upon  historical 
grounds,  that  in  an  age  and  country  advanced  in  civilization,  the 
municipal  law  should  present  such  an  anomaly,  that  a  married 
woman's  agreement,  for  example,  should  be  utterly  void  by  the  rules 
of  the  laAV,  while,  according  to  the  doctrines  of  equity,  it  might  be 
valid  and  enforceable  out  of  her  separate  estate;  or  that  a  certain 
contract  for  the  sale  of  land  should  be  treated  as  an  absolute  nullity 
by  a  court  of  law,  and  should  be  regarded  as  binding  and  specifically 
executed  by  a  court  of  equity.  If  any  change,  however,  is  to  be  made 
for  the  purpose  of  removing  this  discord,  it  must  be  in  the  legal  and 
not  in  the  e(]uitable  rules.  The  latter  are,  in  all  instances,  the  more 
just,  and  more  in  accordance  with  the  sentiments  and  opinions  of 
the  age;  while  the  former  are  necessarily  subordinate,  some  of  them 
have  become  practically  obsolete,  and  all  of  them  would  be  totally 
abandoned  in  any  thorough  revision  or  scientific  codification  of  our 
entire  jurisprudence. 


4.9  THE  riaxcji'LEs  or  cla-ssification.  §  128 

SECTION  V. 

THE    PKIXCIPLES    OF    CLASSIFICATION. 

ANALYSIS. 

§   lis.  Tniportanee  ami  diflicilty  of  a  correct  classification. 
§§   no,  120.  Diflereiit  grounds  which  might  be  taken  for  a  classification. 
§§   121-125.  Ordinary    mode    of    classification    according    to    the   nature    of    the 
jurisdiction. 

§   121.  In  the  three  divisions  of  exclusive,  concurrent,  and  auxiliary. 
§§   122,  123.  Different  modes  of  carrying  ovit  this  system  by  various  writers. 
§§   124,125.  Fundamental  objections  to  this    system  of  classification. 
§§   126,  127.  The    true    principles    of    classification    in    the    present    condition    of 
Equity. 

§   128.  Plan  ami  order  of  arrangement  in  this  treatise. 

§  121,  Ordinary  Mode  of  Classification. — The  plan  of  arrangement 
which  has  been  followed  by  most  authors  of  general  treatises  is  based 
upon  the  relations  which  formerly  existed  between  equity  and  the 
law  when  the  two  jurisdictions  were  as  yet  wholly  distinct,  and  were 
administered  by  separate  tribunals.  Its  divisions  were  made,  not 
according  to  any  inherent  quality  or  nature  either  of  rights  or  reme- 
dies, but  according  to  a  purely  accidental  quality  of  the  jurisdiction. 
.  .  .  This  plan  of  classification  separates  the  whole  body  of  equity 
into  the  three  following  grand  divisions:  1.  That  containing  the 
matters  in  respect  of  which  courts  of  equity  had  an  exclusive  juris- 
diction ;  2.  That  containing  matters  in  respect  of  which  courts  of 
equity  had  jurisdiction  concurrently  with  courts  of  law;  3.  That 
containing  matters  in  respect  of  which  the  equity  jurisdiction, 
though  exclusive,  was  wholly  exercised  in  aid  of  certain  actions  or 
proceedings  which  belonged  exclusively  to  courts  of  law.  In  brief, 
the  classification  which  has  ordinarily  been  adopted  in  the  text-books 
is.  the  Exclusive  Jurisdiction,  the  Concurrent  Jurisdiction,  and  the 
Auxiliary  Jurisdiction. 

§  128.  I  shall  in  the  following  treatise  adopt  the  general  plan, 
principles  of  classification,  and  method  of  treatment  described  in  the 
foregoing  paragraphs.  The  entire  work  will  be  separated  into  fonr 
parts.  Fart  Fimt  will  contain  an  inquiry  into  the  nature  and  extent 
of  the  Equity  Jurisdiction  as  it  now  exists  in  the  United  States,  both 
in  its  original  and  general  form,  and  a.s  limited  or  regulated  by  the 
statutory  legislation  of  the  various  states  and  of  the  Congress  of  the 
United  States.  The  throe  remaining  parts  will  treat  of  the  Equity 
Jurisprudence,  or  the  doctrines  which  are  administered  by  the  courts 
in  the  exercise  of  their  equitable  jurisdirtion.  Part  Second  will  dis- 
cuss the  grand  principles  and  maxims  which  are  the  foundation  of 

4 


§  1^8  i:(^UITY   JUKISPKUDENCE.  50 

Equity  Jurisprudence,  and  the  sources  of  its  particular  doctrines, 
and  will  also  describe  some  of  the  most  important  facts  and  events 
which  are  the  occasions  of  equitable  primary  and  remedial  rights  and 
duties.  Part  Third  will  contain  that  portion  of  Equity  Jurisprudence 
which  consists  of  Primary  Rights  and  Duties,  or  in  other  words,  of 
equitable  estates,  titles,  and  interests.  Part  Fourth  will  contain  that 
portion  of  Equity  Jurisprudence  which  consists  of  remedial  rights 
and  duties  and  of  remedies.  This  description  does  not  include  any 
discussion  of  mere  procedure.  The  term  "Remedies,"  as  it  has  been 
defined,  and  as  it  will  be  used  throughout  the  book,  does  not  em- 
brace the  rules  of  procedure,  but  only  the  reliefs  which  are  granted 
for  a  violation,  actual  or  threatened,  of  legal  and  equitable  rights. 


I 


PART   FIRST. 

THE  NATURE  AND  EXTENT  OF  EQUITY  JURISDICTION, 


CHAPTER  FIRST. 

THE  GENERAL  DOCTRINE  CONCERNING  THE  JURIS- 
DICTION. 


SECTION  I. 

FUNDAMENTAL    PRINCIPLES     AND     DIVISIONS. 

ANALYSIS. 

§   129.  Equity  jurisdiction  defined. 

§    130.  lleijuisites  in  order  thsit  a  case  may  come  within  it. 

§    131.  Distinction    between    the    existence    of    equity    jurisdiction    and    the 
proper  exercise  of  it. 

S   132.  Inadequacy  of  legal  remedies,  how  far  the  test. 

§   133.  Equity  jurisdiction   depends  on  two   facts:     the   existence  of   equi- 
table interests,  and  the  inadequacy  of  legal  remedies. 
§§   134.  135.  How  far  the  jurisdiction  is  in  personam,  how  far  in  rem. 

S   136.  Equitt  jurisdiction  tineefold. — exclusive,  concurrent,  and  auxiliary. 
§§   137.  138.  What  embraced  in  the  exclusive  jurisdiction. 
§§    130.  140.  What  embraced  in  the  concurrent   jurisdiction. 

S   141.  Cases  may  fall  under  both. 
§§   142-144.  What  embraced   in  the  auxiliary   jurisdiction. 

§    14-5.  Order  of  subjects. 

§  129.  Equitable  Jurisdiction  Defined. — It  is  important  to  obtain 
at  the  ontset  a  olear  and  aeenrate  notion  of  what  is  meant  by  the 
term  "Equity  Jurisdiction."  It  is  used  in  contradistinction  to 
"jurisdiction"  in  greneral,  and  to  "common-law  jurisdiction"  in  par- 
ticular. In  its  most  freneral  .sense  the  term  "jurisdiction,"  when  ap- 
plied to  a  court,  is  the  power  residinp:  in  such  court  to  determine  ju- 
dicially a  ^ven  action,  controversy,  or  question  presented  to  it  for 
decision.  If  this  power  does  not  exist  with  reference  to  any  particu- 
lar case,  its  determination  by  the  court,  is  an  absolute  nullity;  if  it 
does  exist,  the  determination,  however  erroneous  in  fact  or  in  law, 
is  bindiner  upon  the  parties  until  reversed  or  set  aside  in  some  pro- 
ceeding authorized  by  the  practice,  and  brousrht  for  that  express  pur- 


§  130  EQUITY  JURISPKUDEXCE.  52 

pose/  It  is  plain  that  the  term  used  in  this  strict  sense  maij  be  ap- 
plied to  courts  of  equity  as  well  as  to  any  other  tribunals.  With 
this  signification  of  the  word,  it  would  be  said  that  an  equity  court 
has  no  jurisdiction  to  try  the  issues  arising  upon  an  indictment,  and 
to  render  judgment  in  a  criminal  prosecution ;  the  entire  proceeding 
would  be  null  and  void.  On  the  other  hand,  it  is  equally  plain  that 
this  strict  meaning  is  not  always  given  to  the  term  "equitj^  juris- 
diction," as  it  is  ordinarily  used.  The  proceedings  and  judgment  of 
a  court  of  chancery  or  of  a  court  clothed  with  equity  powers  are  not 
necessarily  null  and  void  because  the  action  is  not  one  which  comes 
within  the  scope  of  the  "equity  jurisdiction"  in  the  common  accepta- 
tion of  that  phrase,  or  in  other  words,  because  the  claim  is  one  for 
which  there  is  a  full,  adequate,  and  complete  remedy  at  law.-  This 
well-settled  rule  furnishes  a  decisive  test,  and  shoAvs  that  when  ordi- 
narily speaking  of  the  "equity  jurisdiction"  we  do  not  thereby  refer 
to  the  genei-al  power  inherent  in  a  court  to  decide  a  controversy  at 
all, — a  power  so  essential  that  its  absence  renders  the  decision  a  mere 
nullity,  but  we  intend  by  the  phrase  to  describe  some  more  special 
and  limited  judicial  authority. 

§130.  "Equity  jurisdiction,"  therefore,  in  its  ordinary  accepta- 
tion, as  distinguished  on  the  one  side  from  the  general  poAver  to  de- 
cide matters  at  all.  and  on  the  other  from  the  jurisdiction  "at  law" 
or  "common-law  jurisdiction,"  is  the  power  to  hear  certain  kinds 
and  classes  of  civil  causes  according  to  the  principles  of  the  method 
and  procedure  adopted  by  the  court  of  chancery,  and  to  decide  them 
in  accordance  with  the  doctrines  and  rules  of  equity  jurisprudence, 
which  decision  maj^  involve  either  the  determination  of  the  equitable 
rights,  estates,  and  interests  of  the  parties  to  such  causes,  or  the 
granting  of  equitable  remedies.  In  order  that  a  cause  may  come 
within  the  scope  of  the  equity  jurisdiction,  one  of  two  alternatives 
is  essential ;  either  the  primary  right,  estate,  or  interest  to  be  main- 
tained, or  the  violation  of  which  furnishes  the  cause  of  action,  must 
be  e(iuitable  rather  than  legal;  or  the  remedy  granted  must  be  in 
its  nature  purely  equita1)le,  or  if  it  be  a  remedy  which  ?»«//  also  be 
given  by  a  court  of  law,  it  must  be  one  which,  under  the  facts  and 
eii'cumstances  of  the  case,  can  only  be  made  complete  and  adequate 
through  the  equitable  nu)des  of  procedure.  At  the  same  time,  if  a 
court  clothed  with  the  equity  jurisdiction  as  thus  described  should 
hear  and  decide,  according  to  equitable  methods,  a  case  which  did 
not  fall  within  the  scope  of  the  e(|uity  jurisprudence,  because  both 
the  primary  right  invaded  constituting  the  cause  of  action  and  the 

^  See  Hunt  v.  Hunt,  72  N.  Y.  217.  228-2.30,  28  Am.  Eep.  129,  by  Folger,  J.  in 
•which  the  sTibject  is  explained  in  a  very  clear  and  convincing  manner. 
'Creelv   v.    \'>:\\    Slate    R.    Co.,    10.3    :\fass.    .514. 


53  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  \33 

remedy  granted  were  Avholly  legal,  and  l)elungiri«r  properly  to  tiie 
domain  of  the  law  courts,  such  judgment,  iu)wever  erroneous  it 
might  be  and  liable  to  reversal,  would  not  nccvi^sarihi  be  null  and 
void.  On  the  contrary,  as  will  be  more  I'uHy  stated  hereafter,  the  ol)- 
jeetion  that  the  case  does  not  come  within  this  so-called  equity  juris- 
diction must  ordinarily  be  definitely  raised  by  the  defendant  at  the 
commencement  of  the  proceedings,  or  else  it  will  be  regarded  as 
waived,  and  the  judgment  will  not  even  be  erroneous.^  In  some  in- 
stances, however,  where  the  equitable  functions  of  the  court  are  spe- 
cifically defined  by  statute,  or  the  facts  show  very  clearly  that  the 
rights  involved  in  the  controversy  and  the  remedies  demanded  are 
purely  legal,  and  completely  within  the  scope  of  ordinary  legal  pro- 
ceedings, the  court  of  equity  will  itself  take  the  objection  at  any 
stage  of  the  cause,  and  will  dismiss  the  suit,  although  no  objection 
h.as  in  any  way  been  raised  by  the  parties. - 

§  132.  Extent  of  the  Jurisdiction. —  .  .  .  The  attempt  has 
been  made  to  furnish  one  comprehensive  test  for  the  solution  of 
all  questions  which  may  arise  as  to  the  existence  of  the  jurisdiction 
— to  reduce  all  special  rules  to  one  general  formula.  To  this  end, 
it  has  often  been  said  by  courts  as  well  as  by  text-writers  that  the 
equity  jurisdiction  extends  to  and  embraces  all  civil  cases,  and 
none  others,  in  which  there  is  not  a  full,  adequate,  and  complete 
remedy  at  law.     .     . 

§133.  The  general  criterion  which  has  thus  been  proposed  is, 
however,  insufficient  and  misleading.  Although  the  inadequacy  of 
legal  remedies  explains,  and  is  even  necessary  to  explain,  the  inter- 
position of  equity  in  certain  classes  of  cases,  it  wholly  fails  to  ac- 
count in  any  consistent  and  correct  manner  for  the  entire  equity 
jurisdiction.  The  history  of  the  court  of  chancery  shows  that  all 
its  powers  cannot  be  referred  to  this  source.  It  is  true  that  the 
common-law  modes  of  procedure  are  utterly  inadequate  to  meet  all 
the  ends  of  justice,  and  to  administer  all  the  remedies  which  are 
granted  by  equity;  and  that  in  simie  general  sense  equity  is  estab- 
lished to  supply  this  defect  in  the  law.  But  the  absence  of  full, 
adequate,  and  complete  remedies  at  law  does  not  constitute  a  basis 
upon  Avhich  to  rest  the  whole  equity  jurisdiction,  nor  furnish  a 
practical  explanation  of  all  the  doctrines  and  rules  which  make  up 
the  eciuity  jurisprudence.  No  theory  is  scientifically  complete,  nor 
practically  efficient,  which  does  not  recognize  two  distinct  sources 
and  objects  of  the  equity  jurisdiction,  namely,  the  primary  rights, 
estates,  and  interests  which  ecjuity  jurisprudence  creates  and  pro- 
tects, and  the  remedies  which  it  confers.     These  two  facts  in  com- 

K'roely  v.   Bay   State   P..    Co.,    103   Mass.   514. 
-Hipp  V.  Jiabin,  If)  How.  271,  278. 


§  137  EtiLiTY  ,]ri;i>ri;rDi:N(i:.  54 

bination  can  alone  define  the  extent  antl  fix  the  limits  of  the  equity 
iurisdiction. 

§136.  Divisions. — Adopting',  therefore,  the  primary  rights,  es- 
tates, and  interests  ^vhieh  equity  creates,  and  the  remedies  which 
it  confers,  as  the  objects  which  define  and  limit  the  extent  of  the 
equity  jurisdiction,  I  shall  state  the  principles  by  which  the  extent 
and  limits  of  that  jurisdiction  are  ascertained.  It  has  been  cus- 
tomary among  writers  to  distinguish  the  equitable  jurisdiction  as 
exclusive  and  concurrent,  and  some  have  added  the  third  .subdivision, 
aii.rUiary. 

§  137.  Exclusive  Jurisdiction. — The  exclusive  jurisdiction  ex- 
tends to  and  embraces,  first,  all  civil  cases  in  which  the  primary 
right  violated  or  to  be  declared,  maintained,  or  enforced — whether 
such  right  be  an  estate,  title,  or  interest  in  property,  or  a  lien  on 
property,  or  a  thing-  in  action  arising:  out  of  contract — i.s  purely 
equitable,  and  not  legal,  a  right,  estate,  title,  or  interest  created 


by  equity,  and  not  by  law^  All  cases  of  this  kind  fall  under  the 
ecjuitable  jurisdiction  alone,  because  of  the  nature  of  the  primary 
or  substantive  right  to  be  redressed,  maintained,  or  enforced,  and 
not  because  of  the  nature  of  the  remedies  to  be  granted  -,  although 
in  most  of  such  instances  the  remedy  is  also  equitable     .     .     . 

§  138.  The  exclusive  jurisdiction  includes,  secondJij.  all  civil 
cases  in  which  the  remedy  to  be  granted — and,  of  course,  the 
remedial  right — is  purely  equitable,  or  one  which  is  recognized  and 
administered  by  courts  of  equity,  and  not  by^  courts  of  law.  In  the 
cases  of  this  class,  the  primary  right  which  is  maintained,  redressed, 
or  enforced  is  sometimes  equitable  and  is  sometimes  legal ;  but  the 
juridiction  depends,  not  upon  the  nature  of  these  rights,  estates, 
or  interests,  ])ut  wholly  upon  the  nature  of  the  remedies.^  Cases 
in  which  the  remedy  sought  and  obtained  is  one  which  equity 
courts  alone  are  able  to  confer  must,  upon  any  consistent  system 
of  classification,  belong*  to  the  exdusive  jurisdiction  of  equity,  even 
though  the  primary  right,  estate,  or  interest  of  the  party  is  one 
wliich  courts  of  law  recognize,  and  for  the  violation  of  which  they 
give  some  remedy.  Thus  a  suit  to  compel  the  specific  performance 
of  a  contract  falls  under  the  exclusive  jurisdiction  of  equity,  al- 
though a  legal  right  also  arises  from  the  contract,  and  courts  of 
law  will  give  the  remedy  of  damages  for  its  violation 
Again,  the  particular  fact  or  event  which  occasions  the  peculiar 
equitable  remedy,  and  gives  rise  to  the  right  to  such  remedy,  may 
also  be  the  occasion  of  a  legal  remedy  and  a  legal  remedial   right 

'  I'he  text  is  quoted  in  Montana  Ore  Pn  roll  a  sin, 2'  Co.  v.  Boston  &  "SL  Consol. 
(".  &  S.  Min.  Co.,  27  Mont.  .530,  70  Pac.  1114,  71  Pac.  100.5,  an  action  to  quiet 
title. 


55  FUNDAMENTAL    PRINCIPLES    AND    DIVISIONS.  §  139 

simultaneous  with  the  equitable  one.  This  is  especially  tru.e  with 
reference  to  fraud,  mistake,  and  accident.  Fraud,  for  example, 
may  at  the  same  time  be  the  occasion  of  the  legal  remedy  of  dam- 
ages and  of  the  equitable  relief  of  cancellation.  These  two  classes 
of  cases  cannot,  however,  be  regarded  or  treated  as  belonging  to 
the  concurrent  jurisdiction;  such  a  mode  of  elassifieation  could 
only  be  productive  of  confusion.  The  criterion  which  I  have  given 
is  always  simple  and  certain  in  referring  to  the  exclusive  jurisdic- 
tion all  cases  in  which  the  remedy  is  given  by  courts  of  equity'- 
alone,  without  regard  to  the  nature  of  the  substantive  right  which 
forms  the  basis  of  the  action,  or  to  the  fact  or  event  which  is  the 
occasion  of  the  required  relief.  In  this  manner  only  is  the  notion 
of  jurisdiction  preserved  distinct  from  all  questions  as  to  the  pro- 
priety of  exercising  that  jurisdiction  and  of  granting  relief  by  equity 
courts  in  particular  cases.     .    .     . 

§  139.  Concurrent  Jurisdiction. — The  concurrent  jurisdiction  em- 
braces all  those  civil  cases  in  which  the  primary  right,  estate,  or 
interest  of  the  complaining  party  sought  to  be  maintained,  enforced, 
or  redressed  is  one  which  is  cognizable  by  the  law,  and  in  which 
the  remedy  conferred  is  of  the  same  kind  as  that  administered, 
under  the  like  circumstances,  by  the  courts  of  law — being  ordi- 
narily a  recovery  of  money  in  some  form.  The  primary  right,  the 
estate,  title,  or  interest,  Avhich  is  the  foundation  of  the  suit,  must 
be  legal,  or  else  the  case  would  belong  to  the  exclusive  jurisdiction 
of  equity;  and  the  law  must,  through  its  judicial  procedure,  give 
some  remedy  of  the  same  general  nature  as  that  given  by  ecjuity, 
but  this  legal  remedy  is  not,  under  the  circumstances,  full,  adequate, 
and  complete.  The  fact  that  the  legal  remedy  is  not  full,  adequate, 
and  complete  is,  therefore,  the  real  foundation  of  this  roncurrent 
branch  of  the  equity  jurisdiction.^    This  principle  is  well  illustrated 

^  The  text  is  quoted  in  Myers  v.  Sierra  Valley  Stock  &  Agrie.  Assn..  122  Cal. 
069.  55  Pac.  689  (remedy  to  enforce  contribution  among  stockholders  is  at  law)  ; 
Buck'v.  Ward,  97  Va.  209,  33  S.  E.  513  (suit  to  recover  money  expended  by  reas- 
on of  defendant's  fraud). 

There  is  a  distinction  here  of  great  importance,  but  which  has  often  been 
nverlooked.  The  Avant  of  a  full,  adequate,  and  complete  remedy  at  law.  under 
the  circumstances  of  the  parti^-ular  case,  is  also  the  reason  why  the  jurisdiclioK 
of  equity  is  actually  exercifted,  and  a  decision  is  made  in  favor  of  the  plaintiff 
jrranting  him  equitable  relief,  in  some  instances  of  the  exclusive  jurisdiction:  av. 
for  example,  in  suits  for  the  specific  performance  of  contracts.  But  such  fact  is 
not  in  these  instances  the  foundation  of  Ihe  juriftdiction  :  it  is  only  the  occa- 
iqnity  are  competent  to  administer  the  same  remedy,  and  the  foundation  of  X\\^ 
si(m  on  which  a  decision  is  riirlitfully  made  in  pursuance  of  the  doctrines  of  equi- 
ty jurisprudence  by  courts  already  possessinir  the  jurisdiction.  The  jurisdiction 
exists  because  courts  of  equity  alone  are  competent  to  administer  tbese  remedies. 
In  all  instances  of  conciirrruf  jnri^diftioii.  both  the  courts  of  law  and  those  of 


§  142  EQUITY   JUIUSPKUDEXCE.  56 

by  the  case  of  contribution  among  sureties.  The  surety  entitled  to 
reimburseinent  may  maintain  an  action  at  hiw,  and  recover  a  pecun- 
iary judgment  against  each  of  the  persons  liable  to  contribution, 
but  this  legal  relief  is  subject  to  so  many  limitations  that  it  may 
often  fail  to  restore  the  plaintiff  to  his  rightful  position.  The  equity 
suit  for  a  contribution  gives  exactly  the  same  final  remedy — a  re- 
covery of  money;  but  on  account  of  the  greater  freedom  and  adapt- 
ability to  circumstances  incident  to  the  equitable  procedure,  it 
enables  the  plaintiff'  in  one  proceeding  to  obtain  such  complete 
reimbursement  as  relieves  him  ett'ectually  from  all  the  burden  which 
does  not  properly  rest  upon  him,  and  produces  a  just  equality  of' 
recompense  as  well  as  of  loss  among  all  the  parties.^ 

§  142.  Auxiliary  Jurisdiction. — The  auxiliary  jurisdiction,  in  its 
original  and  true  scoi)e  and  meaning,  is  in  fact  a  special  case  of  the 
"exclusive,"  since  its  methods  and  objects  are  confined  to  the 
equity  procedure.  In  all  suits  which  belong  to  this  jurisdiction  in 
its  original  and  proper  sense,  no  remedy  is  either  asked  or  granted; 
their  sole  object  is  the  obtaining  or  preserving  of  evidence  to  be 
used  upon  the  trial  of  some  action  at  law.  The  eases  embraced 
within  this  proper  auxiliary  jurisdiction  are  suits  for  discovery,  to 
obtain  an  answer  under  oath  from  a  party  to  a  pending  or  antici- 
pated action  at  law,  which  answer  may  be  used  as  evidence  on 
the  trial  of  such  action;  suits  for  the  perpetuation  of  evidence;  and 
suits  for  the  obtaining  of  evidence  in  a  foreign  country.  The  latter 
two  species  of  suits  are  practically  obsolete  in  this  country,  having 
been  superseded  by  more  summary  and  efficient  proceedings  author- 
ized by  statutes. 

jurisdiction  in  equity  is  tlie  inadequacy  of  the  relief  as  it  is  administered  through 
means  of  the  legal  proeeilure.  The  exclusive  jurisdiction  of  equity  rests  upon 
an  entirely  diflerent  foundation,  and  exists  absolutely  without  reference  to  the 
adequacy  of  legal  reliefs.  'J'his  distinctitm  is  a  plain  one.  but  is  often  lost  sight 
of;  the  two  classes  of  cases  are  often  confounded,  and  the  equitable  jurisdiction, 
in  all  instances  exclusive  and  concurrent,  is  made  to  r<'st  merely  upon  tht  in- 
adequacy of  legal  remedies.  This  error  grows  out  of  the  tendency  to  confound 
questions  as  to  the  equitable  jurisdiction  ;  i.  e.,  tlie  i)ower  of  equity  courts  to  hear 
and  decide,  with  the  altogether  diflferent  questions  as  to  the  rightfulness  of  their 
decision;  i.  e.  whether,  according  to  the  doctrines  of  equity,  a  case  unquestion- 
ably within  their  jurisdiction  was  properly  decided. 

^Bering  v.  Earl  of  Winchelsea,  1  Cox  218,  1  Lead.  Cas.  Eq.  120,  Sh.  94,  1 
Scott  367. 


57,  THE    EXCLUSIVE    JUIUSDICTION.  §  IKi 

SECTION  II. 
THE  EXCLUSIVE  .JURISDICTION. 

ANALYSIS. 

§   146.  Equitable   priniaiy   rigid s  and   "equiUos''   dofiiiod. 
§§   147-149.  Equitable  estates   described. 

§   150.  Certain    distinctive    equitable    doctrines    forming    part    of    equity 
jurisprudence. 
§§    151-155.  Trusts   described. 

§    150.  Executors    and    administrators. 
§§    15?,  158.  Fiduciary   relations. 
§§   159,  U)0.  I\Iarried  women's  separate?  property. 

§   101.  Estates  arising  from   equitable   conversion. 
§§    1G2,  103.  Mortgages  of  land. 

§    164.  ^Mortgages  of  personal   property. 
§§   165-167.  Equitable  liens. 
§§   168,  169.  Estates   arising   from   assignment  of  tilings   in   action,   possibilities, 

etc.,  and  from  an  equitable  assignment  of  a  fund. 
§§   170-172.  Exclusive    equitable    remedies    described. 

§  146.     Equitable  Estates,  Interests,  and  Rights  in  Property. — It 

was  stated  in  the  preeedinp;  section^  that  the  exclusive  jurisdiction 
included,  first,  all  civil  cases  based  upon  or  relating  to  equitable 
e:=tates,  interests,  and  rights  in  property  as  the  subject-matter  of 
the  action,  whatever  may  be  the  nature  of  the  remedy;  and  secondly, 
<".ll  civil  cases  in  which  tlie  remedy  granted  is  ])ur(^]y  equitable,  tbat 
is,  administered  by  courts  of  equity  alone,  whatever  may  be  the 
nature  of  the  primary  right,  estate,  or  interest  involved  in  the 
action.  I  purpose  now  to  describe  these  two  classes  in  a  general 
manner.  Equitable  primary  rights,  interests,  and  estates  may  exist 
in  things  real  and  in  things  personal,  in  lands  and  in  chattels. 
They  are  also  of  various  amounts  and  degrees,  from  the  substantial 
beneficial  ownership  of  the  subject-matter  down  to  mere  liens.  In 
all  cases,  however,  they  are  rights  in,  to,  or  over  the  subject-matter, 
recognized  and  protected  by  equity,  and  are  to  be  distinguished 
from  the  so-called  "ecpiities,"  a  term  which,  when  properly  used, 
denotes  simply  the  right  to  some  remedy  administered  by  courts 
of  equity.-  A  cestui  que  trust,  a  mortgagee,  a  vendee  in  a  contract 
for  the  sale  of  land,  is  clothed  with  an  equitable  estate  or  interest; 

^  §§  137,  138. 

"The  term  "an  equity"  is  tbus  synonymous  with  what  T  have  denominated 
an  equitable  remedial  right.  It  is,  however,  constantly  used  in  a  broader  and 
improper  sense,  as  describing  every^  kind  of  right  which  cquitj'  jurisprudence 
recognizes, — estates  and  Interests  in  land,  or  chattels,  liens,  and  rights  to  obtain 
remedies.  Such  indiscriminate  use  of  the  term  only  tends  to  produce  confusion 
of  thoiisht. 


§  14S  EQUITY  JTRISPRUDEXCE.  58 

wliile  the  mere  right  to  liave  an  instrunieut  reformed  or  canceled, 
or  to  have  a  security  marshaled,  and  the  like,  is  properly  "an 
equity." 

§  147.  Equitable  Estate  Defined. — An  equitable  estate,  in  its  very 
conception,  and  as  a  fact,  requires  the  snnultaneous  existence  of 
two  estates  or  ownerships  in  the  same  subject-matter,  whether  that 
be  real  or  personal — the  one  legal,  vested  in  one  person,  and  recog- 
nized only  by  courts  of  law;  the  second  equitable,  vested  in  an- 
other person,  and  recognized  only  by  courts  of  equity.  These  two 
interests  must  be  separate,  and  as  a  rule,  must  be  held  b,y  different 
persons;  for  if  the  legal  estate  and  the  equitable  estate  both  be- 
come vested  in  the  same  person  by  the  same  right,  then,  as  a  gen- 
eral rule,  a  merger  takes  place,  and  the  legal  estate  alone  remains.^ 
There  are  indeed  exceptions  to  this  general  doctrine;  for  under 
certain  circumstances,  as  will  appear  hereafter,  equity  prevents  such 
a  merger,  and  keeps  alive  and  distinct  the  two  interests,  although 
they  have  met  in  the  same  owner.-  In  all  cases  of  equitable  estates. 
as  distinguished  from  lesser  interests,  whether  in  fee,  for  life,  or 
for  years,  they  are  in  equity  what  legal  estates  are  in  law;  the 
ownership  of  the  eqnitable  estate  is  regarded  by  equity  as  the  real 
ownership,  and  the  legal  estate  is,  as  has  been  said,  no  more  than 
the  shadow  always  following  the  equitable  estate,  which  is  the  sub- 
stance, except  where  there  is  a  purchaser  for  value  and  without 
notice  who  has  acquired  the  legal  estate.^  This  principle  of  a 
double  right,  one  legal  and  the  other  equitable,  is  not  confined  to 
equitable  estates,  properly  so  called;  it  is  the  essential  characteristic 
of  every  kind  of  equitable  interest  inferior  to  estates.  In  the  total 
ownership  resulting  from  mortgages,  or  from  the  operation  of  the 
doctrine  of  convei'sion,  or  from  the  assignment  of  things  in  action, 
and  other  interests  not  assignable  at  law,  and  in  liens,  there  is  al- 
Avays  a  legal  title  or  estate  vested  in  one  person,  recognized  b}' 
courts  of  law  alone,  and  an  equitable  interest.  OAvnership,  or  claim, 
distinct  from  a  >iK're  right  of  action  or  remedial  right,  vested  in 
another  person,  which  is  recognized,  aud.  according  to  its  nature, 
protected  or  enforced  by  courts  of  equity. 

§  148.  Ecpiitable  estates  and  interests  of  all  kinds  are  separated 
by  a  broad  line  of  distinction,  with  respect  to  their  nature  and  the 
mode  in  which  e(|uity  deals  with  them,  into  two  classes.  The  first 
class  contains  those  in  which  the  equitable  estate  is  regarded  as  a 
permanent,  subsisting  ownership;  the  separation  between  the  legal 

'  Selby  V.   Alston.   .",    \'o>.    .^.^O. 

"These  apparent,  exee]itions  really  eonfirni  the  crenernl  rule.  See  post.  §§  TSG- 
SOO. 

'  See    Burgess  v.   Wheate,   1    Eden.   22'\.    1    Seott   58. 


■)9  TlIK    KXCLISIVK    JURISDICTION".  §  14'.' 

and  equitable  titles  is  not  treated  as  an  anomaly,  much  less  a  wronu-, 
but  as  a  fixed  and  necessary  condition  to  be  preserved  as  long'  as 
the  e<iuitable  interest  continues;  and  the  various  rules  and  doctrines 
of  equity  are  concerned  with  the  respective  rights  and  liabilities 
of  the  two  owners,  while  the  remedies  given  to  the  ecpiitabie  ow^ner 
are  intended  to  preserve  his  estate,  and  to  protect  it  both  against 
the  legal  owner  and  against  third  persons.  The  class  embraces 
most  species  of  express  trusts,  the  interests  created  b}-  mortgages 
as  originally  established  by  the  court  of  chancery,  the  interests  re- 
sulting from  an  assignment  of  things  in  action.  These  various  spe- 
cies of  equitable  estates  and  interests  might  w^ell  be  described  by 
applying  to  them  the  term  "permanent."  In  the  second  class  the 
.separation  of  the  two  interests  is  regarded  as  always  temporary, 
and  in  many  instances  as  actually  wrongful.  There  is  a  certain 
antagonism  between  the  equitable  and  the  legal  owaiership  or  right, 
and  the  very  existence  of  the  legal  estate  is  often  in  complete  vio- 
lation of  the  rights  of  the  equitable  dwner.  The  doctrines  and  rules 
of  equity  concerning  this  class  do  not  contemplate  a  permanent 
separation  between  the  two  interests;  the  rights  of  the  equitable 
ow^ner  are  hostile  to  those  of  the  legal  proprietor;  while  the  reme- 
dies given  to  the  equitable  owner  always  have  for  their  object  the 
perfecting  of  his  rights  against  the  legal  estate,  and  very  generally 
consist  in  compelling  a  complete  transfer  of  the  legal  estate,  so 
that  the  equitable  owner  shall  obtain  the  legal  title  in  addition  to 
the  equitable  interest  which  he  already  possesses.  The  class  em- 
braces resulting,  implied,  and  constructive  trusts,  the  interests  aris- 
ing from  the  operation  of  the  doctrine  of  conversion,  and  liens,  in- 
cluding the  equitable  interest  of  mortgagees  according  to  the  doc- 
trine which  prevails  in  many  of  the  states.  Equitable  estates  of 
the  first  class  are  very  numerous  in  England,  by  reason  of  the  cus- 
toms of  landed  proprietors  and  the  frequency  of  marriage  settle- 
ments, provisions  for  families  in  wills,  the  separate  property  of 
married  women,  charitable  foundations,  and  other  species  of  ex- 
press trusts:  and  a  very  large  part  of  equity  as  administered  in 
England  is  concerned  with  these  permanent  equitable  estates.  Al- 
though not  unknowm.  they  are,  from  our  w^idely  different  social 
customs  and  practices  of  landowners,  comparatively  very  infrequent 
in  tills  cnuntry. 

§  149.  From  the  universality  of  this  double  ownership,  or  sep- 
aration of  the  legal  and  equitable  titles  between  two  proprietors  or 
holders,  which  is  an  essential  feature  of  trusts,  all  species  of  ecfuita- 
i)le  estates  and  interests  might  possibly  be  regarded  as  particular 
kinds  of  trusts,  or  as  special  applications  of  the  general  principles 
concerning  trusts.    Thus  the  holder  of  the  legal  title  in  assignments 


§  170  EQUITY   JLIUSPKUDEXCE.  CO 

of  things  in  action,  in  cases  of  conversion,  in  mortgages  and  in 
liens,  no  less  than  in  trusts  proper,  is  frequently  spoken  of  as  the 
trustee,  and  the  holder  of  the  equitable  interest  as  the  cestui  que 
trust.  It  would  be  possible,  therefore,  to  treat  the  entire  jurisdic- 
tion of  equity  over  e(|uitable  estates  and  interests,  and  these  es- 
tates and  interests  themselves,  as  based  upon  and  included  within 
the  single  subject  of  trusts.  But  this  method,  while  resting  upon 
some  analogies  and  external  resemblances,  Avould  overlook  essen- 
tial differences  between  the  various  estates  and  interests  created 
by  equity,  and  would  therefore  be  misleading. 

§  150.  ....  The  purely  equitable  estates  and  interests  which 
come  within  the  exclusive  jurisdiction  and  constitute  the  first  branch 
thereof  are  the  following,  separated,  for  purposes  of  convenience 
as  to  treatment,  into  general  groups:  Trusts-/  married  women's 
separate  property;-  equitable  interests  arising  from  the  operation 
of  the  doctrine  of  conversion  f  equitable  estates  or  interests  arising 
from  mortgages  of  real*  or  of  personal'^  property,  and  from  pledges'^ 
of  chattels  or  securities;  equitable  liens  on  real  and  on  personal 
property  ;^  equitable  interests  of  assignees  arising  from  assignments 
of  things  in  action,  possibilities,  and  the  like,  not  assignable  at 
law,  or  arising  from  transactions  Avhich  do  not  at  law  operate  as 
assignments.* 

§  170.     Exclusively   Equitable   Remedies. —     .     .     .     There   are 

'An  outline  of  tliese  topics,  snb>stantially  similar  to  that  in  the  omitted  §§  151- 
109,  may  be  obtained  by  a  study  of  the  following  paragraphs:  Uses  and  trusts; 
§§970-978,  983,  984,  980,.  987.  Classes  of  trusts;  §987.  Express  private  pas- 
sive and  active  trusts;  §§  988,  989,  991.  Express  public  trusts  or  charities; 
§8  1018,  1020,  1028,  1029.  Trusts  arising  by  operation  of  law;  §§  10.30,  1031, 
1034.  Executors  and  administrators,  and  estates  of  decedents;  §§  1152-11.54. 
Fiduciary  relations;    §§   1088,  1097. 

'Married  women's  separate  property  and  contracts;  See  §§  1098,  1099,  1105, 
irZl,   1125. 

^Conversion;     See  §§   371.   1159. 

*  Mortgages,  the  P^nglish  doctrine;  §§  1179-1182.  The  American  doctrine;  §§ 
1180-1188,    1190. 

'^  Mortgages   of   personal   pi'opeity;    §§1229,    1230,    1232. 
« Pledges;     §   1231. 

'Equitable  liens,  in  general;  §§  1233,  1234.  Various  classes  of  liens;  §§  1235, 
1230,    1239,   1244,   1249,    1255,    1200,   12<'>3,   1204.   1208,    1209. 

*  Assignments  of  things  in  action,  possibilities,  contingencies,  and  expectan- 
cies; §§  1270-1273,  1277,  1278,  1283,  1285,  1287.  Equital)le  assignment  of  a 
fund;      §    1280. 

To  these  might  be  added,  as  an  example  of  equitable  primary  rights  not  being 
estates  or  interests  in  nor  liens  on  specific  property,  the  right  in  equity  of  a  credi- 
tor against  the  personal  representatives  of  a  deceased  joint  debtor,  although  his 
right  is  wholly  gone  at  law;  and  the  similar  right  of  the  personal  representatives 
of  a  deceased  joint  creditor. 


61  Tiii:  cuxcLiajEXT  jlkisuictio.n.  j?  Ho 

certain  general  <inalities  belonging  to  all  these  remedies,  which 
should  be  ck^arly  and  correctly  understood;  otherwise  our  notu)ns 
of  the  remedial  functions  of  equity  will  be  partial,  confused,  and 
even  erroneous.  1.  These  exclusive  remedies  may  be  granted  in 
order  to  protect,  maintain,  or  enforce  primary  rights,  estates,  or 
interests  which  are  legal  as  well  as  those  which  are  equitable;  they 
are  not  administered  in  behalf  of  equitable  substantive  rights  alone. 
As  illustrations,  an  injunction  is  often  given  to  prevent  the  inva- 
sion of  a  legal  ownership  or  interest,  a  decree  quieting  title  is  often 
rendered  to  establish  an  existing  legal  estate,  and  the  like.  And 
in  many  instances  where  the  existing  primary  right,  estate,  or  in- 
terest of  the  complainant  is  equitable,  the  very  object  and  effect 
of  the  remedy  is  to  clothe  him  with  the  corresponding  legal  right, 
estate,  or  interest;  as,  for  example,  when  the  beneficiary  under  a 
constructive  trust,  or  the  vendee  under  a  contract  for  the  sale  of 
land,  obtains  a  decree  directing  a  conveyance  of  the  legal  title.^ 


SECTION  III. 

THE    CONCURRENT    .lURLSDlCTlOX. 

ATS'AI,Y.SIS. 

§§   173,174.  What  embraced  in  the  concurrent  jurisdiction;   inadequacy  of  legal 
remedies  defined. 
§    175.  The  remedies  piven  must   be  legal  in  tlieir  nature. 
§8   17G-179.  General    principle;    when    no   concurrent   jurisdiction    exists. 
§§    177,  178.  Examples   of   such   cases. 

§   179.  Where  a  law  court  has  first  taken  cognizance  of  a  case. 
§   180.  General  principle;  where  concurrent  jurisdiction  does  exist. 
S   181.  Rule   first.      Wliere   equity   has   jurisdiction   for   any   partial    pur- 
pose, it  may  retain  the  cause  for  all  purposes. 
§   182.  Rule    second.      Where    equity    originally    had    jurisdiction,    and    the 
law    subsequently    acquires    jurisdiction    over    the    same    matter, 
the   equity   jurisdiction  still    continues. 
§   183.  Effect  of  the  reformed  pi'ocedure  upon  the  equity   jurisdiction. 
§§   184-189.  Enumeration   of   the   principal   matters   over   which   the   concurrent 
jurisdiction  ordinarily  extends. 
S   18.5.  Suits  for  the  recovery  of  lands  and  of  chattels. 
§§  18(i-188.  Suits   for  pecuniary  recoveries. 

§   188.  Suits  arising  from  accident,  mistake,  or  fraud. 
§    189.  Other  special  cases. 

^  As  to  the  maxim  Equity  acts  in  personam  and  not  in  rem,  and  its  somewhat 
limited  application  at  the  present  day;  and  that  equitable  remedies  deal  with 
property  rights  rather  than  with  mere  personal  rights  and  obligations,  and  are 
specific  in  their  nature,  see  post,  §§  428,  420,  etc.  As  to  their  unlimited  variety, 
see  ante,  §  111.     For  a  classification  of  equitable  remedies  sec  post,  §  1316. 


§  175  EQUITY  JUIUSPKUDEXCE.  G2 

§173.  Description  and  Test. — The  Concurrent  Jurisdiction,  as 
.stated  in  a  former  section  in  this  chapter,  embraces  all  those  civil 
cases  in  which  the  primary  right,  estate,  or  interest  of  the  com- 
plaining- party  sought  to  be  maintained,  enforced,  or  redressed  is 
one  which  is  created  and  is  cognizable  by  the  law,  and  in  which 
the  remedy  conferred  is  also  of  the  same  Ivind  as  that  administered, 
under  the  like  circumstances,  by  the  courts  of  law.^  .  .  .  The 
incompleteness  or  insufficiency  of  the  legal  remedy  upon  which  the 
concurrent  equitable  jurisdiction  rests  must  therefore  necessarily 
exist  in  the  modes  of  legal  procedure,  its  arbitrary  and  unbending 
rules,  its  want  of  elasticity  and  adaptability  to  circumstances,  and 
all  the  other  incidents  of  legal  methods  which  often  prevent  them 
from  doing  full  justice  to  the  litigant  parties. 

§  175.  The  Remedies  Legal. —  .  .  .  All  the  general  kinds  of 
remedy,  or  final  relief,  which  are  possible  by  means  of  legal  actions 
are  defined  with  absolute  certainty  and  fixedness.  Omitting  the 
particular  species  of  relief  obtainable  through  certain  writs  or 
.special  judicial  proceedings,  such  as  "mandamus,"  the  writ  of 
"prohibition,"  "habeas  corpus,"  the  law,  through  its  actions,  is 
confined  to  three  general  kinds  of  remedies — the  obtaining  posses- 
sion of  specific  tracts  of  land,  the  obtaining  possession  of  specific 
chattels,  and  the  recovery  of  ascertained  sums  of  inoney,  either 
debts  or  damages,  by  way  of  compensation.  In  every  case,  there- 
fore, properly  belonging  to  the  concurrent  jurisdiction  of  equit}^ 
the  final  and  substantial  relief  granted  by  the  decree  must  be  either 
an  award  of  possession  of  some  piece  of  land,  or  a  delivery  of 
])ossession  of  some  specific  chattel,  including  written  in.struments, 
such  as  deeds,  Avhich  with  this  respect  are  regarded  as  chattels, 
nr  a  pecuniary  recovery.^     "While  the  equitable  relief  must  be  of 

^  See  ante,   §    1 30. 

'  In  respect  to  no  other  topic  connected  ^\ith  equity  has  there  been  such  con- 
fusion of  treatment,  and  such  utter  lack  of  an\-  consistent  principle,  among  text- 
writers,  as- in  relation  to  the  matter  of  the  concurrent  jurisdiction.  As  ilhistra- 
tions:  Because  some  purely  lej;al  ric^hts  and  legal  causes  of  action  may  be  oc- 
casioned by  fraud,  accident,  or  mistake,  many  text-wiiters  have  therefore  placed 
fraud,  accident,  and  mistake,  and  everythino-  pertaininfj  to  them,  wholly  within 
the  concurrent  jurisdiction  of  equity.  Althouiih  the  primary  right  arising  there- 
from may  be  entirely  equitable,  and  although  the  remedy  conferred  may  be 
one  which  can  be  administered  only  by  a  court  of  equity,  such  as  refoiTnation, 
cancellation,  injunction,  etc..  ihey  are  all.  riglit  and  remedy,  treated  as  though 
belonging  to  this  branch  of  equitv  jurisdiction.  In  the  same  manner,  the  sub- 
ject of  partnership,  as  an  entirety,  is  referred  to  this  jurisdiction,  although  the 
interest  to  be  maintained  and  the  remedy  to  be  obtained  are  wholly  equitable 
in  their  nature.  The?*e  inslances  a7e  examples  merely  of  a  mode  of  treatment 
which  fails  to  draw  any  triie  line  of  distinction  between  the  two  great  depart- 
ments of  the  equity  jurisdiction. 


63  TJiK    COXCrilKKNT    JUJUSDICTION,  ^  17G 

the  same  general  nature  as  that  ui-anted  by  the  law  courts,  it  need 
not  be  of  the  same  external  t'oiiii,  nor  be  accompanied  by  the  same 
incidents.  Thus  ...  in  most  instances  of  pecuniary  recoveries 
in  equity,  the  money  is  regarded  and  treated  as  a  fund,  which  is 
either  awarded  to  the  single  claimant,  or  is  distributed  among  the 
several  claimants  in  the  shares  to  Avhich  they  are  adjudged  to  be 
entitled.  The  cases  are  very  few  indeed  in  which  a  court  of  equity, 
in  the  same  manner  and  form  as  a  court  of  laAv,  decrees  the  pay- 
ment to  the  plaintiff  of  a  sum  of  money  merehj  as  a  debt  or  as 
compensatory  damages.-     ,     .     . 

§  176.  General  Principle — No  Concurrent  Jurisdiction. — The 
principle  may  be  stated  in  its  broadest  generality,  that  in  cases 
Avhere  the  primary  right,  interest,  or  estate  to  be  maintained,  pro- 
tected, or  redressed  is  a  legal  one.  and  a  court  of  law  can  do  as 
complete  justice  to  the  matter  in  controversy,  both  with  respect 
to  the  relief  granted  and  to  the  modes  of  procedure  by  ^Vhich  such 
relief  is  conferred,  as  could  be  .done  by  a  court  of  equity,  equity 
will  not  interfere  even  with  those  peculiar  remedies  which  are  ad- 
ministered by  it  alone,  such  as  injunction,  cancellation,  and  the 
like,  much  less  with  those  remedies  which  are  administered  both 
by  it  and  by  the  law.  and  which  therefore  belong  to  its  concurrent 
jurisdiction.  This  principle,  hoAvever,  must  be  understood  as  re- 
ferring to  the  original  condition  of  law  and  equit}',  at  a  period 
Avhen  equity  was  establishing  its  jurisdiction,  and  before  the  reme- 
dial powers  of  the  law  courts  had  been  extended  by  statutes,  or 
enlarged  by  the  gradual  adoption  of  equitable  notions;  for,  as  will 
be  more  fully  shown  hereafter,  the  prcscd  power  of  the  law  courts 
to  grant  complete  relief  does  not,  in  general,  deprive  equity  of  a 
jurisdiction  which  it  had  formerly  acquired,  because  the  laAV  courts 
then  possessed  no  such  power. ^  But  in  order  that  the  general  prin- 
ciple may  apply,  the  sufficiency  and  completeness  of  the  legal  remedy 
must  be  certain;  if  it  is  doubtful,  etiuity  may  take  cognizance.^ 
While  the  concurrent  jurisdiction  of  equity  thus  depends  upon  the 
inadequacy  of  legal  remedies  for  the  particular  eontroversy,  or  for 
the  class  of  cases  of  which  the  particular  controversy  is  an  instance, 
it  is  impossible  to  define,  by  any  single  formula,  Avhat  is  the  ade- 
quacy or  sutYiciency  of  the  remedy  at  law  Avhieh  shall  prevent  an 
exercise  of  the  equitable  jurisdiction. 

'  Rpp  post.  §§  270-281. 

-  For  an  instanro  where  •^iieh  relief  was  required,  and  a  mere  personal  judg- 
ment was  rendered,  see  Baily  v.  Hornthal,  l;i4  N.  Y.  648,  6(51,  61  Am.  St.  Rep. 
645.  G52,  49  JSJ.  E.  56.  For  the  important  difference  between  the  equitable  and 
leyal    procedures   witli    rf^))e(t    to   tlic    form    of   judiiinciils.    sec   ante.    SS    ll.'i-ll."). 

-Kins:  V.  l^aldwin.  2  Jnlms.  Cli.  r).)4.   17  dolins.  ;}.S4,  S  Am.  Dec.  415. 


§  178  EQUITY  JUKISPKUDEXCE.  G-t 

§  177.  Illustrations. — In  all  cases  wljere  the  plaintiff  holds  or 
claims  to  have  a  purely  legal  estate  in  land,  and  simply  seeks  to 
have  his  title  adjudicated  upon/  or  to  recover  possession,  against 
an  adverse  claimant  who  also  relies  upon  an  alleged  legal  title,  there 
being  no  equitable  feature  of  fraud,  mistake,  or  otherwise,  calling 
for  the  application  of  eciuitable  doctrines  or  the  granting  of  peculiar 
equitable  reliefs,  the  remedy  at  law  is  adequate,  and  the  concurrent 
jurisdiction  of  equity  does  not  exist.  A  suit  in  equity,  under  its 
concurrent  jurisdiction,  will  not  be  maintained  to  take  the  place 
of  the  action  of  ejectment,  and  to  try  adverse  claims  and  titles  to 
land  which  are  wholly  legal,  and  to  award  the  relief  of  a  recovery 
of  possession.-  While  this  general  doctrine  is  well  established,  still, 
in  addition  to  the  particular  cases  of  disputed  boundaries,  parti- 
tion, and  assignment  of  dower,  over  which  the  concurrent  jurisdic- 
tion may  extend,  and  in  which  a  remedy  strictly  legal  may  be 
granted,  a  court  of  equity  will  also  confer  the  final  relief  of  pos- 
session, and  will  decree  a  defendant  to  deliver  up  possession  of 
land  to  the  owner,  when  such  relief  is  incidental  to  the  main  object 
of  the  suit,  and  the  action  is  brought  for  some  object  otherwise 
within  the  equity  jurisdiction.-''  In  like  manner,  the  concurrent 
jurisdiction  does  not  embrace  suits  by  the  legal  owner  to  recover 
possession  of  a  chattel,  except  in  the  few  eases  where  the  chattel 
has  a  certain  special,  extraordinary,  and  unique  value  impossible 
to  be  compensated  for  by  damages,  nor  suits  merely  to  determine 
the  legal  title  to  chattels  between  adverse  claimants,  where  the 
claim  of  neither  party  involves  or  depends  upon  any  e(iuitable  in- 
terest or  feature.  In  all  ordinary  controversies  concerning  the  legal 
ownership  or  possession  of  chattels,  the  common-law  actions  of 
replevin  or  trover  furnish  a  complete  and  adequate  remedy.* 

§  178.  Cases  in  which  the  remedy  is  a  mere  recovery  of  money 
do  not  ordinarily  come  under  the  concurrent  jurisdiction.  Where 
the  primary  right  of  the  plaintiff  is  purely  legal,  arising  either  from 
the  non-performance  of  a  contract  or  from  a  tort,  and  the  money 
is  sought  to  be  recovered  as  a  debt  or  as  damages,  and  the  right 
of  action  is  not  dependent  upon  or  connected  with  any  equitable 
feature  or  incident,  such  as  fraud,  mistake,  accident,  trust,  account- 

^  It  must  be  borne  in  mind  th.at  casps  whore  relief  is  sou<rht  to  remove  cloud  on 
title  belong  to  the  exclusive  jurisdiction. 

^  Lewis  V.  Cocks,  23  Wall,  446,  Sh.  17:  Jordan  v.  Phillii)s  &  Crew  Co.,  126 
Ala.  561,  29  8outh.  831;  Rogers  v.  Rogers,  17  R.  I.  623.  24  Atl.  46. 

=>  Woodswortli  V.  Tanner.  94  Mo.    124.  7   S.   W.   104. 

STones  v.  MacKenzie,  122  Fed.  390;  Chambers  v.  Chambers,  98  Ala.  454,  13 
«outh.  674. 


65  THE  coxcl'i;i;i;nt  juiusdictiox.  §  179 

inL>',  or  contribution,  and  the  like,  full  and  certain  remedies  are  af- 
forded by  actions  at  law,  and  e(iuity  has  no  jurisdiction;  these  are 
cases  especially  within  the  sole  cognizance  of  the  law.^  This  prop- 
osition does  not  state  the  entire  doctrine.  Even  when  the  cause  of 
action,  based  upon  a  legal  right,  does  involve  or  present,  or  is  con- 
nected with,  some  particular  feature  or  incident  of  the  same  kind 
as  those  over  which  the  concurrent  jurisdiction  ordinarily  extends, 
such  as  fraud,  accounting,  and  the  like,  still,  if  the  legal  remedy 
by  action  and  pecuniary  judgment  for  debt  or  damages  would  be 
complete,  sufficient,  and  certain — that  is,  would  do  full  justice  to 
the  litigant  parties — in  the  particular  case,  the  concurrent  juris- 
diction of  equity  does  not  extend  to  such  case.-  For  example,  when- 
ever an  action  at  law  will  furnish  an  adequate  remedy,  equity  does 
not  assume  jurisdiction  because  an  accounting  is  demanded  or 
needed ;"  nor  because  the  case  involves  or  arises  from  fraud  \*  nor 
because  a  contribution  is  sought  from  persons  jointly  indebted/"' 

§  179.  Cognizance  First  Taken  by  a  Law  Court. — In  further 
limitation  upon  the  power  of  equity  to  interfere  wiiere  the  primary 
rights,  interests,  or  estates  are  legal,  the  doctrine  is  well  settled 
that  when  the  jurisdictions  of  law  and  of  equity  are  concurrent, 
the  one  which  first  takes  actual  cognizance  of  any  particular  con- 
troversy ordinarily  becomes  thereby  exclusive.  If,  therefore,  the 
subject-matter  or  primary  right  or  interest,  although  legal,  is  one 
of  a  class  Avhich  may  come  within  the  concurrent  jurisdiction  of 
equity,  and  an  action  at  law  has  already  been  commenced,  a  court 
of  equity  will  not,  unless  some  definite  and  sufficient  ground  of 
equitable  interference  exists,  entertain  a  suit  over  the  same  subject- 
matter  even  for  the  purpose  of  granting  reliefs  peculiar  to  itself, 
such  as  cancellation,  injunction,  and  much  less  to  grant  the  same 
kind  of  relief  which  can  be  obtained  b.y  the  judgment  at  law.  The 
grovuids  which  will  ordinarily  prevent  the  application  of  this  doc- 
trine, and  will  permit  the  exercise  of  the  equitable  jurisdiction  in 

'  Finnegan  v.  Fernandina,  L5  Fla.  379,  21  Am.  Rep.  292;  Marsh  v.  Kaye,  16S 
X.  Y.  196,  61  N.  E.  177,  2  Ames  Eq.  Jur.  89;  Bernz  v.  Marcus  Sayre  Co.,  52 
X.  J.  Eq.  275,  30  Atl.  21.  . 

-Campbell  v.  Rust,  85  Va.  653,  8  S.  E.  664:  Gaines  v.  Miller,  111  U.  S. 
395.  4  Sup.  Ct.  426;   Boyce  v.  Allen.   105  Iowa  249.  74  X.  W.  948. 

^Tewett  V.  Bowman,  29  X.  J.  Eq.  174;  Dargin  v.  Hewlitt,  115  Ala.  510.  22 
South  128;     Galusha  v.  Wendt,  114  Iowa  597,  87  X.  W.  512. 

*Bay  City  Bridge  Co.  v.  Van  Etten,  36  INIich.  210;  Pohemus  v.  TTolhm.l 
Trust  Co.,  59  N.  J.  Eq.  93,  45  Atl.  534;  Buzard  v.  Houston.  119  U.  S.  347.  7  Su,.. 
Ct.  249,  H.  &  B.  268,  3  keener  487. 

'■  Stone  V.  Stone,  32  Conn.  142 ;  Myers  v.  Sierra  Val.  Stock  &  Agric.  Assn., 
122   Val.   669,   55   Pac.   689. 


§  180  EQUJTV   JLRISPKUDEXCE.  (56 

such  eases,  are  the  existence  of  some  distinctively  equitable  feature 
of  the  controversy  which  cannot  be  determined  by  a  court  of  law, 
oi-  some  fraudulent  or  otherwise  irregular  incidents  of  the  legal 
proceedings  sufficient  to  warrant  their  being  enjoined,  or  the  neces- 
sity of  a  discovery,  either  of  which  grounds  would  render  the  legal 
remedy  inadequate.  This  rule  results  in  part,  in  the  United  States, 
from  the  provisions'  of  the  national  and  state  constitutions  secur- 
ing the  right  to  a  jury  trial  which  belongs  especially  to  the  ma- 
chinery of  legal  actions.^  In  cases  which  are  brought  to  procure 
some  distinctively  equitable  remedy,  and  which  therefore  belong 
to  the  exclusive  jurisdiction,  the  doctrine  must  be  regarded  as 
merely  regulating  the  exercise  of  that  jurisdiction,  but  in  the  cases 
which  belong  to  the  conpnrrent  jurisdiction  it  must  be  regarded  as 
one  of  the  elements  which  determine  the  very  existence  of  such 
jurisdiction. 

§  180.  General  Principle — Concurrent  Jurisdiction  Exists. —  .  .  . 
The  doctrine,  in  its  most  general  and  comprehensive  form,  admits 
the  existence  of  the  concurrent  jurisdiction  over  all  cases  in  which 
the  remed}^  at  law  is  not  certain,  complete,  and  sufficient.  The  fact 
that  there  is  a  legal  remedy  is  not  the  criterion;  that  legal  remedy^ 
l)oth  in  I'espect  to  its  final  relief  and  its  modes  of  obtaining  the 
relief,  must  be  as  efficient  as  the  remedy  which  equitj^  would  con- 
fer under  the  same  circumstances,  or  else  the  concurrent  jurisdic- 
tion attaches.  In  applying  this  doctrine,  the  ordinary  instances  of 
the  concurrent  jurisdiction  in  which  the  final  relief  consists  in  the 
obtaining  possession  of  a  specific  parcel  of  land,  substantially  the 
same  as  would  be  conferred  by  a  court  of  law,  are  fcAV  and  well 
defined;  namely,  the  partition  of  land,  the  assignment  of  dower, 
and  the  settlement  of  disputed  boundaries.  But  in  addition  to 
these  three  classes,  the  concurrent  jurisdiction  embraces  other 
cases  involving  the  ownership  or  enjoyment  of  lands,  and  a  relief 
which  is  substantially  the  recovery  of  possession  will  be  conferred, 
where  the  facts  and  circumstances  are  special,  and  the  remedy  at 
law  would  be  doubtful,  incomplete,  or  insufficient.  The  same  is  true 
Avith  respect. to  pecuniary  relief.  While  the  various  instances  in 
which  equity  Avill  decree  a  recovery  of  money  as  the  final  remedy, 
and  which  constitute  a  most  important  part  (tf  its  concurrent  juris- 
diction,  are  well  ascertained  and  form  a  settled  and  certain  remedial 
system,  they  by  no  means  exhaust  that  jurisdiction;  it  extends  to 
and  embraces  all  cases  o?  legal  primary  rights  and  causes  of  action 
for  Avhich  the  laAV  furbishes  no  certain,  adequate,  and  complete 
I'emedy. 

'Crand  Chute  v.  \Yinei:ar.  1.5  AA'nll.  373.  2  Anips  Kq.  Jiir.  llf!;  Tji(<uran"p  Co. 
V.  Bailey,  13  Wall.  616,  3  Keener  474:  Sweeney  v.  Williams,  36  X.  .T.  Eq.  627. 
1  Sooft  141  ;     Xewma*  v.  romniercial  Xat.  F.ank.  156  111.  530,  41  X.  E.  1.56. 


^r .  J.  n. 

67  THE    COXCrKRKXT    .IIKISDICTION.  ^  §185 

§  181.     Effect  of  a  Partial  Jurisdiction.' 

§  182.  Effect  of  Jurisdiction  Subsequently  Acquired  by  fie  Law 
Courts.^ 

§183.    Effect  of  the  Reformed  Procedure.^ 

§  184.  The  Principal  Matters  Within  the  Concurrent  Jurisdic- 
tion.—  .  ,  .  The  ordinary  and  well-settled  instances  .  .  .  will 
be  arrano-ed  into  groups  aeeording  to  the  nature  of  the  final  relief 
obtained,  which  is.  of  course,  osfffntiallii  the  same  as  that  conferred 
at  laAv  Tin(]er  like  cii-cnnistanees,  namely:  1.  Those  in  which  the 
relief  is  substantially  the  recovery  of  possession,  or  the  establish- 
ment of  a  right  to  the  i)ossession,  of  land;  2.  Those  in  which  the 
relief  is  the  recovery  of  possession  or  delivery  of  specific  chattels 
or  AVi'itten  instruments:  and  3.  Those  in  which  the  relief  is  pecun- 
iar.v,  the  recovery  of  or  obtaining  of  money,     .     .     . 

§  185.  1.  Tender  the  first  of  these  classes,  where  the  final  relief 
is  substantially  a  recovery  or  obtaining  possession  of  specific  por- 
tions of  land,  the  concurrent  jurisdiction  is  clearly  established,  and 
its  exercise  is  a  matter  of  ordinary  occurrence,  in  suits  for  the  par- 
tition of  land  among  joint  owners  or  OAvners  in  common  -^  in  suits 
for  the  assignment  or  admeasurement  of  dower-.-  and  in  suits  for 
the  adjustment  of  disputed  boundaries,'  where  some  eciuitable  in- 
cident or  feature  is  involved,  and  the  dispute  is  not  wholly  con- 
fined to  an  assertion  of  mere  conflicting  legal  titles  or  possessoi-y 
rights.  2.  Under  the  second  class,  Avhere  the  final  relief  is  sub- 
stantially a  recovery  of  chattels,  the  jurisdiction  embraces  suits 
to  compel  the  restoration  or  delivery  of  possession  of  specific  chat- 
tels of  such  a  peculiar,  uncommon,  or  unique  character  that  they 
cannot  ])e  replaced  by  means  of  money,  and  are  not  susceptible 
of  being  compensated  for  by  any  practicable  or  certain  measure  of 
damages,  and  in  respect  of  which  the  legal  actions  of  replevin, 
detinue,  or  trover  do  not  furnish  a  complete  remedy.*  This  pai-- 
ticular  exercise  of  the  jurisdiction  extends,  for  like  reason,  to  suits: 
to  compel  the  delivery  of  deeds,  muniments  of  title,  and  other  writ- 

'  On  this  subject  see  post.  §§  231-242.  On  discoveiy  as  a  source  or  occasion 
of  jurisdiction,  see  §§  22.3-230.     On  nniltiplicity  of  suits,  see  §  250,  note. 

^  See  post,   S§   276-281,  where  this  subject  is   fully  discvissed.  ■ 

'On  tliis  subject  see  post,  §§  3.53-358. 

^  A'^AV  V.  Fairfax,  17  Ves.  533,  2  Lead.  Cas.  Eq.  805-010.  See  jmst.  §S  138()- 
1.300. 

-Sec  post.  S§  1380-1383. 

'■'New  York  &  T.  Land  Co.  v.  Culf,  ^^■.  'I".  &  P.  P..  Co..  TOO  Fed.  830.  41  C.  C. 
A.  87.     .See  post,  §§  1384,  1385. 

Mousey  v.  Pusey,  1  Vern.  273.  1  Lead.  Cns.  Kq.  1100-1117.  II.  &  B.  573,  1  Scott 
8G.  Sh.  278;  Cushman  v.  Thayer.etc,  Co.,  70  N.  Y.  305,  32  Am.  Rep.  315.  See 
post,  s   '402  etc. 


{  186  EQUITY  JURISPRUDENCE.  68 

ten  instruments,  the  value  of  which  cannot,  with  any  reasonable 
certainty,  be  estimated  in  money.^  The  equitable  jurisdiction  in 
these  cases  really  rests  upon  the  fact  that  the  only  relief  which 
the  plaintiff  can  have  is  the  possession  of  the  identical  thing,  and 
this  remedy  cannot  with  crriainti/  be  obtained  by  any  common-law 
action.  In  the  same  class  nuist  be  placed  suits,  which  are  maintain- 
able, under  some  special  circumstances,  for  the  partition  of  chattels, 
analog'ous  to  those  for  the  partition  of  land.^ 

§  186.  3.  Under  the  third  general  class,  where  the  final  relief 
is  pecuniary,  or  recovery  or  award  of  money  in  some  form  or  for 
some  purpose  as  the  result  of  the  preliminary  determination  or 
adjustment  of  primary  or  remedial  rights  which  are  legal,  the  well- 
settled  instances  of  the  concurrent  jurisdiction  are  many  in  num- 
ber and  varied  in  kind.  The  following  are  the  most  important 
and  the  ones  most  frequently  met  in  actual  practice :  In  the  con- 
tract of  suretyship,  and  the  relations  growing  out  of  it  between 
sureties  themselves,  sureties  and  their  principal  and  the  creditor, 
the  equitable  jurisdiction  includes  suits  for  exoneration  and  for 
contribution,  in  the  decision  of  which  the  principle  of  subrogation 
and  marshaling  of  securities,  and  other  equitable  doctrines  neces- 
sary to  a  complete  adjustment  of  all  claims  and  liabilities,  maj^  be 
invoked  and  enforced.^  In  the  contract  of  partnership  and  the 
relations  arising  therefrom,  the  jurisdiction  embraces  suits  for  con- 
tribution, accounting,  and  pecuniary  recovery  necessary  for  the 
settlement  of  all  claims  which  may  exist  between  the  partners 
themselves,  or  between  the  partnership  and  its  members  and  the 
firm  and  individual  creditors,  all  claims  in  fact  for  which  the  law 
by  its  actions  gives  no  adequate  remedy.-  The  principle  of  con- 
tribution," and  the  pecuniary  recoveries  depending  upon  it,  have, 
in  the  exercise  of  the  concurrent  jurisdiction,  a  very  wide  applica- 
tion, and  are  enforced  under  a  great  variety  of  circumstances.  The 
most  important,  comprehensive,  and  multiform  remedy  of  the  con- 
current jurisdiction  which  results  in  pecuniary  recoveries  is  that 
of  accounting.*     The  variety  of  its  uses  and  possible  applications 

'Bindseil  v.  Smith,  61  X.  J.  Eq.  654,  47  Atl.  456;  Kelly  v.  Lehigh  Min. 
&  Mfg.  Co.,  .98  Va.  405,  81  Am.  St.  Rep.  736,  36  S.  E.  511.     See  post,  §  1402,  etc. 

« Robinson  v.  Dickey,  143  Ind.  205,  52  Am.  St.  Rep.  417,  42  N.  E.  670.  Sec 
post,  §§    1391,   1392. 

^Bering  v.  Earl  of  Winchelsea,  1  Cox  318,  1  Lead.  Cas.  Eq.  120-188,  1  Scott 
367,  Sh.  94;  Aldrich  v.  Cooper,  8  Ves.  308,  2  Lead.  Cas.  Eq.  228.  See  post,  §§ 
1417-1419. 

^'Baily  v.  Honithal,  154  N.  Y.  648,  661,  61  Am.  St.  Rep.  645,  6.52,  49  N.  E.  56. 

■  Rindgc  V.  J^akev,  57  N.  Y.  209.  15  Am.  Rep.  475,  H.  &  B.  578. 

Mnhab.  of  Cranford  Twp.  v.  Waiters,  61  N.  J.  Eq.  248,  48  Atl.  316;  Black 
V.    Boyd,  .50  Ohio  St.  46,  33  N.  E.  207.     See  post,  §§  1420,  1421. 


Of)  THE  cu.\cri;i;!:.\'i'  .iriMMJicrioN.  §  188 

is  praetieally  nnlimited;  it  can  be  adapted  to  all  circumstances 
and  relations  in  which  an  account  is  necessary  for  the  settlement 
of  claims  and  liabilitit'S.  and  for  the  doin<i'  full  justice  to  the  litip,'ant 
l)arties.  Among  the  most  connnon  instances  in  Avhich  this  remedy 
is  employed  by  courts  of  e(|uity  are  the  ascertaining  and  settlement 
of  claims  and  liabilities  between  i)rincii)a!s  and  agents,  and  between 
all  other  persons  standing  in  fiduciary  relations  to  each  other;  the 
ascertaining  and  adjustment  of  the  resi)ective  amounts  of  persons 
entitled  to  particii)ate  in  the  same  fund,  and  of  the  respective  shares 
of  persons  subjected  to  some  common  liability,  the  ascertaining  and 
adjustment  of  the  shares  of  persons  liable  to  contribute  to  a  gen- 
eral average;  the  ascertaining  and  adjustment  of  the  shares  of 
persons  liable  to  contribute  with  res})ect  to  charges  of  any  kind 
upon  land  or  other  property ;  the  appropriation  of  pa.yments ;  the 
apportionment  of  rents;  and  numerous  other  instances  where  a 
number  of  persons  are  differently  interested  in  the  same  subject- 
matter,  or  are  differentlj^  liable  with  respect  to  some  common  object. 

§  187.  In  the  same  genei-al  class  of  pecuniary  reliefs  belonging 
to  the  concurrent  jurisdiction,  and  united  together  by  a  tie  of  close 
analogy,  are  suits  for  the  recovery  of  legacies,^  suits  for  the  re- 
covery or  enforcement  of  donations  causa  mortis,-  and  the  various 
suits,  involving  some  equitable  feature  or  incident,  brought  in  con- 
nection with  or  in  aid  of  the  administration  of  the  estates  of  de- 
ceased persons.^  Although  the  administration  of  decedents'  es- 
tates has,  in  this  country,  been  committed  to  courts  of  probate, 
and  the  former  jurisdiction  of  equity  to  entertain  "administration 
bills"  for  the  complete  and  final  settlement  of  such  estates  does 
not  practically  even  if  nominally  exist,  still  there  are  many  special 
cases  belonging  to  the  concurrent  jurisdiction  in  which  suits  may 
be  brought  to  obtain  pecuniary  recoveries  against  executors  and 
administrators,  in  the  process  of  and  connected  Avith  their  work  of 
administering  and  settlement. 

§  188.  In  another  extensive  class  of  suits  brought  to  obtain 
pecuniary  relief,  and  strictly  belonging  to  the  concurrent  jurisdic- 
tion, the  remedial  right  is  occasioned  by  or  in  some  manner  con- 
j[iect#d  with  accident,  mistake,  or  fraud.  These  .three  matters  play 
an  important  part  throughout  the  entire  equity  jurisprudence ;  and 
all  cases  involving  or  in  any  manner  depending  upon  or  growing 
out  of  accident,  or  mistake,  or  fraud,  have  sometimes  been  described 
as  belonging  to  the  concurrent  jurisdiction,  since  courts  of  law  may 
also  take  cognizance  of  some  caiLses  of  action  or  defenses  arising 

'  See  post,  §§  1127-1145. 
^See  post,  §§  114G-11.51. 
•^See  post,  §§  1152-11.54. 


§  ISU  EQUITY   JLiasi'KLDEXCJ:'.  TO 

from  the  same  sources.  In  the  classification  which  I  have  adopted, 
and  which  is  far  more  accurate  and  consistent,  all  those  cases  in 
which  the  strictly  equitable  remedies  of  reformation,  re-execution, 
cancellation,  and  the  tike,  are  granted  on  account  of  mistake,  ac- 
cident, or  fraud  necessarily  come  within  the  exclusive  jurisdiction. 
As  these  purely  equitable  kinds  of  relief  are  generally  requisite, 
in  order  to  do  complete  justice  to  the  parties,  where  the  remedial 
right  arises  from  or  is  affected  by  mistake,  accident,  or  fraud,  it 
follows  that  the  cases  depending  thereon,  Avhich  properly  belong 
to  the  concurrent  jurisdiction,  are  comparatively  few.  In  truth, 
mistake,  and  especially  fraud,  instead  of  being  particular  source 
of  the  concurrent  jurisdiction,  are  facts  which  affect  the  causes 
of  action  and  reliefs,  the  pi-imary  and  remedial  rights  constituting 
the  whole  of  equity  jurisprudence. 

§  189.  There  are  some  other  instances  in  which  the  concurrent 
jurisdiction  is  exercised,  because  the  legal  remedy  is  inadequate,  or 
because,  through  the  imperfection  of  the  procedure  at  law,  a  legal 
remedy  would  be  wholly  insufficient,  if  not  impracticable.  Among 
these  the  most  important  are  suits  to  recover  rent  under  some  spe- 
cial circumstances;  suits  to  procure  or  compel  a  set-off'  which  is 
not  admissible  or  possible  under  the  practice  at  law;  suits  by  one 
firm  against  another,  when  both  firms  have  a  common  partner,  and 
other  analogous  suits  which  the  technical  legal  rules,  as  to  parties, 
prevented  from  being  entertained  by  courts  of  law;  and  under 
peculiar  circumstances,  recoveries  of  damages  by  way  of  compen- 
sation in  addition  to,  or  even  in  place  of,  other  equitable  relief. 


SECTION  lY. 

THE  AUXILIARY  .)1'R18D1CT10N. 


§   190.  Tlie  auxiliary  jurisdictiDii  defined. 
§§    191-209.  Of   (iiscovciy. 

§   191.  Definition  -and  kinds   of  discovery. 
5?   192.  Origin  of^  in  English  and  in  Roman  Law. 
§§   193,194.  Efl'ect   of   modern   legislation;     liow   far   discovery   proper  has   been 
abolished  by  statutes. 
§   195.  General  doctrine;    when  discovery  will  or  will  not  be  enforced. 
§§   196,  197.  1.  What  judicial  proceedings,  in  what  courts,  will  be  auled  by  dis- 
covery in  equity. 
§§   198-200.   11.    Tlie    parties:     their   situation    and    relations    to    each    other,    in 
order  that  a  discovery  may  be  granted. 
§   198.   The  plaintiff. 
§   199.  The  defendant. 


71  'j'lij;  AixiLiAiiY  .inasDici'ioN.  §  190 

§  200.  A  hoiia  fide  ]nii(li.>s(>r. 
§S  201-207.  11  J.     'Ilu'     nature.     sul)j('fl-iiiattcr,     and     ohjccts    of    the    discovery 
itself:      of    what     the    ])laintitl'    may    compel    discovery,    and     the 
defendant  mvist  make  discovery. 
§  201.  General  doctrine;    of  what  facts  discovery  may  be  compelled. 
§  202.  Of  what  kinds  of  facts  discovery  will  not  be  compelled. 
§   20.">.  \\'hat  is  priviled<jed  from  discovery. 

J)  204.  The  manner  in  which  the  defendant   nuist  make  discovery. 
^§  205-207.  Production   and   inspection   of  ilocuments. 

§  208.  1\'.    When,    how    far,    and    for   whom    may    tlie   answer    in    the   dis- 
covery suit  be  used  as  evidence. 
§  209.  How  far  the  foregoing  rules  have  been  altered  by  statute. 
§S  210-21.').  Of  the  examination   of  witnesses. 

S  210.  Tliis  branch  of  the  jvirisdiction  described. 
^§   211,212.    I.  Suit  to  perpetuate  testimony. 

§   212.  Statutory   modes   substituted. 
§§  213-215.  11.    Suits    to    take    testimony    of    witnesses    de    bene    esse,    an!    i  .' 
witnesses   in  a  foreign   country. 
§  21.1.  Statutory  modes  substituted. 

§  190.  Definition. — The  auxiliary  jurisdiction  of  equity  belonu.s 
entirely  to  the  procedure  by  which  rights  are  enforced  and  remedies 
are  obtained,  and  is  not  in  an^^  manner  concerned  with  the  relirfy 
themselves  which  are  granted,  except  so  far  as  reliefs  must  always 
be  indirectly  afit'ected  by  the  procedure.  Its  object,  scope,  and  func- 
tions are  wholly  confined  to  the  procuring  of  evidence;  and  it  coi- 
sists  of  special  judicial  methods  by  which,  under  certain  partieul;;;' 
cireumstauices,  the  evidence  needed  in  pending  or  anticipated  h'.'.- 
gations  may  be  obtained.  It  is  divided  into  two  main  branches:  11; 
first  ccnitains  the  modes  by  which  the  parties  themselves  are  con- 
pel  led  to  disclose  facts  and  to  produce  documents,  and  thus  to  fur- 
nish the  evidence  needed  by  their  adversaries:  while  the  second 
contains  the  modes  by  which  evidence  of  witnesses  generally  is 
procured  and  preserved,  under  particular  circumstances,  for  which 
the  common  law  made  no  provision.  The  rules  of  the  ancient  com- 
mon law  concerning  the  competency  of  witnesses  were  exceedingly 
arbitrary,  and  would  often  work  great  injustice,  unless  their  de- 
fects had  been  supplied  by  the  equitable  jurisdiction.  In  the  com- 
mon-law courts,  prior  to  the  modern  statutory  legislation,  a  party 
could  not  be  examined  as  a  witness,  nor  forced  to  make  admissions 
in  his  pleadings,  in  behalf  of  his  adversary:  nor  was  there  any 
means  in  the  common-law  procedure  of  compelling  a  party  to  pro- 
duce, or  submit  for  inspection,  or  furnish  copies  of  any  documents 
or  books  which  might  be  in  his  possession  or  under  his  control, 
however  important  they  might  be  to  the  other  party's  cause  of  ac- 
tion  or  defense.^     It   was  to   supply  this   grievous   defect   in   the 

'r,   Black.  Com.  .S81,  .SS2 :    ('(mi.  Dig.,  tit.  Chancery,  3,  B;  .Teremy's  Eq.  Jur. 
2.'):"):     ]    Spenco's   Eq.    Jur.    077. 


§  191  EQUITY   JUKISPRUDEXCE.  72 

ancient  common-law  methods  that  equity  established  the  first  branch 
of  its  auxiliary  jurisdiction,  called  discovery.-  In  like  manner  the 
ancient  common  law  only  permitted  the  examination  of  witnesses 
at  the  very  trial  of  a  cause,  and  its  courts  had  no  power  to  take 
testimony  upon  commission  in  anticipation  of  the  trial,  and  much 
less  in  anticipation  of  the  bringing  of  an  action.^  This  defect  was 
supplied  by  equitj^  in  the  second  branch  of  its  auxiliary  jurisdic- 
tion, which  provides  for  and  regulates  the  examination  of  witnesses 
de  bene  esse,  and  the  perpetuation  of  evidence.*  I  shall  discuss 
these  two  branches  separately. 

DISCOVERY. 

§191.  Discovery  Defined. — In  one  most  important  sense  "dis- 
covery" is  not  peculiar  to  and  does  not  belong  to  the  auxiliary 
jurisdiction.  Every  suit  in  equity  brought  to  obtain  relief  is  or 
may  be  most  truly  a  suit  for  discoverj^;  for  the  complainant  may 
always,  and  generally  does,  by  the  allegations  and  interrogatories 
of  his  bill,  call  upon  and  force  the  defendant  to  disclose  by  his 
answer  under  oath  facts  and  circumstances  within  his  knowledge 
in  support  of  the  plaintiff's  contention;  and  the  plaintiff  may  per- 
haps go  to  the  hearing,  relying  largel}^,  and  sometimes  wholly,  upon 
the  evidence  thus  furnished  by  the  compulsory  admissions  of  the 
defendant's  answer.  .  ,  .  But  this  is  not  the  discovery  now 
under  consideration.^  Discovery  proper  is,  in  its  essential  concep- 
tion, merely  an  instrument  of  procedure,  unaccompanied  by  any 

Mbid. 

"  3  Black.  Com.  .383 ;    Jeremy^s  Eq.  Jnr.  270. 

^Jeremy's  Eq.  Jur.  255,  271,  273;  1  fSpente"s  Eq.  Jur.  G81. 

^  The  distinction  here  pointed  out  should  be  most  carefully  observed,  or  else 
the  whole  subject  will  become  confvised  and  uncertain.  Unfortunately  the  de- 
cisions, especially  the  American,  while  speaking  of  "discovery,"  have  not  always 
been  careful  to  distinguish  between  the  "discovery"  which  is  a  constant  incident 
to  fhe  obtaining  of  relief  in  every  equity  suit,  and  the  "discovery"  w^hich  is  a 
branch  of  the  auxiliary  jurisdiction,  obtained  in  a  separate  suit  without  any 
relief.  Rules  and  modes  applicable  alone  to  the  latter  have  sometimes  been 
spoken  of  as  belonging  to  the  former,  and  vice  versa.  But  iiiles  hereinafter 
stated,  concerning  the  suhject  matter  of  the  discovery,  the  materialty  of  the  facts 
disclosed  to  the  plaintift's  case,  what  disclosui'es  cannot  be  compelled,  privileged 
communications,  the  production  of  documents,  etc.,  are  generally  applicable  to 
the  discovery  sought  by  the  plaintiff  in  a  suit  for  relief,  as  well  as  the  discover^' 
sought  in  a  separate  "suit  for  discovery"  alone  t  many  of  the  decisions  cited 
to  illustrate  these  rules  were  rendered  in  suits  for  relief.  The  same  is  true  un- 
der the  new  practice  now  prevailing  in  England  and  in  many  of  our  states,  by 
which  interrogatories  filed  by  either  party  to  a  pending  suit  have  been  substi- 
tuted in  place  of  the  discoveiy  by  means  of  the  bill  and  answer  in  the  same  suit, 
or  by  means  of  a  bill  and  answer  in  a  separate  "discovery  suit." 


73  THE    AlXILlAin'    .intlSUICTION.  §  TJ:] 

direct  relief,  but  in  aid  of  relief  sought  by  the  party  in  some  other 
judicial  controversy.  The  ^iuit  for  discovery,  properly  so  called, 
is  a  bill  filed  for  the  sole  purpose  of  compelling  the  defendant  to 
answer  its  allegations  and  interrogatories,  and  thereby  to  disclose 
facts  within  his  own  knowledge,  information,  or  belief,  or  to  dis- 
close and  produce  documents,  books,  and  other  things  within  his 
possession,  custody,  or  control,  and  asking  no  relief  in  the  suit 
except  it  may  be  a  temporary  stay  of  the  proceedings  in  anothei- 
court  to  which  the  discovery  relates.  As  soon,  therefore,  as  thi- 
defendant  in  such  suit  has  put  in  his  ansAver  containing  a  full  dis- 
covery of  all  the  matters  and  things  which  he  is  obliged,  according 
to  the  principles  and  doctrines  of  equity  on  the  subject,  to  dis- 
close, the  object  of  the  suit  has  been  accomplished,  and  the  suit 
itself  is  ended;  nothing  remains  to  be  done  but  to  use  this  answer 
as  evidence  in  the  judicial  proceeding  to  whicli  this  discovery  was 
collateral.'-'  .  .  .  It  is  not,  however,  essential  to  a  bill  of  dis- 
covery that  it  should  be  the  only  means  which  the  complainant 
therein  has  of  procuring  evidence  in  support  of  his  collateral  cause 
of  action  or  defense;  that  is,  it  is  not  necessary  that  the  complain- 
ant should  otherwise  be  destitute  of  proof  or  of  the  means  of  ob- 
taining it.  The  bill  for  a  discovery  is  proper,  either  when  the 
complainant  therein  has  no  other  proof  than  that  which  he  ex- 
pects to  elicit  by  its  means  from  the  defendant,  or  when  he  needs 
the  matters  thus  disclosed  to  supplement  and  aid  other  evidence 
which  he  furnishes:''  or  indeed  whenever  the  court  can  fairly  sup- 
pose that  facts  and  circumstances  discovered  by  means  of  the  bill 
can  lie  in  any  way  material  to  the  complainant  therein  in  main- 
taining his  cause  of  action  or  defense  in  a  suit.* 

§  192.  Its  Origin. — The  practice  of  the  court  of  chancery  to 
**prolpe  the  conscience"  of  the  defendant,  and  to  compel  him  to 
make  full  disclosure  of  matters  within  his  knowledge  in  all  snits 
brought  for  relief,  was  coeval  with  the  establishment  of  the  court 
itself,  and  was  one  of  the  principal  means  by  which  it  rapidly  ex- 
tended its  general  jurisdiction.  The  auxiliary  jurisdiction  to  compel 
discovery  alone  without  relief,  in  aid  of  proceedings  at  law,  was 
somewhat  later  in  its  origin,  but  still  was  exercised  at  an  early 
day.   ... 

§  193.  Effect  of  Modem  Statutes. — ]\rodern  legislation  has  greatly 
interfered  with  the  practical  exercise  of  the  auxiliary  jurisdiction 

=  Hurricane  Tel.  Co.  v.  Mohler.  .'il  \V.  V:i.  1.  41   S.  K.  421. 

'Metier  v.  Metier.   19  X.  J.  Eq.  457. 

♦Peek-  V.  Ashby.  12  Met.  478:  Robson  v.  Doyle,  101  111.  566.  61  N.  E.  435; 
Reynolds  v.  hnrjiess  Sulphite  Fibre  Co..  71  X.  H.  332,  51  Atl,  1075,  93  Am.  St. 
Rep.  535.  57  L.  R.  A.  940,  1  Scott  45. 


^   1!'3  EQUITY   JULI.SI'HrDENCE.  7t 

for  a  discovery,  by  introducing  sjinpler  and  more  efficacious  meth- 
ods in  its  stead,  and  by  thus  rendering  a  resort  to  it  unnecessary 
and  even  inexpedient.  The  important  question  is,  whether  the  suit 
for  a  discovery  alone,  without  relief,  has  been  directly-  or  indirectly 
abolished  or  superseded  by  the  recent  statutes.  English  statutes, 
passed  not  many  years  since,  gave  full  power  and  authority  to  any 
party  to  an  action  or  proceeding  at  law  to  examine  his  opponent 
under  oath  as  a  witness;^  and  full  power  to  the  common-laAv  courts 
to  compel  any  party  to  an  action  to  produce  documents.-  These 
permissive  statutes,  it  was  held,  did  not  interfere  with  the  equity 
jurisdiction  for  discovery  in  aid  of  a  cause  of  action  or  defense 
nt  law."*  More  recent  legislation  of  Parliament  has  gone  much  fur- 
ther. The  supreme  court  judicature  act  of  1873,  which  consolidated 
all  the  superior  courts  into  one  tribunal  having  jurisdiction  of  all 
possible  matters,  except  those  purely  ecclesiastical,  which  abolished 
the  distinction  between  legal  and  equitable  actions,  and  permitted 
all  legal  and  equitable  causes  of  action,  defenses,  and  remedies  to 
be  united  in  one  proceeding,  and  Avhich  provided  for  the  examina- 
tion of  either  party  upon  interrogatories  at  the  instance  of  his 
adversary,  and  for  the  production  and  inspection  of  documents 
by  either  party  at  the  requirement  of  the  other,  in  any  action,  has 
superseded  and  practically  put  an  end  to,  even  if  not  directly  ab- 
rogated, the  suit  for  a  discovery  as  a  branch  of  the  auxiliary 
jurisdiction  of  equity.*  Tender  this  new  method  of  obtaining  dis- 
covery from  the  opposite  party  in  any  kind  of  action,  and  of  com- 
pelling the  production  of  documents  b}^  means  of  interrogatories 
filed  during  the  pendency  of  the  action  by  either  the  plaintiff  or 
the  defendant,  it  is  held  that  all  the  doctrines  and  rules  concerning 
the    subject-matter    of    discovery    and    concerning   the    documents 

'  14  &  15  Vict.,  chap.  99,  §  2. 

M7  &  18  Vict.,  chap.  125,  §S  51,  52. 

■""  Lovell  V.  Galloway,  17  Beav.  1.  Tliis  conclusion  is  reached  by  applying  the 
yoneral  doctrine  that  equity,  having  once  acquired  jurisdiction  over  a  given 
subject-matter,  cannot  lose  that  jurisdiction  by  the  mere  fact  that  the  common— 
hvw  courts  have  also  become  invested  with  the  same  powers. 

'  (Supreme  Court  of  Judicature  Act  of  1873,  36  &  37  Vict.,  chap.  66  Schedule. 
Rules  of  Procedure,  rules  25-27.  These  rules  provide  that  in  any  action  either 
]iarty  may  obtain  discovery  from  the  other  on  oath  upon  interrogatories;  and 
tliat  tlie  court  may  order  any  party  to  discover,  produce,  and  ]iermit  inspection 
of  any  documents,  etc.,  in  his  possession  or  under  his  control,  etc.  In  other 
words,  everything  which  could  be  done  by  a  bill  for  discovery  can  be  accomplished 
in  a  more  simple,  direct,  and  speedy  mode  prescribed  by  the  statute.  The  es- 
sential principles  of  this  statute  and  of  the  system  which  it  established  for 
England  are,  as  1  have  "before  stated,  identical  with  the  principles  and  methods 
of  the  reformed  procediu'e  prevailing  in  more  than  half  of  the  American  com- 
monwealths.    See  Attorney-General  v.  Gaskill,  L.   R.  20  Ch.  Div.  519. 


To  THE    AlXlLIAliY    JllilsDiCTIOX.  i^  193 

whoso  nroduutjon  can  be  compelled,  Avhich  had  been  established 
by  i-onrts  of  equity,  are  still  in  force,  and  control  the  same  matters 
ill  the  new  procedure.'^  Similar  modes  of  procuring  evidence  from 
the  opposite  party  by  means  of  interrogatories  have  been  adopted 
by  statute  in  several  of  our  states,  although  in  none  of  them  does 
the  matter  seem  to  be  so  carefully  regulated  and  so  efficacious  as 
in  England.  Passing  to  the  legislation  of  this  country,  the  reformed 
procedure,  which  was  first  enacted  in  the  Code  of  Civil  Procedure 
of  New  York  in  1848,  and  has  now  extended  to  more  than  half  the 
states  and  territories  of  this  Union,  and  which  is  identical  in  its 
fundamental  principles,  doctrines,  and  methods  with  the  English 
supreme  court  of  judicature  act,  has  in  like  manner  superseded  and 
prartiralhf,  at  least,  destroyed  the  equitable  suit  for  discovery  with- 
out any  other  relief,  wherever  the  system  prevails.  In  some  of  these 
states  the  suit  for  "discovery,"  properly  so  called,  is  expressly  abol- 
ished by  the  statute ;  and  in  all  of  them  it  is  utterly  inconsistent  with 
both  the  fundamental  theory  and  with  the  particular  doctrines, 
rules,  and  methods  of  the  reformed  procedure.  In  the  other  common- 
wealths, where  the  common-law  and  the  equity  jurisdictions  are 
still  preserved  distinct  from  each  other,  whether  possessed  by  the 
same  court,  or  as  in  a  very  few  states,  by  separate  tribunals,  the 
statutes  permit  the  parties  to  all  civil  actions  and  proceedings,  both 
Jit  law  and  in  equity,  to  testify  in  their  own  behalf,  and  to  be  exam- 
ined as  witnesses,  in  the  ordinary  manner,  on  behalf  of  their  adver- 
saries; and  have  also  provided  summary  and  simple  modes  for  com- 
pelling the  disclosure  and  production  and  inspection,  bj'  the  par- 
ties to  any  action,  of  documents,  books,  and  the  like  material,  to 
the  opposite  party,  for  maintaining  his  cause  of  action  or  defense. 
Notwithstanding  these  great  changes,  made  by  statutes,  which  seem 
to  remove  the  very  foundation  for  any  interposition  by  equity,  it 
has  generally  been  held  that  the  legislature  has  not  abridged  nor 
aft'ected  the  auxiliary  equitable  jurisdiction  to  entertain  suits  for 
mere  discovery  of  evidence  and  production  of  documents,  and  that 
such  equitable  jurisdiction  still  exists,  where  not  expressly  abolished 
by  the  statutes.**  This  conclusion,  however,  is  not  universal.  In 
some  cases  it  has  been  held  that  the  legislation,  by  abolishing  all 
the  grounds  upon  which  the  suit  for  a  discovery  was  based,  has  nec- 
essarily abrogated  the  jurisdiction  itself."     This  abridgment  of  the 

Mloffman  v.  Postell,  L.  R.  4  Cli.  t)73;  Attorney-General  v.  Gaskill,  L.  R.  20 
Ch.   Div.   519. 

MVood  V.  Hudson,  96  Ala.  469,  11  South.  530;  Continental  Nat.  Bk.  v.  Heil- 
man,  66  Fed.  184;  Lancey  v.  Randlett,  80  Me.  169,  13  Atl.  686,  6  Am.  St.  Rep. 
169,  1  Scott  409;  Reynolds  v.  Burgess  Sulphite  Fibre  Co.,  71  N.  H.  332.  346,  51 
Atl.  1075,  93  Am.  St.  Rep.  535,  550,  57  L.  R.  A.  949,  1  Scott  45. 

'Heath  v.  Erie  R.  R.  9  Blatch.  316:  Turnbull  v.  Crick,  63  .Alinn.  91.  65  X.  W. 
135  •,  Browii  V.  McDonald,  130  Fe^    «6L 


§  195  EQUITY   JURISPKUDEN'CE.  TH 

technical  "discovery,"  it  should  be  carefully  remembered,  does  not 
extend  to  the  discovery  or  compelling  defendants  to  make  admis- 
sions or  disclosures  by  means  of  the  pleadings,  in  suits  brought  for 
relief.^  In  some  of  the  states,  hoAvever,  which  still  retain  the  an- 
cient common-law  and  equitable  jurisdictions,  the  obtaining  evi- 
dence by  means  of  interrogatories  filed  in  the  action  by  either  party, 
instead  of  by  means  of  answers  to  allegations  and  questions  con- 
tained in  the  bill  or  cross-bill, — substantially  in  accordance  with  the 
present  English  procedure, — has  been  provided  for  by  recent  stat- 
ute ;  and  this  statutory  change  may  have  abrogated  the  mode  of 
discovery  as  an  incident  and  part  of  the  pleadings  in  suits  for  re- 
lief, even  though  it  may  not  have  abolished  the  suit  for  a  discovery 
alone  without  relief. 

§  194.  It  follows  from  the  foregoing  statements  that  the  suit  for 
a  discovery,  as  a  branch  of  the  auxiliary  jurisdiction,  is  now  con- 
fined to  a  portion  only  of  the  states  and  territories;  and  even  in  those 
commonwealths  a  resort  to  it  is  quite  infrequent.  For  this  reason, 
an  extensive  and  minute  discussion  of  the  rules  which  govern  it 
seems  to  be  unnecessary.  On  the  other  hand,  the  principles  and  doc- 
trines relating  to  discovery,  which  have  been  settled  by  courts  of 
equity,  and  which  determine  what  facts  parties  can  be  compelled  to 
disclose,  and  what  documents  to  produce,  and  under  what  circum- 
stances the  disclosiire  or  production  can  be  obtained,  will  still  con- 
tinue to  be  recognized  by  the  courts,  and  to  regulate  their  action  in 
enforcing  the  examination  of  parties  and  the  production  of  writ- 
ings by  means  of  the  more  summary  statutory  proceedings.^  The 
abolition  or  discontinuance  of  the  technical  "discovery"  has  not 
abrogated  these  principles  and  doctrines,  nor  dispensed  with  their 
statement,  at  least  in  a  brief  and  condensed  form. 

§  195.  General  Doctrines  when  Discovery  will  be  Enforced.^As 
this  auxiliary  jurisdiction  was  contrived  to  supply  a  great  defect  in 
the  ancient  common-law  methods,  which  was  a  constant  source  of 
wrong  to  suitors  at  laAv,  and  as  it  was  intended  to  promote  right 
and  justice,  discovery  was,  from  the  outset,  favored  by  courts  of 
equity;  and  as  a  general  doctrine,  it  will  always  be  enforced,  unless 
some  recognized  and  well-established  objection  exists  in  the  par- 
ticular case  to  prevent  or  to  limit  its  operation.  This  affirmative 
proposition  is  so  generally  true  that  the  discussion  of  the  subject 
mainly  consists  in  stating  and  explaining  the  objections  which  have 
been  established,  and  Avhich  alone  can  avail  to  hinder  the  exercise 
of  the  jurisdiction.     While  thus  made  effective,  the  jurisdiction  is 

^Le  May  v.  Baxter,  11  Wash.  649.  40  Pac.  122:  Smythe  v.  Henry,  41  Fed.  705, 
715. 

^Arnold   v.    Pa\\-tuxet   Water  Co..    18   R.    I.    180,  20   All.   55.    10  L.   R.   A.   fi02. 


;7  THE    ALXILIAKY    JlinsDlCTIOX.  >5  1".)'. 

also  carefully  guarded,  so  as  not  to  infriiifi'e  upon  the  defendant's 
ri<rhts.  Its  object  is  to  promote  justice  by  eliciting  facts  material 
lO  the  plaintiff's  contention;  not  to  compel  the  defendant  to  disclosi' 
matters  injurious  to  himself  or  prejudicial  to  his  own  case.  While 
the  plaintiff'  is  sufficiently  aided  in  establishing  his  own  side  of  the 
controversy,   the   defendant   is   also    carefully   guarded. 

§  196.  I.  What  Judicial  Proceedings,  in  what  Courts,  will  be 
Aided  by  Discovery  in  Equity. — A  suit  for  discovery  will  be  main- 
tained in  aid  of  another  cause  depending  in  a  court  of  equity  upon 
a  cross-bill  tiled  for  that  purpose  by  the  defendant  therein;^  and  es- 
pecially in  aid  of  proceedings  in  any  common-law  court  of  general 
jurisdiction  or  other  public  tribunal  of  the  same  country  which  is 
or  was  by  its  original  modes  of  procedure  unable  to  compel  the 
needed  disclosure.-  .  .  .  Discovery  has  sometimes  been  granted, 
both  in  England  and  in  this  country,  in  aid  of  a  controversy  pend- 
ing in  a  tribunal  of  a  foreign  country.' 

§  197,  The  cause  of  action  or  the  defense  which  can  be  aided  by 
a  suit  for  discovery  must  furthermore  be  wholly  civil  in  its  nature. 
The  auxiliary  jurisdiction  of  discovery  will  only  be  exercised  on 
behalf  of  a  contention,  action,  or  defense  entirely  civil ;  and  it  will 
therefore  withhold  its  aid  from  criminal  prosecutions,  actions  penal 
in  their  nature,  and  controversies  involving  moral  turpitude,  or 
arising  from  acts  clearly  immoral,  even  though  brought  for  the 
purpose  of  recovering  pecuniary  compensation.^  .  .  .  The  ac- 
tion in  aid  of  which  the  discovery  is  sought  may  be  pending;  but 
this  is  not  necessary.  It  is  sufficient  if  the  plaintiff  in  the  bill  for 
a  discovery  shows  that  he  has  a  right  to  maintain  or  defend  an  ac- 
tion in  another  court,  and  that  he  is  about  to  sue  or  is  liable  to  be 
sued  therein,  although  no  action  is  yet  commenced;  a  discovery  may 
be  needed  to  determine  the  proper  parties,  or  to  properly  frame  the 
allegations  of  his  pleading.-  But  after  a  judgment  or  verdict  in  the 
action  at  law,  it  is  too  late  to  bring  a  suit  for  discovery  alone.'' 

'  Prioleau  v.  Ignited  States,  L.  R.  2  Eq.  050. 

=  ShotwoU  V.  Smith,  20  X.  J.  Eq.  79. 

■Mitchell  V.  Smith,  1  Paige  287,  Sh.  346;  Post  v.  Toledo  C.  &  St.  L.  R.  Co.,  144 
Mass.  .'UK  11  N.  E.  540,  59  Am.  Rep.  86,  Sh.  344:  contra,  now,  in  England: 
JDreytns  v.  Peruvian  (^uano  Co..  L.  R.  41  Ch.  Div.  151. 

'Black  V.  Black,  26  N.  ,T.  Eq.  431;  Reynolds  v.  Burgess  Sulphite  Fibre  Co.. 
71  N.  H.  332,  341-.345.  51  Atl.  1075,  57  L.  R.  A.  949,  93  Am.  St.  Rep.  535,  544- 
549,  1  Scott  45  (discovery  may  be  had  in  aid  of  action  for  personal  tort — 
negligence — not  involving  moral   turpitiule). 

=  Post  v.  Toledo,  C.  &  St.  L.  R.  Co.,  144  :Mass.  341,  11  N.  E.  540.  59  Am.  Rep. 
86  (discovery  of  names  and  addresses  of  stockholders  of  a  cor))oration)  : 
Reynolds  v.  Burgess  Sul]ihite  Fibre  Co..  71  X.  H.  332,  341,  51  Atl.  1075,  93  Am. 
St.  Rep.  535.  5t4.  57   1..  R.  A.  !)49.  1    Scott  45. 

^  Paulkner's  Adm'r.  v.   llarwood.  f!  Rand.   125. 


^  1!)!'  EQUITY  JURISPRUDENCE.  78 

§  198.  II.  The  Parties,  Their  Situation  and  Relations  to  Each 
Other,  in  Order  that  a  Discovery  may  be  Granted — The  Plaintiff. — 

^  Either  the  plaintiff  or  the  defendant  in  the  pending  or  anticipated 
action  at  law  may  file  a  bill  for  a  discovery.  Since  by  the  rules  of 
equity  pleading,  independent  of  modern  statutes,  only  the  com- 
plainant can  compel  a  disclosure  on  oath  from  his  adversary,  if  the 
defendant  in  an  ecjuity  suit  needs  a  discovery  he  must  file  a  cross- 
bill, and  thus  become  a  plaintiff  for  that  purpose.^  As  the  first 
requisite,  the  plaintiff'  in  the  equity  suit  for  a  discovery  must  show 
that  he  has  a  title  or  interest  in  the  subject-matter  to  which  the  pro- 
posed discovery  relates,  such  an  interest  as  he  can  maintain  or  de- 
fend in  a  proceeding  pending  or  to  be  brought  in  another  tribunal, 
and  must  thus  show  that  he  is  entitled  to  the  discovery.  A  mere 
stranger  is  never  allowed  to  maintain  a  suit  for  discovery  concern- 
ing a  subject-matter  in  which  he  has  no  interest  enforceable  by  a 
judicial  proceeding,  or  concerning  the  title  or  estate  of  a  tliird 
person.-'  In  addition  to  exhibiting  a  title  or  interest  in  the  subject- 
matter,  the  allegations  of  the  plaintiff' 's  bill  must  show  that  a  dis- 
covery would  not  be  useless.  The  plaintiff'  in  the  discovery  suit 
must  show  by  his  averments,  at  least  in  a  prima  facie  manner,  that 
if  he  is  the  plaintiff  in  the  action  at  law  he  has  a  good  cause  of  ac- 
tion, and  if  he  is  the  defendant,  he  has  a  good  defense  thereto. 
While  it  is  not  necessary  that  his  right  of  action  or  of  defense  at 
law  should  be  beyond  dispute,  still,  if  the  bill  should  negative  the 
existence  of  any  .such  right,  the  court  of  equity  would,  of  course, 
refuse  a  discovery  which  would  then  be  useless."  If  the  result  of 
the  controversy  at  law  is  doubtful,  even  when  the  defendant  in  the 
suit  for  a  discovery  has  denied  the  plaintiff's  title,  or  has  set  up 
matter  which  if  true  would  operate  as  a  complete  defense,  the  court 
of  equity  will,  in  general,  grant  the  discovery,  and  leave  the  issue 
to  be  tried  and  finally  determined  by  the  court  of  law.'* 

§  199.  The  Defendant, — I  proceed  to  consider,  in  the  next  place, 
the  requisites  concerning  the  defendant  in  a  suit  for  a  discovery. 
No  discovery  can  be  compelled  from  an  incompetent  defendant;  as, 
for  example,  an  infant,  or  a  lunatic  without  committee.^     The  gen- 

^  Talmage  v.  Pell,  0  Paige  410:  As  to  "interrogatoiies"  in  aid  of  "counter- 
claim" in  modern  Enijlish  practice,  see  HofVman  v.  Postili.  L.  R.  4  Ch.  67:i. 

-Camp  V.  Ward,  G9  Vt.  2S6,  60  Am.  St.  Rep.  929,  .37  Atl.  747;  Slack  v.  Black, 
109  ivlass.  49r). 

=  Slack  V.  Black,  109  Mass.  49G;  Hurricane  Tel.  Co.  v.  Mohler,  51  W.  Va.  1, 
41  S.  E.  421    (bill  allowed)  ;    Everson  v.  Equitable  Life  Assur.  Co.,  G8  Fed.  258. 

^Primmer  v.  Patton,  32  111.  528. 

^Mickletlnvaite  v.  Atkinson,  1  ('oil.  C.  C.  173,  Joinder  as  defendants  in  tlie 
same  suit  for  discovery,  of  defendants  in  separate  actions  at  law,  is  irregular; 
Broadbent  v.  State,  7  .Md.  413. 


79  THE    AUXILIARY    JURISDICTION.  >i  -^^^l 

eral  rule  is  well  settled,  and  admits  of  only  one  or  two  special  ex- 
ceptions, which  are  necessary  to  prevent  a  failure  of  justice,  that  no 
person  can  properly  be  made  a  defendant  in  the  suit  for  a  discov- 
ery, or  compelled  as  such  to  disclose  facts  within  his  knowledge, 
unless  he  has  an  interest  in  the  subject-matte i'  of  the  controversy 
in  aid  of  which  the  discovery  is  asked.-  Thus,  as  an  illustration  of 
this  rule,  arbitrators  cannot,  in  general,  be  joined  as  defendants  to  a 
bill  of  discovery  and  compelled  to  disclose  the  grounds  of  their 
award."  but  if  they  are  charged  with  actual  misconduct,  fraud,  or 
corruption,  they  are  obliged  to  answer  with  respect  to  such  allega- 
tions.'* As  another  illustration  of  the  rule,  mere  witnesses  cannot  be 
joined  as  defendants  and  obliged  to  answer;  nor  can  a  mere  agent 
be  made  a  party  for  purpose  of  obtaining  a  discovery  from  him/' 
This  application  of  the  rule  is  not  without  exception.  Where  an 
agent,  as,  for  example,  an  attorney,  has  assisted  his  principal  in  the 
accomplishment  of  actual  fraud,  he  may  be  made  a  co-defendant  and 
compelled  to  disclose  the  facts."  The  most  important  exception  is 
in  case  of  suits  against  corporations.  Where  it  is  desired  to  obtain 
discovery  from  a  corporation  in  a  bill  filed  against  it  for  that  pur- 
pose, it  is  firmly  settled  by  the  authority  of  decided  cases  that  a 
secretary  or  some  other  officer  may  and  must  be  joined  as  a  co- 
defendant,  from  whom  the  discovery  may  be  obtained  by  his  answer 
nnder  oath.  This  exception  is  based  wholly  upon  considerations  of 
■expediency,  since  a  corporation  cannot  make  an  answer  on  oath, 
nor  be  liable  for  perjury.'  For  the  same  reason,  the  rule  has  been 
•extended  by  modern  cases  to  suits  by  and  cross-bills  against  nations 
or  states  which  are  not  monarchical,  such  as  the  United  States  of 
America  and  other  republics.^ 

§  201.  III.  The  Nature,  Subject-Matter,  and  Objects  of  the  Dis- 
covery Itself;  that  is,  the  Matters  Concerning  Which  the  Plaintiff 
may  Inquire  and  Compel  a  Discovery,  and  the  Defendant  must  An- 
swer and  Make  Discovery. — The  fundamental  rule  on  this  subject 
is,  that  the  plaintiff's  right  to  a  discovery  does  not  extend  to  all 
facts  which  may  be  material  to  the  issue,  but  is  confined  to  facts 
Avhich  are  material  to  his  oicn  title  or  cause  of  action;  it  does  not  en- 
able him  to  pry  into  the  defendant's  case,  or  find  out  the  evidence 

-Dineley  v.  Dinoley,  2  Atk.  304.     Sec  In  re  Barned's  Bank,  L.  R.   '2  Ch.  .350. 

=  Stewart  v.  East  India  Co.,  2  Vern.  380. 

*  Duninier  v.  Corp'n  of  Chippenham,  14  Ves.  252. 

'Detroit  Copper  and  Brass  RoUinsj  Mills  Co.  v.  Ledwidge,  ](,2  111.  305,  44  X. 
E.    751. 

"  Diunmer  v.  Corp'n  of  Cliippenhain,  14  Ves.  252,  254. 

^VVych  V.  Meal,  3  P.  Wins.,  311,  312,  per  Talljot,  L.  C;  Colgate  v.  Compagnie 
Prancaise  du  Telegraphe,  23  Fed.  S2. 

U'nited  States  v.  Wagner,  L.  R.  2  Ch.  582;  L,  R.  3  Eq.  724. 


§  202  EQUITY   JUIUSPKUDEXCE.  SO 

l)y  which  that  ease  will  be  supported.  The  plaintiff  is  entitled  to 
a  disclosure  of  the  defendant's  title,  and  to  know  what  his  defense 
is,  but  not  to  a  statement  of  the  evidence  upon  which  the  defendant 
relies  to  establish  it.^  This  rule,  however,  must  be  understood  with 
the  limitation  that  the  plaintiff  may  compel  the  discovery  of  all 
facts  material  to  his  own  cause  of  action,  even  though  the  defend- 
Mut's  evidence  may  thereby  be  incidentally  disclosed,-  as,  for  exam- 
ple, where  the  establishment  of  the  plaintiff' 's  title  or  cause  of  action 
involves  the  proof  of  fraud ;  and  the  defendant,  besides  discovering 
what  the  case  is  on  which  he  relies,  can  be  compelled  to  disclose  all 
facts  which  would,  by  way  of  evidence,  tend  to  uiipeacJi  or  dcsfroi/ 
it,  unless  otherwise  privileged,  .since  such  facts  are  material  evi- 
dence for  his  adversary,  but  is  not  bound  to  disclose  any  evidence 
by  which  he  intends  to  or  may  support  his  case,  for  such  evidence 
cannot  be  material  to  the  plaintiff'.'^  As  a  direct  inference  of  this 
general  rule,  all  the  facts  which  the  plaintiff  seeks  to  discover  must 
be  material :  the  defendant  is  never  compelled  to  disclose  matters 
which  are  ini material  as  evidence  to  support  the  plaintiff"'s  conten- 
tion ;  he  is  never  obliged  to  answer  vexatious  or  impertinent  ciues- 
tions,   asked  from  curiosity  or  malice.'' 

§  202.  As  a  general  proposition,  the  discovery,  in  order  to  be 
}  panted,  must  be  in  aid  of  some  object  which  a  court  of  equity  can 
regard  with  approval,  or  at  least  without  disapproval, — some  ob- 
ject which  is  not  opposed  to  good  morals  or  to  the  principles  of 
public  policy  embodied  in  the  law.^  This  doctrine  is  the  foundation 
of  several  particular  rules  regulating  the  practice  of  discovery.  The 
first  of  these  particular  applications  of  the  doctrine  is,  that  a  defend- 
ant in  the  discovery  suit,  or  in  a  suit  for  relief  as  well  as  discovery, 
is  never  compelled  to  disclose  facts  which  would  tend  to  criminate 
himself,  or  to  expose  him  to  criminal  punishment  or  prosecution,  or 
to  pains,  penalties,  fines,  or  forfeitures.  He  may  refuse  an  answer, 
not  only  to  the  main,  directly  criminatiiig  facts,  but  to  every  inci- 
dental fact  which  might  form  a  link  in  the  chain  of  evidence  estab- 
lishing his  liability  to  punishment,  penalty',  or  forfeiture.'  This  re- 
striction upon  the  right  to  a  discovery  is  subject  to  several  limita- 

'  Sunset  Telephone  &  'J\  Co.  v.  City  of  Eureka,  122  Fed.  0(51 ;  Saccharin 
Corporation  v.  Cliemicals  &  Drugs  Co.,  (1900)  2  Ch.  556;  Benbow  v.  Low,  L.  R, 
16  Cli.   D.    03. 

-Dock  V.  Dock,  180  Pa.  St.  14,  .36  Atl.  411,  57  Am.  St.  Eep.  617. 

^Attorney  General  v.  Corporation  of  London,  2  Mae.  &  G.  247,  256.  257.  13 
Beav.  31.3;     Edison  Electric  Light  Co.  v.  U.  S.  Electric  Light  Co.,  45  Fed.  55.  5S. 

M\icl)nr(ls  v.  .laekson,   IS  Ves.  472:   Alexander  v.  Mortgage  Co.,  47  Fed.   131. 

^  Co,nsins  v.  Smith,   13  Ves.  542. 

-Lnited  States  v.  Saline  Bank,  1  Pet.  100;  Robson  v.  Doyle,  101  III.  566,  61 
N.   E.   435. 


81  Till-:    AUXILIARY    JIUISDICTION.  §204 

tions  and  exceptions  necessary  in  order  to  promote  the  ends  of  jus- 
tice. A  defendant  is  always  compelled  to  disclose  his  frauds  and 
fraudulent  practices,  when  such  evidence  is  material  to  the  plain- 
tiff's ease,  even  though  the  fraud  might  be  so  great  as  to  expose 
the  defendant  to  a  prosecution  for  conspiracy,  unless  perhaps  the 
indictment  was  actually  pending.-^  And  a  party  may  have  so  con- 
tracted that  he  has  thereby  bound  himself  to  make  discovery,  al- 
though it  might  subject  him  to  pecuniary  penalties.* 

§203.  Privileged  Communications.— Another  application  of  the 
general  doctrine  concerning  public  policy  is,  that  no  disclosure  will 
be  compelled  of  matters  a  knowledge  of  which  has  been  communi- 
cated or  obtained  through  or  by  means  of  certain  close  confidential 
relations,  which  are  carefully  guarded  and  protected  from  invasion 
or  interference  by  the  general  policy  of  the  law.  For  this  reason  a 
married  Avoman  cannot  be  compelled  to  disclose  facts  tending  to 
establish  any  liability  of  her  husband,  the  knowledge  of  which  was 
acquired  by  her  through  her  marital  relation.'  On  the  same  founda- 
tion of  principle  rests  the  important  rule  that  a  party  will  not  be 
compelled  to  disclose  the  legal  advice  given  him  by  his  attorney  or 
counsel,  nor  the  facts  stated  or  matters  communicated  between  him- 
self and  them  in  reference  to  the  pending  suit,  or  to  the  dispute 
which  has  resulted  in  the  present  litigation ;  nor,  on  the  other  hand, 
will  these  professional  advisers  be  compelled  or  permitted  to  dis- 
close the  mattere  which  they  have  learned  or  communicated  in  the 
same  manner.-  With  respect  to  the  nature  of  the  matter  passing 
between  the  client  and  his  attorney  or  counsel,  the  protection  is  not 
absolute  nor  universal.  The  privilege  from  disclosure  embraces 
those  matters  alone  "in  which  it  is  lawful  for  the  client  to  ask  and 
the  solicitor  to  give  professional  advice";  and  therefore  communi- 
cations by  which  fraud  is  contrived  or  arranged  between  a  lawyer 
and  client  are  wholly  excluded  from  the  privilege,  and  nnist  be  di- 
vulged.'' .  .  .  Upon  the  same  consideration  of  public  policy  con- 
trolling discovery,  the  rule  is  settled  that  governmental  officers, 
whether  civil  or  military,  are  not  compelled  to  disclose  matters  of 
state,  where  the  public  interests  might  be  harmed  by  such  a  dis- 
closure, at  the  suit  of  a  private  individual.^ 

§  204.     Manner  of  Making  Discovery. — Having  thus  ascertained 

^  Skinner  >!.  Judson.  8  Conn.  r)28,  21  Am.  Dec.  091 ;  Postlethwaite  v.  Rick- 
-T.an.  L.  R.   .3.5   Ch.   Div.   722. 

*C!reen  v.  Weaver,  1   Sim.  404. 

'  Cartwrisjlit  v.  Green,  8  Ver.  405.  408. 

-Bank  of  L'tiea  v.  Mersereau.  3  Jinrb.  Ch.  .528.  4!)  Am.  Dec.  189;  Lyoll  v. 
Kennedy,  L.  R.  0  App.  Cas.  81. 

='See  Unllivant  v.   Attorney-CU'neval.    [1901]    App.  Cas.   196. 

♦Smith  V.  Kast   India  Co.,  1   Piiill.  Ch.  50. 

6 


5^  ^.^08  EQUITY   JUIUSPRUDENCE.       .  82 

Avliat  matters  are  exempt  from  a  discovery,  and  of  what  a  discovery 
will  be  compelled,  it  remains  to  consider  certain  settled  rules  con- 
<?erning  the  manner  in  which  the  discovery  must  be  made  by  the  de- 
fendant. 1.  Assuming  that  the  matters  called  for  are  proper  sub- 
jects of  a  discovery;  that  they  belong  to  the  plaintiff's  case,  and  not 
to  the  defendant's;  that  they  are  not  privileged,  or  are  not  exempt 
within  the  operation  of  any  other  doctrine, — -then  the  defendant 
must  disclose  all  material  facts;  in  other  words,  if  he  answers  at  all, 
he  must  answer  fully.  The  court  will,  however,  in  the  exercise  ot 
its  discretion,  judge  of  the  materiality,  and  guard  him  against  op- 
pressive, vexatious,  or  impertinent  inquiries.^  2.  The  answers  of 
the  defendant  must  be  complete,  so  that  the  information  which  they 
give  will  be  of  substantial  use  to  the  plaintiff;'-  and  must  be  to  the 
best  of  the  defendant's  knowledge,  information,  and  belief.  A  de- 
fendant is  bound  to  obtain  information  from  all  means  reasonably 
within  his  power.  If  documents  are  ordered  to  be  produced,  it  is 
no  excuse  for  non-production  that  they  are  in  the  possession  of  a 
third  person,  or  even  that  a  third  person  has  a  lien  upon  or  an  in- 
terest in  them.''  But  if  documents  helong  wholly  or  in  part  to  a  third 
person,  not  a  party  to  the  suit,  their  production  will  not  be  com- 
pelled.* 3.  The  answers  must  be  distinct,  positive  in  their  state- 
ments, not  leaving  facts  to  be  inferred  argumentatively,  and  giving 
specific  replies  to  specific  questions;^  but  must  not  be  unnecessarily 
minute  and  prolix,  especially  in  setting  forth  accounts." 

§208.  IV.  When.  How  Far,  and  for  Whom  may  the  Answer  in 
the  Discovery  Suit  be  Used  as  Evidence. — If  the  suit  is  one  for  dis- 
covery alone,  without  relief,  in  aid  of  some  action  or  proceeding  in 
a  court  of  law,  and  the  answer  is  used  as  evidence  on  the  trial  of 
such  action,  its  use  is  entirely  governed  by  the  legal  rules  applicable 
to  such  species  of  testimony.  It  is,  in  fact,  the  admissions  of  one 
party  to  the  controversy,  proved  by  his  adversary,  differing  from 
ordinary  admissions  only  by  its  more  formal  and  elaborate  charac- 
ter. It  follows,  therefore,  that  if  the  party  obtaining  the  discovery 
reads  any  portion  of  the  answer  ii;  evidence,  the  whole  of  it  must 
be  read  on  the  demand  of  the  one  who  made  it.  so  that  the  jury  may 


i.Sholwell  V.  Stnible,  21"  N.  J.  Eq.  .31. 

"For  example,  when  accounts  are  called  for,  they  must  be  reasonaWy  made  out, 
and  not  simiily  the  bnoRs  throu^li  uiiicli  llic  itdiis  ;nc  scattered,  produced  for 
inspection;  White  v.  Williams,  S  X'cs.  in.*?.  See  Christian  v,  Tayloy,  11  Sim. 
401.  ■ 

^Glengall  v.   Frazer.  2  TIare  !)9;   Vale  v.  Oppert,  L.  R.   10  Ch.  340,  342. 

Mladley  v.  Mc  Dougall.  L.  R.  7  CJi.  312. 

'Tipping  V.  Clarke,  2  Hare  383,  389. 

'Norway  v.  Rove,  1  Mer.  340. 


83  THE  aixili.\i;y  JiifisDiCTiox.  >;"ill 

be  nossessed  of  all  liis  statonients  and  exjilanalion  or  qualification 
of  his  admissions.* 

EXAMINATIOX    OF    WITNESSES. 

§  210.  This  Jurisdiction  Described.— While  the  first  branch  of 
the  auxiliary  jurisdiction  deals  with  the  matter  of  obtaining  evi- 
dence from  the  parties  themselves,  the  second  branch  comprises  the 
methods  of  examining  witnesses  who  are  not  parties,  and  of  preserv- 
ing their  evidence  for  future  use  at  the  trial  of  actions  at  law,  or  at 
the  hearing  of  suits  in  ecjuity.  This  branch  of  the  auxiliary  juris- 
diction Avas  dou])tless  established  in  aid  of  proceedings  at  law,  al- 
though its  methods  may  also  be  used  in  suits  strictly  equitable. 
Where  a  right  now  exists,  which  is  likely  to  be  disputed  or  contested 
at  some  future  time,  but  no  action  can  yet  be  brought  for  the  pur- 
])ose  of  establishing  it,  and  there  is  danger  that  all  the  witnesses 
Avill  have  died,  and  the  evidence  by  which  alone  it  can  be  supported 
will  have  disappeared  before  that  time  arrives  at  Avhich  an  action 
can  be  brought,  the  common  law  furnished  no  means  for  taking  the 
testimony  of  the  witnesses  in  anticipation.  To  prevent  such  a  fail- 
ure of  justice,  the  auxiliary  jurisdiction  of  equity  contrived  the  suit 
for  perpetuating  the  testimony  of  Avitnesses  under  such  circum- 
stances. Again,  AA'here  a  suit  at  laAV  has  actually  been  commenced, 
but  has  not  reached  the  time  for  trial,  and  there  is  danger  lest  the 
evidence  of  certain  material  Avitnesses  should  be  lost,  from  their  ex- 
treme age,  or  from  their  being  sick,  or  from  their  being  about  to 
leave  the  country,  and  also  Avhere  in  such  a  suit  material  Avitnesses 
are  actually  in  a  foreign  country,  so  that  their  attendance  cannot  be 
compelled,  nor  their  testimony  taken  upon  deposition  by  any  modes 
which  the  common  laAV  had  furnished,  the  auxiliary  jurisdiction 
supplied  the  defect  by  means  of  a  suit  to  take  the  testimony  of  the 
AA'itnesses  de  bene  esse  in  the  one  case,  and  a  suit  to  take  the  testi- 
mony of  the  witnesses  in  foreign  countries  upon  a  commission  issued 
out  of  chancery  in  the  other  case.  As  these  three  equitable  proceed- 
ings Avere  very  cumbrous,  and  as  they  have  been  practically  super- 
seded. eA'en  if  not  expressly  abolished,  both  in  England  and  in  most 
of  the  states,  by  more  simple,  direct,  and  efficacious  statutory  meth- 
ods, a  A'ery  brief  description  of  them  AA^ill  suffice. 

§  211.  I.  Suit  to  Perpetuate  Testimony. — A  suit  to  perpetuate 
testimony  could  only  be  maintained  where  the  plaintiff  had  at  the 
time  some  right  A^ested  or  contingent,  to  which  the  testimony  Avould 
relate;  but  such  right  could  not  fJirn  be  investigated,  established,  or 
defenrled  by  an  action  at  laAV.     As  the  foundation  of  the  suit,  the 

'Pant  V.  Miller,  17  Gratt.   187. 


§  211  EQUITY  JURlsriUDEXCE.  8-1 

plaintiff  in  it,  not  yet  being'  in  possession  of  the  property  in  ques- 
tion, might  have  a  future  interest,  to  take  effect  only  upon  the  hap- 
pening of  some  future  and  perhaps  contingent  event;  or  he  mi<iht 
have  an  immediate  present  interest,  being  in  possession  of  the  prop- 
erty, and  his  possession  not  yet  actually  disturbed,  but  threatened 
with  disturbance  or  contest,  by  the  defendant,  at  some  future  time ; 
in  either  of  which  cases  he  could  immediately  bring  no  action  at  law 
to  maintain  or  defend  his  right.^  As  to  the  nature  of  the  plaintiff' 's 
interest,  it  might  be  in  real  or  in  personal  property,  or  in  mere  per- 
sonal demands,  and  might  be  such  that  the  testimony  sought  would 
be  used  in  support  of  a  cause  of  action  or  of  a  defense  at  law.  But 
as  the  laAv  stood  independent  of  statute,  the  plaintiff  must  have  an 
interest  recognized  and  maintainable  by  the  law,  although  it  might 
be  very  small,  remote,  and  contingent.  Therefore  if  the  plaintiff' 
has  only  a  possibility  or  an  expectancy,  no  matter  how  probable  and 
actually  valuable,  he  could  not  maintain  the  suit;  as  in  case  of  an 
heir  at  law  during  the  life  of  his  ancestor.'-  In  England  the  right 
of  the  plaintiff  to  maintain  the  proceeding  with  respect  to  the  na- 
ture of  his  interest  has  been  enlarged  by  statute;  which  embraces 
those  who  have  mere  possibilities,  as  well  as  those  who  have  actual 
interests. '"^  If  the  right,  interest,  or  claim  could  possiblj^  be  made  the 
subject  of  an  immediate  judicial  investigation  in  an  action  brought 
bj^  the  party  who  commences  a  suit  to  perpetuate  testimou}",  such 
suit  would  for  that  reason  be  dismissed;*  but  if  the  party  cannot 
possibly  bring  the  matter  before  a  court  so  that  his  right  or  claim 
may  be  adjudicated  upon  at  once,  the  equity  suit  to  perpetuate  the 
testimony  can  be  maintained.  The  reason  given  by  the  eases  is,  that 
the  only  evidence  in  support  of  the  plaintiff's  rights  might  be  lost 
by  the  death  of  his  witnesses;  and  the  adverse  party  might  delay  to 
move  in  the  matter  for  the  very  purpose  of  obtaining  the  advantage 
resulting  fi-om  such  an  event.^  The  mode  of  examining  the  wit- 
nesses is  by  deposition  similar  to  that  pursued  in  other  equity  suits. 
The  cause  does  not  proceed  any  further  than  the  examination  of  the 
witnesses;  the  suit  is  then  really  at  an  end.     The  only  further  step 

'Angell  V.  Aiigell,  1  Sim.  &  St.  83,  2  Ames  Eq.  -Tur.  168;  Duke  of  Dorset  v. 
Cirdler,  Free. Ch.  .531,  2  Ames  Eq.  Jur.  166. 

^See  Sackville  v.  Ajleworth,  1  Vern.  10.5,  2  Ames  Eq.  .Tur.  165. 

'Slat.  5  &  6  Vict,  ciiap.   69. 

*  Parry  v.  Rogers,  1  Vern.  441,  2  Ames  Eq.  .Tur.  16.5;  Angell  v.  Angell,  1  Sim. 
&  St.  S3,  2  Ames  Eq.  .Tur.  168. — A  fortiori,  a  bill  to  perpetuate  testimony  will  be 
dismissed  if  broi^lit  hy  one  who  is  already  a  parly  defendant  to  a  suit  wliicli 
involves  his  right,  interest  or  claim:  Earl  Spencer  v.  Peek,  L.  R.  3  Eq.  415,  2 
Ames  Eq.  Jur.  170. 

=  Angell  V.  Angell,  1  Sim.  &  St.  83,  2  Ames  Eq.  Jur.  168;  Duke  of  Dorset  v. 
Cirdler,  Prec.  Ch.  ,531,  2  Ames  Eq.  Jur.  106. 


8;")  THE    AUXILIARY    JURISDICTIOX.  §  214 

is  the  "publication  of  the  evidence,"  as  it  is  called  in  the  chancery 
practice,  by  which  the  parties  have  access  to  and  become  entitled  to 
use  the  testimon3^  This  "publication"  is  made  by  an  order  of  the 
court;  but  such  an  order  cannot  be  obtained  except  for  the  pur})()se 
of  using-  the  testimony  in  some  action,  nor  can  it  be  obtained,  as  a 
U'eneral  rule,  even  for  that  purpose  until  after  the  death  of  the 
witnesses  whose  depositions  are  sought  to  be  used.  This  latter  rule 
can  only  be  evaded  on  very  special  grounds,  by  showing  that  al- 
though the  witnesses  are  still  living  their  examination  in  the  ac- 
tion is  morallj"  impossible.*' 

§  213.  II.  Suits  to  Take  t'he  Testimony  of  Witnesses  de  Bene 
Esse,  and  of  Witnesses  in  a  Foreign  Country. — A  suit  to  take  testi- 
mony de  bene  esse  is  maintained  in  aid  of  a  pending  action  at  law 
to  examine  a  witness  Avho  is  very  aged,  or  who  is  sick,  or  who  is 
about  to  depart  from  the  country,  or  a  person  who  is  the  onhj  wit- 
ness to  a  material  fact  in  the  cause,  although  neither  aged  nor  sick; 
the  ground  of  such  proceeding  being  the  evident  danger  lest  the 
evidence  should  be  entirely  lost  to  the  party  by  a  delay.^  There  is 
a  very  clear  line  of  distinction  between  this  suit  and  that  to  per- 
petuate testimony.  While  the  latter  could  only  be  brought  b.y  a 
party  who  had  no  present  immediate  cause  of  action,  this  suit  to 
take  testimony  de  bene  esse  can  only  be  maintained  by  one  who  has 
an  existing  cause  of  action  or  defense,  and  while  the  action  of  law 
is  pending.-  After  the  depositions  are  completely  taken,  they  can- 
not lie  read  as  evidence  at  the  trial,  unless  it  is  shown  that  the  Avit- 
ness  is  dead,  or  is  beyond  the  jurisdiction,  or  is  too  physically  infirm, 
or  is  otherAvise  incapable  of  attending  to  testify  in  person.^ 

§  214.  The  suit  to  examine  witnesses  in  a  foreign  country  upon 
a  commission  issued  for  that  purpose,  in  aid  of  a  pending  action  at 
law.  is  founded  upon  the  original  lack  of  any  power  in  the  common- 
law  courts  to  grant  such  commissions.  The  name  indicates  the  na- 
ture and  extent  of  the  proceeding.  It  is  in  fact  a  branch  or  modifi- 
cation of  the  suit  to  take  testimony  de  bene  esse,  and  is  governed  by 
the  rules  applicable  to  that  suit,  except  the  witnesses  in  foreign 
countries  to  be  examined  need  not  be  aged  nor  sick.  The  inability 
to  reach  them,  or  to  compel  their  personal  attendance  by  any  legal 
process,  is  the  ground  upon  which  the  jurisdiction  rests.^ 

'Angell  V.  Angell,  1  Sim.  &  St.  83,  2  Amos  Eq.  .Tur.  108;  Duko  of  Dorset  v. 
Girdler,  supra;    Earl  Spencer  v.  Peek,  supra. 

1  Angell  V.  Angell,  1  Sim.  &  St.  83,  2  Ames  Eq.  Jur.  108;  Frere  v.  Green,  19 
Ve3.  320. 

-  Id. 

*Gason  v.  Wordsworth,  2  Ves.  Sr.  330. 

^Angell  V.  Angell,  1  Sim.  &  St.  83,  2  Ames  Eq.  Jur.  168. 


219  ECiUlXY   JLlilbl'KLDJiNOE.  86 


CHAPTER   II. 


GENEEAL  RULES  FOR  THE  GOVERNMENT  OF  THE 
JURISDICTION. 


SECTION  I. 

IX-\DEQUACY    OF    LF.(JAL   REMEDIES. 

ANALYSIS. 

§  21fi.  (^)uosii<)ns  to  be  exninined  stated. 

§  217.    Inadequacy   of   legal    remedies    is   the   ven'    foundation    of   tlic   con— 

current   jurisdiction. 
§   218.   Is    only    the    occasion    for    the    rightful    exercise    of    the    exclusive 

jurisdiction. 
§  219.  Operation    of   the   principle    upon    the   exclusive    jurisdiction;     does- 

not    affect   the    first    branch,    which    deals    with    equitable    estates 

and    interests. 
§§   220,221.  Is    confined    to    the    second     branch,    which     deals    with    equitable 

remedies. 
§  222.  Summary  of  the  equity   jurisdiction   as  afTected  by   the  inadequacy 

of    remedies. 

§  217.     Inadequacy  of  Legal  Remedies  the  Foundation  of  the  Con- 
current Jurisdiction.^ 

§  218.  Is  the  Occasion  only  of  the  Exclusive  Jurisdiction.^ 
§  219.  Operation  of  the  Principle  upon  the  Exclusive  Jurisdic- 
tion.—  ,  .  ,  The  exclusive  jurisdiction  consists,  as  has  been 
shown,  of  two  distinct  branches,  namely:  1.  Where  the  primaiy 
rights,  interests,  or  estates  of  the  complaining  parties  are  wholly 
equitable;  and  2.  Where  the  primary  rights,  interests,  or  estates  are 
legal,  but  the  remedies  sought  and  obtained  are  wholly  e(|uitable. 
The  principle  that  the  inadequacy  of  legal  remedies  furnishes  the  oc- 
casion for  a  resort  to  the  equitable  .jurisdiction  and  the  rule  for  its 
proper  exercise  does  not  extend  to  the  first  branch  or  division  of  the 
exclusive  jurisdiction.  .  .  .  Wherever  the  complaining  party 
has  purely  equitable  primary  rights,  interests,  or  estates  according 
to  the  doctrines  and  principles  of  the  equity  jurispnulence,  courts 
having  equitable  nowers  do  and  must  exercise  their  exclusive  juris- 

'  See  ante,   §    13fl,  note. 
^  See  ante,  §  K^O,  note. 


87  INADEQUACY    OF    LKciAL    REMEDIES.  §  2?0 

diction  over  the  ease,  entirely  irrespective  of  the  adequacy  or  inade- 
quacy of  legal  remedies,  for  the  plain  and  sufficient  reason  that  the 
litigant  party  cannot  possibly  obtain  any  legal  remedies  under  thf 
circumstances;  the  courts  of  law  do  not  recognize  his  rights,  and 
cannot  adjudicate  upon  nor  protect  his  interests  and  estates.  One 
or  two  examples  will  illustrate  the  correctness  and  the  generality 
of  this  statement.  In  the  case  of  a  trust  created  in  lands,  the  es- 
tate of  the  cestui  que  trust  is  purely  an  equitable  one,  of  which  law 
courts  refuse  to  take  cognizance.  He  is  therefore  always  entitled 
to  the  aid  of  a  court  of  equity  in  establishing,  maintaining,  and  en- 
forcing his  estate  according  to  the  nature  of  the  trust  and  the  doc- 
trines of  equity  jurisprudence  which  regulate  it,  and  to  obtain  such 
remedies  as  the  circumstances  may  require ;  and  the  question  never 
is  asked,  nor  could  be  asked,  whether  the  remedies  given  him  bj-  a 
court  of  law  are  or  are  not  adequate,  since  all  legal  remedies  are  to 
him  impossible.^     ... 

§  220.  It  is  otherwise  with  the  second  branch  of  the  exclusive 
jurisdiction,  as  above  described,  where  the  primary  rights,  interests, 
or  estates  of  the  complaining  party  are  legal  in  their  nature,  but  the 
remedies  sought  by  him  are  entirely  equitable.  Where  a  person  has 
a  legal  primary  right,  he  is  not  always,  and  as  a  matter  of  course, 
entitled  to  go  into  a  court  of  equity,  set  its  jurisdiction  in  motion, 
and  obtain  the  equitable  remedies  appropriate  to  maintain  or  protect 
his  right.  Since  his  estates,  interests,  or  primary  rights  are  legal, 
he  can  always,  in  case  of  their  infringement  or  violation,  demand 
and  r(?cover  the  legal  remedies  which  are  conferred  by  courts  of  law 
under  the  circumstances.  Whether  he  may  also  demand  and  re- 
cover the  proper  equitable  remedies  depends  upon  other  considera- 
tions. Although  the  jurisdiction  of  courts  of  equity  to  grant  these 
equitable  remedies  in  all  such  cases  is  exclusive,  because  courts  of 
law  (except  as  authorized  by  modern  statutes)  have  no  power  to 
grant  them,  yet  the  courts  of  equity  will  not,  in  every  instance,  ex- 
cxercise  their  jurisdiction.  The  proper  exercise  of  the  jurisdiction 
in  every  case  of  this  kind — but  not  the  jurisdiction  itself — depends 
upon  the  question  whether  the  legal  remedies  Avhich  the  party  can 
obtain  from  courts  of  law  upon  the  same  facts  and  circumstances 
are  inadequate  to  meet  the  ends  of  justice, — insufficient  to  confer 
upon  him  all  the  relief  to  which  he  is  justly  entitled.  If  the  legal 
remedies  administered  by  the  judicial  luachinery  and  methods 
adopted  in  the  law  courts  are  fully  adequate  to  establish,  protect, 
and  enforce  the  party's  legal  estates,  interests,  and  rights,  a  court 

'"Further  illustrations  are  foun;l  in  the  cases  of  the  equitable  assitjnjnent 
of  a  fund;  of  an  injunction  asjain^t  the  prosecution  of  an  action  at  law.  for  the 
purpose  of  protecting  an  cquilablc  iiilcicst  or  right  in  the  su])jcct  matter. 


§  220  EQUITY  JUIIJ.SPKUDEN-CE.  88 

of  equity  will  not  interfere  in  his  behalf  with  the  purely  remedial 
branch  of  its  exclusive  jurisdiction;  if  the  legal  remedies,  either 
from  their  own  essential  nature  or  from  the  imperfection  of  the 
legal  procedure,  are  inadequate,  then  a  court  of  equity  will  inter- 
pose, and  do  complete  justice  by  granting  the  appropriate  equitable 
remedies  which  it  alone  is  competent  to  confer.  .  .  .  Additional 
examples^  may  be  found  in  the  established  rules  concerning  the  use 
of  the  injunction.  The  jurisdiction  to  restrain  torts  to  property,  real 
or  personal,  nuisances,  trespasses,  and  the  like,  by  injunction,  is  ex- 
clusive, although  the  estate  of  the  complaining  party  which  is  in- 
terfered with,  and  which  he  seeks  to  protect,  is  legal,  and  he  is  en- 
titled to  the  legal  remedy  of  compensatory  damages,  yet  the  pre- 
ventive remedy  which  he  demands  for  the  protection  of  his  prop- 
erty is  wholly  equitable,  and  can  only  he  administered  by  courts  of 
equity.  The  general  doctrine  is  well  established  that  this  exclusive 
jurisdiction  will  not  be  exercised  in  any  case  for  the  purpose  of  en- 
joining trespasses  and  other  tortious  acts  to  property,  at  the  suit  of 
one  having  the  legal  estate,  unless  the  legal  remedy — compensatory 
damages — is  inadequate,  under  the  circumstance  of  the  case,  to  con- 
fer complete  relief  upon  the  injured  party.  Another  illustration 
may  be  found  in  the  doctrines  concerning  the  remedy  of  specific 
performance  of  contracts.  The  jurisdiction  to  enforce  performance 
of  contracts  specifically  is  exclusive,  for  the  remedy  itself  is  most 
distinctively  equitable  and  completely  beyond  the  judicial  methods 
of  the  law  courts:  yet  the  complaining  party  has  a  legal  primary 
right  created  by  the  contract,  and  upon  its  violation  is  alu'ai/=t  enti- 
tled to  the  relief  afforded  by  an  action  at  law, — compensatory  dam- 
ages— even  though  such  damages  are  only  nominal.  The  doctrine 
is  fundamental  that  this  jurisdiction  will  be  called  into  operation, 
and  the  si:)ecific  performance  will  be  decreed  only  in  those  classes 
of  eases  in  which,  according  to  the  views  taken  by  the  e(iuity 
court,  the  legal  remedy  of  compensatory  damages  is,  from  its  es- 
sential nature,  insufficient,  and  fails  to  do  complete  justice  between 
the  litigant  parties.  It  is  true  that  in  applying  this  doctrine  the 
courts  of  equity  have  established  the  further  rule  that  in  general 
the  legal  remedy  of  damages  is  inadeciuate  in  all  agreements  for 
the  sale  or  letting  of  land,  or  of  any  estate  therein:  and  therefore 
in  such  class  of  contracts  the  jurisdiction  is  always  exercised,  and 
a  specific  performance  granted,  unless  prevented  by  other  and  in- 
dependent equitable  considerations  Avhich  directly  affect  the  reme- 

^  Other  illustrations;  iisjunction  in  bolialf  of  defendant  in  action  at  law  where 
his  defense  involves  not  an  exclusively  equitable  riffht,  but  some  question  of 
fraud,  mistake,  etc.;  see  post,  §  13G3;  cancellation  of  written  instruments 
on  the  srround  of  fraud. 


89  IXADEQUACY   OF    LEGAL    liKMLDIES.  §  -122 

dial  right  of  the  complaining  part}^;  but  this  result  does  not  in- 
terfere with  nor  modify  the  pi'inciple  which  is  under  discussion.- 
§222.  Summary  of  the  Jurisdiction  as  Affected  by  the  Prin- 
ciple. ...  Laying-  out  of  view  for  the  present  that  special 
branch  of  equity  which  is  called  the  "auxiliary  jurisdiction,"  and 
which  has  become  obsolei;e  except  in  a  few  of  our  American  states, 
the  administration  of  the  equitable  jurisdiction,  and  the  resulting 
doctrines  which  make  up  the  equity  jurisprudence,  may  be  sep- 
arated, according  to  a  natural  order,  into  four  distinct  classes, 
namely:  1.  "Where  the  primary  right  or  interest  of  the  complain- 
ing party  which  has  been  invaded  is  purely  equitable — one  wdiich 
the  doctrines  of  equity  jurisprudence  alone  create  and  recognize, — 
and  his  remedial  right  and  the  remedies  which  he  obtains  are  also 
wholly  equitable;  for  example,  where  an  equitable  owner  of  land, 
under  the  doctrines  of  trust  or  of  <?onversion,  procures  the  declara- 
tive relief  establishing  his  estate,  and  the  relief  of  specific  perform- 
ance by  means  of  a  conveyance  of  the  legal  title.  2.  Where  the 
primary'  right  or  interest  of  the  complaining  party  is  in  like  man- 
ner equitable,  and  the  remedies  which  he  asks  and  receives  are 
legal ;  that  is,  are  of  the  same  kind  as  those  conferred  by  courts 
of  law;  for  example,  where  the  equitable  owner  of  a  fund,  through 
an  equitable  assignment,  establishes  his  ownership  and  recovers  the 

*  Various  and  sometimes  very  insufficient  reasons  have  been  given  by  judges 
for  the  foregoing  rule,  tliat  the  legal  remedy  is  always  to  be  regarded  as  inade- 
quate in  contracts  relating  to  real  estate,  while  on  the  other  hand  it  is  gener- 
ally to  be  regarded  as  adequate  in  contracts  relating  to  personal  property.  The 
distinction  stated  in  the  text,  and  vliich  I  am  illustrating,  may  perhaps  furnish 
a  coujplete  explanation.  In  an  agreement  for  the  sale  of  land,  the  vendee,  in 
addition  to  his  legal  primary  right,  also  obtains,  in  pursuance  of  the  equitable 
doctrine  of  conversion,  an  equitable  estate  in  tlie  land, — an  estate  which  equity 
regards  as  the  real  beneficial  ownership,  burdened  simply  or  encumbered  with 
the  lien  of  the  vmpaid  pvirchase  price.  Being  thus  the  holder  of  the  equitable 
estate  in  the  subject-matter,  the  equitable  owner  of  the  land,  he  is,  according 
to  tlie  doctrine  stated  in  the  text,  entitled  as  a  matter  of  course  to  the  aid  of  a 
court  of  equity  in  protecting  such  estate  and  in  clothing  him  with  the  lethal 
title  by  means  of  a  conveyance  from  the  vendor.  The  exercise  of  the  jurisdiction 
does  not  then  dejiend,  as  it  does  when  the  jurisdiction  is  merehf  to  confer  equi- 
table relief,  upon  the  inadequacy  of  the  legal  remedy,  but  is  rather  a  matter  of 
equitable  right  in  the  vendee.  The  same  rule  is  applied  in  cases  of  similar 
contracts  to  the  vendor,  partly  because  he  acquii'es  an  equitable  ownership  of 
the  purchase  price,  and  partly  because  of  the  doctrine  of  mutuality.  In  the 
contracts  relating  to  personal  property,  the  equitable  principle  of  conversion  is 
not  applied  with  the  same  strictness  and  with  all  the  consequences  as  in  contracts 
relating  to  real  estate.  The  further  rule,  that  the  granting  a  s]iecific  performance 
in  all  casea  depends  upon  certain  equitable  groxmds  affecting  the  remedial  right 
of  the  plaintirf,  or,  to  use  the  common  but  misleading  expression,  that  it  depends 
upon  the  judicial  discretion  of  the  court,  plainly  does  not  interfere  with  this 
view. 


EQUITY   JURlSl'iaDKXCK. 


90 


fund  by  a  final  judgment  which  is  simply  pecuniary.  3.  Where 
the  primary  right  or  interest  of  the  complaining  party  is  legal, — 
one  which  is  created  by  the  law,  and  cognizable  by  the  law  courts, — 
and  his  remedial  right,  and  the  remedies  which  he  procures,  are 
entirely  equitable;  for  example,  where  the  legal  owner  of  prop- 
erty obtains  protection  to  his  possession  or  enjoyment  by  means 
of  injunction  against  tortious  acts,  or  against  wrongful  proceedings 
at  law,  or  protects  his  title  from  disturbance,  or  himself  from 
wrongful  demands,  by  means  of  the  remedy  of  cancellation,  and 
the  like.  4.  Where  the  primary  right  or  interest  of  the  complain- 
ing party  i.s  legal,  recognized  and  maintainable  by  the  law  courts, 
an4  the  remedies  which  he  obtains  are  also  legal, — of  the  same 
kind  as  those  administered  and  conferred  by  the  courts  of  law, — 
recoveries  of  money,  or  of  specific  lands  or  chattels;  for  example, 
Avhere  a  surety  sues  his  principal,  under  his  right  of  exoneration, 
to  recover  back  the  money  paid  out  on  behalf  of  such  principal, 
or  sues  his  co-surety  to  recover  money,  under  his  right  of  contri- 
bution;  or  where  an  owner  in  common  of  land  by  a  legal  estate 
therein  recovers  his  own  specific  portion  by  a  partition,  and  the 
Jike.  All  possible  cases  of  equity  may  be  referred  to  one  or  the 
other  of  these  four  divisions.  The  first  three  belong  to  the  "ex- 
clusive" jurisdiction;  the  fourth  constitutes  the  "concurrent"  ju- 
risdiction. Furthermore,  in  the  first  and  second,  the  jurisdiction 
is  not  only  exclusive,  but  is  exercised  as  a  matter  of  right  in  behalf 
of  the  complaining  party  whenever  he  has  an  ecpiitable  estate, 
interest,  or  primary  right,  according  to  the  doctrines  of  equity 
jurisprudence.  In  the  third  division,  although  the  jurisdiction  al- 
ways exists  and  is  exclusive,  it  is  not  exercised  on  behalf  of  the 
complaining  party  as  a  matter  of  right  in  him;  its  proper  exer- 
cise depends  upon  the  inadequacy  of  the  legal  remedies  which  he 
might  obtain  to  do  him  complete  justice.  Finally,  in  the  fourth 
division,  the  very  existence  as  well  as  the  exercise  of  the  jurisdic- 
tion, being  concurrent,  depends  upon  the  inadequacy  of  the  reme- 
dies which  the  party  could  obtain  from  a  court  of  law,  owing 
partly  to  the  form  of  those  remedies  themselves,  and  partly  to 
the  imperfection  of  the  legal  mode  of  procedure. 


91  DISCOVKUY    AS    A    iSOfUCL:    OF    J  UKI.SUICTION'. 


SECTION  II. 

DISCOVERY    AS    A    SOURCE    OR    OCCASION    OF    JURISDICTION. 

ANALYSIS. 

§  ^22^.  General    docfrine    as    to    diseovory    as    a    source    of    concurrent    and 
an  occasion  for  exclusive  jurisdiction. 
§§  224,225.   Early   Englisli    rule. 

§  226.  Present   English    rule. 
S§  227-229.  Broad  rule  established  in  some  .\nierican  states. 

§  22!).  The  limitations  of  this  rule. 

§  2*^0.  Th"  true  extent  and  meaniny  of  tiiis  rule  examined. 

§  223.  General  Doctrine. — It  has  already  been  shown  that,  un- 
der the  o'eneral  jurisdiction  of  equity,  a  suit  of  discovery  alone 
without  relief  niiofht  be  maintained  in  order  to  procure  admissions 
from  the  defendant  to  be  used  on  the  trial  of  an  action  at  law  be- 
tween the  same  parties;  and  that  in  every  equitable  suit  brought 
for  any  purpose  of  relief  over  which  a  court  of  equity  has  jurisdic- 
tion, the  plaintiff  may  make  his  pleading  a  means  of  discovery, 
and  may  compel  the  defendant  to  disclose  facts  within  his  knowl- 
edge material  to  the  issue,  which  can  be  used  as  evidence  on  the 
hearing.  In  addition,  however,  to  these  original  and  strictly  proper 
functions  of  discovery,  the  doctrine  has  been  established  in  many 
of  the  American  states,  and  to  a  very  limited  and  partial  extent 
in  p]nglan(l,  that  discovery  itself  is,  under  certain  circumstances, 
an  independent  source  or  foundation  of  the  equitable  jurisdiction 
to  adjudicate  upon  matters  and  to  award  reliefs  which  are  other- 
wise purely  legal.  In  other  words,  that,  under  certain  circum- 
stances, where  the  plaintiff  has  asked  and  obtained  a  discovery, 
the  court  of  equity  may  go  on  and  decide  the  whole  issue,  and  grant 
the  requisite  remedies,  although  the  subject-matter  of  the  con- 
troversy and  the  primary  rights  and  interests  of  the  party  are 
wholly  legal  in  their  nature,  and  the  remedies  conferred  are  of 
such  a  kind  as  a  court  of  law  can  administer.    .     .     . 

§224.  Early  English  Rule. —  ...  An  early  treatise  of  high 
authority,  after  admitting  the  impossibility  of  extracting  a  more 
definite  rule  from  the  conflicting  decisions,  says:  "The  court, 
having  acquired  cognizance  of  the  suit  for  the  purpose  of  discovery, 
will  entertain  it  for  the  purpose  of  relief,  in  most  cases  of  fraud, 
account,  accident,  and  mistake."^     .     .     . 

§225.  .  .  .  What  is  the  real  significance  of  this  proposition? 
.     .     ,     In  many  cases  of  fraud,  mistake,  or  accident,  the  exclusive 

'  Fonblanque's  Equity,  b.    1.  ciiap.   1.   5   3.  note  f. 


§  226  EQUITY   JLinsi'KlDKXCE,  93 

.jurisdiction  exists  to  award  purely  equitable  remedies  in  support 
of*  legal  interests  and  pi'imary  rights  of  the  plaintiff;  and  such 
jurisdiction  will  be  exercised  in  these  cases,  according  to  the  prin- 
ciple heretofore  explained,  whenever  the  legal  remedies  obtainable 
therein  are  inadequate.  Also,  in  many  eases  of  fraud,  mistake, 
accident,  or  account,  the  concurrent  jurisdiction  exists  to  award 
remedies  of  a  kind  which  are  purely  legal,  such  as  pecuniary  re- 
coveries, in  support  .of  the  legal  interests  and  primary  rights  of 
the  plaintiff',  whenever  the  remedies  obtainable  from  a  court  of 
laAv  are  inadequate,  through  the  imperfection  of  the  legak  modes 
of  procedure.  Now,  the  proposition  quoted  above  simply  asserts 
that  in  all  cases  falling  wnthin  either  of  the  two  classes  last  men- 
tioned, in  all  such  cases  behmging  either  to  the  exclusive  or  to 
the  concurrent  jurisdiction,  the  very  fact  that  a  discovery  is  nec- 
essary for  the  plaintiff',  and  is  obtainable  by  him,  shows  of  itself, 
and  independent  of  any  other  considerations,  that  the  case  is  one 
in  which  the  ordinary  remedies  at  law  are  inadequate,  and  there- 
fore that  the  e(|uitable  jurisdiction  is  proper  in  such  case.  .  .  . 
This  view,  as  it  seems  to  me,  removes  all  conflict  appearing  in  the 
English  decisions  and  dicta,  and  brings  the  effect  of  discovery 
into  a  complete  harmony  with  the  general  principles  concerning 
jurisdiction.  It  rejects  the  notion  that  the  mere  fact  of  discovery 
has  any  ])Ower  to  enlarge  the  equitable  jurisdiction,  or  to  extend 
that  jurisdiction,  whether  exclusive  or  concurrent,  to  any  cases 
in  which  it  does  not  otherwise  exist;  on  the  other  hand,  it  admits 
that,  in  cases  otherwise  belonging  either  to  the  exclusive  or  the 
concurrent  jurisdiction,  a  discovery  obtained  may  be  the  detcr- 
iiiininf/  fact  upon  which  the  proper  exercise  of  that  jurisdiction 
depends, — the  fact  which,  without  any  other  accident,  renders  the 
legal  remedies  inadequate,  and  thus  sets  in  motion  the  judicial 
machinery  of  equity. 

§  226.  Present  English  Rule. — The  conclusion  thus  reached  is 
fully  sustained  l)y  the  more  modern  English  decisions.  The  rule 
fully  settled  by  the  English  courts,  before  the  auxiliary  jurisdic- 
tion over  discovery  was  finally  abolished  by  the  supreme  court  of 
judicature  act,^  was,  that  if  the  controversy  and  the  issues  involved 
in  it  are  not  otherwise  within  the  equitable  jurisdiction,  either 
exclusive  or  concurrent,  and  the  legal  remedies  obtainable  in  the 
case  are  adequate,  a  bill  properly  for  discovery  without  any  re- 
lief, in  aid  of  a  pending  or  expected  action  at  laAv,  can  alone  be 
maintained;  and  if  in  such  a  bill  the  plaintiff"  demands  relief,  either 
general   or  special,  the  whole  is  demurrable.-     This  rule  confines 

'  See  ante,  S  103. 

^Tlio   samo   (lootvino   as   to   the   eflect   of   discovery  upon   the   jvuMsdictinji   lias 


93  DISCOVERY    AS    A    SOlliCK    OF    .7Ui;iSDICTI0>;.  j^  •^29 

discovery  to  its  legitimate  function  of  furnishing  evidence,  and 
prevents  it  from  operating  to  extend  the  equitable  jurisdiction  to 
causes  which  would  otherwise  be  solely  cognizable  at  law. 

§  227.  American  Rule. —  .  .  .  The  rule  has  been  asserted 
l)y  many  American  courts  in  very  general  terms,  that  whenever 
a  court  of  equity  has  obtained  jurisdiction  of  a  cause  for  any  one 
purpose,  it  may  retain  such  cause  for  the  purpose  of  adjudicating 
upon  all  the  matters  involved,  and  of  granting  complete  relief. 
As  a  consequence  of  this  principle,  whenever  the  court  can  enter- 
tain a  suit  for  discovery,  and  a  discovery  is  obtained,  the  court 
v.'ill  go  on  and  decide  the  whole  issue,  and  will  grant  to  the  plaintiff, 
if  he  has  prayed  for  it,  whatever  relief  is  proper,  even  though  such 
relief  is  legal  in  its  kind,  and  could  have  been  obtained  by  an 
action  at  law.^ 

§  228.  It  is  plain  that  this  doctrine,  although  expressed  in  such 
broad  terms',  cannot  be  intended  to  operate  in  all  of  its  generality. 
Taken  literallj^  and  without  limitation,  it  would  break  down  the 
barriers  betAveen  the  jurisdictions  in  equity  and  at  law.  and  would 
virtually  render  the  equitable  jurisdiction  universal  by  bringing 
every  judicial  controversy  within  its  scope.  Before  the  modern 
legislation  concerning  witnesses  and  evidence,  the  actions  at  law 
were  very  few  in  which  one  or  the  other  of  the  parties  might  not 
be  aided  by  a  discovery,  and  might  not,  in  conformity  with  settled 
rules,  maintain  a  suit  for  a  discovery. 

§  229.  Limitations  were  therefore  established  which  very  much 
restricted  the  operation  of  the  doctrine.  In  the  first  place,  the  rule 
is  settled  in  those  American  courts  which  admit  the  general  doctrine, 
that  when  the  action  is  one  cognizable  at  law,  in  which  the  rights 
and  remedie.s  are  legal,  and  which  does  not  otherwise  belong  to  the 
equitable  jurisdiction,  but  which  the  plaintiff  brings  in  a  court  of 
equity  under  the  doctrine  that  a  discovery  of  itself  enables  equity 
to  extend  its  concurrent  jurisdiction  over  the  whole  cause,  he  must 
allege  that  the  facts  concerning-  which  he  seeks  a  disclosure  are 
material  to  his  cause  of  action,  and  that  he  has  no  means  of  proving 
those  facts  by  the  testimony  of  Avitnessess  or  by  any  other  kind  of 
evidence  used  in  courts  of  law,  that  the  only  mode  of  establishing 
them  is  by  compelling  the  defendant  to  make  disclosure,  and  there- 
fore that  a  discovery  by  suit  in  equity  is  indispensable.  Without 
these  allegations  the  plaintiff  cannot  avail  himself  of  the  doctrine 

been  adopted  in  some  American  states;  See  Mitchell  v.  Creene,  10  Met.  101; 
:\filler  V.  Scammon,  52  N.  H.  609,  II.  &  B.  205;  8afford  v.  Ensign  Mfg.  Co.. 
(C.   C.   A.)    120    Fed.   480,   48.3. 

'  Sonborn  v.  Kittiedge,  20  Vt.  G.32,  50  Am.  Dee.  58;  Lancy  v.  Randlett.  80  Me. 
100,  (J  Am.  St.  Rep.  1G9,  1  Scott  4-00. 


§  230  EQUITY  JUHISI'KLUEN-CE.  94 

and  obtain  relief  as  a  consequence  of  the  discovery.  Nor  are  these 
allegations  a  mere  empty  form,  a  mere  fiction  of  pleading;  they 
may  be  controverted,  must  be  supported  by  proof,  and  if  disproved, 
the  whole  foundation  for  the  equitable  interference  in  the  case 
would  fail.^  In  the  second  place,  if  the  defendant  by  his  answer 
fully  denies  all  the  allegations  of  fact  with  respect  to  Avhich  a  dis- 
covery is  demanded,  the  suit  must  fail ;  the  court  of  equity  cannot 
grant  the  relief  prayed  for,  since  its  jurisdiction  to  give  relief  in 
such  causes,  according  to  the  very  assumption,  rests  upon  the  fact  of 
a  discovery  rightfully  obtained. - 

§  230.  True  meaning  of  the  American  Rule. —  .  .  .  The  ques- 
tion then  arises.  What  effect  has  been  produced  upon  this  particular 
doctrine  by  the  modern  legislation,  which  authorizes  the  examination 
of  parties  on  the  trial  of  actions,  abolishes  the  disabilities  of  wit- 
nesses, and  removes  the  other  legal  restrictions  upon  the  admissi- 
bility of  evidence?  In  my  opinion,  the  necessary  effect  of  such  legis- 
lation has  been  to  abrogate  the  doctrine  altogether,  even  in  those 
states  where  "discovery"  is  still  retained.  In  fact,  the  foundation 
upon  which  this  peculiar  American  doctrine  concerning  the  effect 
of  discovery  in  the  classes  of  eases  above  described  was  rested  by 
the  courts,  has  been  wholly  swept  away  by  these  reformatory  sta- 
tutes. It  is  simply  impossible  for  a  plaintiff'  now  to  allege  with  truth, 
and  of  course  impossible  for  him  to  prove  in  any  controversy  legal  in 
its  nature,  that  a  discovery  by  means  of  a  suit  in  equity  is  essrnfial 
to  his  maintaining  his  cause  in  action,  and  that  he  is  unable  to  estab- 
lish the  issues  on  his  part  by  the  testimony  of  witnessess,  and  by 
other  evidence  admissible  in  courts  of  law.  ...  It  is  true 
that  the  principle  is  well  settled  that  when  a  court  of  equity  had 
jurisdiction  over  a  certain  subject-matter,  it  does  not  lose  such  juris- 
diction when  courts  of  law  have  subsequently  acquired  the  same 
jurisdiction.  In  my  opinion  the  matter  under  consideration  does 
not  come  within  the  operation  of  this  principle.  It  is  not  the  case 
of  a  jurisdiction  held  by  courts  of  e(|uity  which  courts  of  law  did 
not  originally  possess,  but  have  now  obtained.  By  the  very  assump- 
tion, the  controversy,  the  cause  of  action,  and  the  reliefs  demanded 
are  all  legal  in  their  nature;  courts  of  law  always  had  jurisdiction 
over  them.  The  only  difficulty  was,  that  by  reason  of  certain  arbi- 
trary rules  of  law  concerning  evidence,  the  jurisdiction  of  the  law 
courts  over  this  particular  class  of  legal  controversies  could  not  bo 
exercised  so  as  to  do  full  justice,  until   the  defective  legal  rules  of 

'Laneey  v.  Ramllctt,  80  Me.  100.  13  Atl.  f;sn.  H  Am.  St.  P.op.  ir,0.  ]  Srott  400: 
Jirown  V.  Swaiin.  10  VpL  497:    Piynv  y.  .\<]i\m^.  1   Call  3S'2.  1   Am.  T)pp.  S.'^.S. 

M?Tissell  V.  Clarke's  Ex'r's.  7  rraiuh.  HO:  Buzard  v.  Houston,  119  U.  S. 
Sf).  7  Slip.  a.  240.  71.  .<c  B.  208.  3  Keener  4S7. 


95  JURISDICTION    i;.MI'.l!ACi:s    WHOLE    MATTER.  Ji  231 

evidence  had  been  aided  or  supplemented  by  means  of  a  discovery 
in  equity;  when  this  discovery  was  once  made,  and  the  proper 
evidence  was  thereby  obtained,  the  jurisdiction  at  hiw  could  then 
be  exercised,  and  complete  justice  could  be  done  by  its  trial  and 
judgment,  as  much  as  in  any  other  legal  controversies.  Since  the 
particular  equity  doctrine  under  discussion  arose,  not  from  the  ah- 
sence  of  a  jurisdiction  at  law,  but  merely  from  certain  hindrances  to 
its  useful  exercise,  and  since  this  doctrine  depended  for  its  existence 
and  operation  ujion  certain  rules  of  (evidence,  it  is  not,  in  my  opin- 
ion, endiraced  within  the  protection  of  the  general  principle  as  to 
jurisdiction  quoted  above:  it  seems  to  me  to  have  been  necessarily 
abrogated  !)}■  the  sweeping  changes  effected  in  the  legal  rules  of  evi- 
dence bv  modern  statutes." 


SECTION  III. 


THE      DOCTRINE      THAT      JURISDICTION      EXISTING      OVER      SOME 
PORTION    OR    INCIDENT    EXTENDS    TO    AND    EMBRACES    THE 
WHOLE      SUBJECT-MATTER      OR      CONTROVERSY. 

ANALYSIS. 

§   231.  The  doctrine  as  api)lioiI   in  tlic  concurrent  jurisdiction. 

§  232.  As  apjjlied   in  tlie  exclusive  jurisdiction. 

§  233.  Limitations    on   the    ;!octrinc. 

§§   234-241.  Illustrations  of  the  doctrine. 

§   234.  In  cases  of  discovery. 

§  235.  In  cases  of  administration. 

§  236.  In   cases   of    injunction. 

§  237.  In  cases  of  waste,  nuisance,  damages. 

§§   238-241.  Jn  various  other  cases. 

§  242.  ElFect   of   the   reformed   procedure   on   the   doctrine. 

§  2:31.  As  Applied  to  the  Concurrent  Jurisdiction. — The  rule  has 
already  been  stated,  as  one  of  the  foundations  of  the  concurrent 
jurisdiction,  that  where  a  court  of  equity  has  obtained  jurisdiction 
over  some  portion  or  feature  of  a  controversy,  it  may,  and  will  in 
general,  proceed  to  decide  the  whole  issues,  and  to  award  complete 
relief,  although  the  rights  of  the  parties  are  strictly  legal,  and  the 
final  remedy  granted  is  of  the  kind  which  might  he  conferred  hv  a 
court  of  law.  This  principle  is.  however,  of  much  wider  application, 
extending  in  its  operation  to  both  the  concurrent  and  the  exclusive 
jurisdictions:  and  it  requires,  therefore,  a  more  full  discussion.  In 
its  application  to  the  concurrent  jurisdiction,  this  principle  forms. 
as  has  beer  already  shown,  one  of  the  very  foundations  upon  which 

'Miller  V.  Scnnimon.  52  N.  H.  600,  H.  A-  B.  265. 


§  235  EQUITY     JURISPRUDENCE.  96 

that  jurisdiction  sometimes  rests;  and  it  is  then  something  more 
than  merely  an  occasion  or  condition  of  fact  for  the  proper  exercise 
of  the  jurisdiction.  In  other  words,  where  the  primary  rights 
and  cause  of  action  of  the  complaining  party  are  legal,  and  the 
remedy  which  he  asks  and  obtains  is  of  the  kind  given  by  courts  of 
law,  the  concurrent  jurisdiction  of  equity  to  interfere  and  adjudicate 
upon  the  controversy  may  exist  by  virtue  of  this  principle ;  it  may 
alone  determine  the  inadequacy  of  legal  remedies  upon  which  the 
very  existence  of  the  concurrent  jurisdiction  always  depends. 
It  may  be  remarked  that  the  instances  in  which  the  concurrent 
jurisdiction  results  from  the  operation  of  this  principle,  at  least  in 
the  United  States,  are  most  frequently  cases  of  accounting  or  of  dis- 
covery followed  by  relief. 

§  232.  As  Applied  in  the  Exclusive  Jurisdiction. — The  principle 
is  also  frequently  applied  in  cases  belonging  to  the  exclusive  juris- 
diction, and  it  then  furnishes  an  occasion  for  the  proper  exercise 
of  that  jurisdiction  by  the  granting  of  complete  final  relief  which 
is  purely  equitable  in  its  nature.  In  such  instances,  where  the  pri- 
mary rights  and  interests  of  the  complaining  party  are  legal,  and 
the  court  has  jurisdiction  over  some  part  of  the  controversy,  or  to 
grant  some  partial  or  incidental  equitable  relief,  it  may,  under  the 
operation  of  this  principle,  and  genei'ally  M'ill,  go  on  and  decide 
all  the  issues,  and  award  the  final  equitable  relief  which  is  necessary 
to  meet  the  ends  of  justice,  and  which  belongs  to  the  exclusive 
jurisdiction  of  the  court.  While,  therefore,  the  same  general  doc- 
trine, expressed  in  the  same  formula,  is  etiually  applicable  to  cases 
of  the  concurrent  and  of  the  exclusive  jurisdiction,  yet  its  opera- 
tion, as  furnishing  a  ground  for  the  judicial  action,  is  very  different 
in  the  two  jurisdictions. 

§234.  Illustrations. —  .  .  .^  The  particular  remedy  of  a  dis- 
covery is"  also,  to  some  extent  at  least,  the  foundation  of  the  estal)- 
lished  jurisdiction  of  equity  over  the  administration  of  the  personal 
estates  of  deceased  persons.  It  has  frequently  been  held  that  where 
a  creditor,  or  a  legatee,  or  a  distributee  brought  a  suit  in  equity 
to  obtain  a  discovery  of  assets  in  the  hands  of  the  personal  repre- 
sentatives, the  court  having  thus  obtained  a  jurisdiction  of  the  mat- 
ter for  this'  special  purpose,  would  go  on  and  make  a  full  decree 
of  administration,  of  accounting  from  the  executors  or  administra- 
tors, and  of  final  settlement  or  distribution. - 

§  235.  Although  the  legislation  of  most  of  the  states  has  either 
expressly  or  ])ractically  taken  the  general  jurisdiction  of  adminis- 

^  For  the  application  of  the  principle  after  a  discorcrif,  see  ante.   §§223-230. 
-Pratt  V.   Northam,   5   Mason   95,    105;    Sanders  v.   Soutter,    126  N.   Y.    193, 
27  N.   E.  263. 


97  JURISDICTION    EMBRACES    WHOLE    MATTER.  §  2'M'y 

tration  froni  the  courts  of  equity,  and  has  conferred  it  upon  courts 
of  probate  under  minute  statutory  regulation,  still,  whenever  a  court 
of  equity  takes  cognizance  of  a  decedent's  estate  for  any  special 
purpose,  or  to  grant  any  special  relief  not  within  the  power  of  the 
piobate  court,  such  as  the  construction  of  a  will,  the  setting  aside 
of  some  fraudulent  transaction  of  an  executor  or  administrator, 
the  restraining  of  an  executor's  or  administrator's  wrongful  acts 
by  injunction,  and  the  like,  it  has  been  held  in  many  states  that  the 
court  of  equity,  having  thus  acquired  a  jurisdiction  of  the  estate 
for  this  particular  purpose,  may  and  should,  notwithstanding  the 
statutory  system,  go  on  and  decree  a  complete  administration, 
settlement,  and  distribution  of  the  entire  estate,  in  the  same  man- 
lier in  which  it  would  have  proceeded  under  the  original  jurisdic- 
tion of  chancery  prior  to  the  legislation.^  In  some  of  the  states  this 
poAver  of  a  court  of  equity  to  go  on  and  control  the  entire  adminis- 
tration of  the  estate  and  decree  a  final  settlement  and  distribution, 
Avhenever  it  has  thus  obtained  a  jurisdiction  for  some  special  pur- 
pose, is  doubtless  limited  or  prohibited  by  the  statutes.  The  lan- 
guage of  the  statute  conferring  general  power  over  the  Avhole  sub- 
ject of  administration  upon  the  probate  court  is  so  broad,  minute, 
and  peremptory  that  the  general  powers  and  jurisdiction  orig- 
inally belonging  to  chancery  over  the  settlement  of  decedent's  es- 
tates are  completely  taken  away,  and  are  wholly  transferred  into 
the  exclusive  cognizance  of  the  probate  court,  and  are  exercised  by 
it  in  accordance  with  the  minute  and  compulsory  provisions  of  a 
statutory  system.  In  these  states,  and  by  virtue  of  these  statutes, 
if  a  court  of  equity  obtains  jurisdiction  over  the  subject-matter 
of  a  decedent's  estate  for  any  special  purpose  not  within  the  com- 
petency of  the  probate  court,  such  as  the  constrTiction  of  a  will, 
the  control  and  enforcement  of  a  trust,  the  cancellation  of  some 
fraudulent  conversance  made  by  an  executor  or  administrator,  and 
the  like,  its  function  will  be  limited  to  matters  which  are  necessary 
to  render  this  speeial  relief  complete  and  effectual ;  it  Avill  not  be 
allowed  to  go  on  to  a  full  and  final  administration  and  settlement 
of  the  estate  as  a  whole.  Such  administration  and  settlement,  after 
receiving  the  aid  of  the  special  relief  furnished  by  the  decree  in 
equity,  can  be  accomplished  by  the  probate  court  alone,  to  whose 
exclusive  cognizance  they  have  been  intrusted  l)y  the  statute.^ 

§  236.  Another  extensive  class  of  eases  in  which  the  principle  has 
been  applied  embraces  suits  brought  to  enjoin  the  further  prosecu- 
tion of  a  pending  action  at  law,  or  the  enforcement  of  a  judgment 

'Cowles  V.  Pollard,  ,51  Ala.  445;     Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5 
Am.  Rep.  498;  Sanders  v.  Soutter,  126  N.  Y.  103,  27  N.  E.  2G3. 
^Gilliam  v.  Chancellor,  43  Miss.  437,  448,  5  Am.  Rep.  498. 


§  237  EQUITY     JUKl.SPKUDKXCE.  -^S 

recovered  at  law,  either  on  the  gronnd  of  some  equitable  defense 
not  cognizable  by  the  law  court,  or  on  the  ground  of  some  fraud, 
mistake,  ignorance,  or  other  incident  of  the  trial  at  law,  which  ren- 
dered the  legal  judgment  inequitable.  In  such  cases  the  court  of 
equity,  having  obtained  jurisdiction  of  the  cause  for  the  purpose 
of  an  injunction,  may  decide  the  whole  controversy  and  render  a 
final  decree,  even  though  all  the  issues  are  legal  in  their  nature, 
capable  of  being  tried  by  a  court  of  law,  and  the  legal  remedies 
therefor  are  adequate^  In  fact,  the  rule  is  more  general  still  in  its 
operation,  and  extends  to  all  suits  brought  to  obtain  the  special 
relief  of  injunction,  and  is  not  confined  to  suits  for  the  purpose  of 
enjoining  actions  or  judgments  at  law.  It  may  be  stated  as  a  gen- 
eral proposition,  that  wherever  the  court  of  equity  has  jurisdiction 
to  grant  the  remedy  of  injunction  for  some  special  purpose,  even 
though  the  injunction  covers  only  a  portion  of  the  controversy,  it 
may  go  on  and  decide  all  the  issues,  and  make  a  final  decree  grant- 
ing full  relief.- 

§  237.  Particular  instances  of  the  operation  of  the  above  general 
rule  concerning  the  remedy  of  injunction  may  be  seen  in  the  cases 
of  waste  and  of  private  nuisance.  Originallj^  the  jurisdiction  over 
cases  of  waste  was  confined  to  courts  of  law;  the  legal  remedy 
by  action  for  damages  was  regarded  as  adequate,  and  as  the  only 
remedy.  The  same  was  true  of  private  nuisance.  In  time  it  was 
felt  that  this  merely  compensatory  relief  was  insufficient  u.nder 
some  circumstances,  and  that  a  preventive  remedy  was  necessary 
to  the  ends  of  justice.  Equity  therefore  assumed  a  jurisdiction 
to  grant  an  injunction  restraining  the  commission  of  actual  or 
threatened  waste;  and  having  obtained  jurisdiction  for  the  purpose 
of  awarding  this  special  relief,  which,  in  many  instances,  is  not 
complete,  the  court  will  retain  the  cause  and  decree  full  and  final 
relief,  including  damages,  and  when  necessary,  an  abatement  of 
whatever  creates  the  waste  or  causes  the  nuisance.^  The  same 
description  will  apply  to  all  cases  of  private  nuisance  in  which  a 
court  of  equity  ma}"  have  jurisdiction  to  interfere  by  injunction. - 
There  are  some  other  instances,  in  additiim  to  those  of  injunction, 

'.Mays  V.  Taylor,  7  Oa.  2.38,  243,  244:  (^)ons  v.  Coons,  m  Vn.  434,  64  Am.  8t. 
Rep.  804,  28  K.  E.  885;  Crobert  v.  McDonald,  2  S.  D.  4!)5,  51  N.  W.  212.  30 
Am.    St.   Rep.    796. 

-.lesus  College  v.  J'.looni,  3  Atk.  262.  263,  1  Scott  115,  1  Ames  Eq.  .Tur.  481. 
1  Keener  404.  per  Lord  Hardwicke;   reo])le  v.  Chicago,  53  HI.  424.  428. 

Mesus  College  v.  r.loom,  3  Atk.  262.  2(:3.  1   Scott   115.  1   Ames  Eq.  .Tur.   481 
1    Keener  404:   Lynch  v.  Metropolitan  El.  Ity.  Co.,  120  X.  Y.  274,  15  L.  R.  A.  287, 
26   Am.   St.    Hep.    523.   20    \.    E.    315.    1    SccK,    124.    Shcp.    30. 

=  Fleishner  v.  Citizens'  K.  E.  &  !.  Co..  25  Orvj.  110.  35  Tac.  174:  Rich!  v. 
Chattanooga   Brewing   Co^,    105   Tcnn.   651,   58   S.    W.   646. 


99  JURISDICTIOX    EMBRACKS    WUOLE    MATTER.  >;  T^l 

waste,  nuisance,  and  eontiniious  or  irreparable  trespass,  where 
e(niit3',  having  obtained  jurisdiction  for  some  particular  purpose, 
will  complete  the  possible  relief  by  decreeing  damages;  but  this 
application  of  the  principle  is  not  general;  on  the  contrary,  it  is 
rather  exceptional.  The  award  of  mere  compensatory  damages, 
which  are  almost  always  unliquidated,  is  a  remedy  peculiarly  be- 
longing to  the  province  of  the  law  courts,  re(iuiring  the  aid  of  a 
jur}^  in  their  assessment,  and  inappropriate  to  the  judicial  position 
and  functions  of  a  chancellor.  It  may  be  stated,  therefore,  as  a 
general  proposition,  that  a  court  of  equity  declines  the  jurisdiction 
to  grant  mere  compensatory  damages,  when  they  are  not  given  in 
addition  to  or  as  an  incident  of  some  other  special  equitable  relief, 
u.nless  under  special  circumstances  the  exercise  of  such  jurisdiction 
may  be  requisite  to  promote  the  ends  of  justice."  There  are,  how- 
( ver,  special  circumstances  in  which  the  principle  under  discussion 
is  invoked  and  is  extended  to  the  award  of  mere  damages.  If  a 
conrt  of  equity  obtains  jurisdiction  of  a  suit  for  the  purpose  of 
granting  some  distinctively  equitable  relief,  such,  for  example, 
as  the  specific  performance  of  a  contract,  or  the  rescission  or  can- 
cellation of  some  instrument,  and  it  appears  from  facts  disclosed 
on  the  hearing,  but  not  known  to  the  plaintitt'  when  he  brought  his 
suit,  that  the  special  relief  prayed  for  has  become  impracticable, 
and  the  piaintift'  is  entitled  to  the  only  alternative  relief  possible  of 
damages,  the  court  then  may,  and  generally  will,  instead  of  com- 
jielling  the  plaintiff  to  incur  the  double  expense  and  trouble  of 
an  action  at  law,  retain  the  cause,  decide  all  the  issues  involved, 
and  decree  the  payment  of  mere  compensatory  damages."* 

•(Jipc'ii  V.  Slcwavl.  45  X.  Y.  Suitp.  982,  19  App.  Div.  201;  Crowell  v.  Young, 
(Tnd.    r.)    ()4  S.  W.  (>07;    Alser  v.  Anderson,  92  Fed.  696. 

*  Holland  V.  Anderson,  38  jMo.  55,  58;  Lewis  v.  Town  of  Kingston,  16  R.  I.  15, 
11  Atl.  17.3,  27  Am.  St.  Rep.  724;  Case  v.  Minot,  158  Mass.  577,  22  L.  R.  A. 
5.'?6,  83  N.  E.  700.  The  application  of  the  principle  to  the  relief  of  damages  lias 
frequently  occurred  in  siiits  for  a  specific  performance.  The  following  rules  haA'(-- 
heeii  established  by  American  decisions:  If  through  a  failure  of  the  vendor's, 
title,  or  any  other  cause,  a  specific  performance  is  really  impossible,  and  the  ven- 
dee is  aware  of  the  true  condition  of  aflFairs  before  and  at  the  time  he  brings 
his  suit,  th6  court,  being  of  necessity  obliged  to  refuse  the  remedy  of  specific 
performance,  will  not,  in  general,  retain  the  suit  and  award  compensatory  dama- 
ges, because,  as  has  been  said,  the  court  never  aoqtiired  a  jurisdiction  over  the 
cause  for  any  purpose:  Hatch  v.  Cobb,  4  Johns.  Ch.  559,  2  Scott  343;  Milk- 
man V.  Ordway,  106  Mass.  232,  253.  1  Scott  119.  A  second  rule  is,  that  if  the 
remedy  of  specific  ]ierformance  is  possible  at  the  commencement  of  a  suit  by  the 
vendee,  and  Mhile  tlie  action  is  pending  the  veiulor  renders  this  remedy  imprac- 
ticable In-  conveying  the  subject-matter  1o  a  bona  fide  purchaser  for  value,  the 
court  will  not  coniin-l  llie  plaint if1'  1(>  bring  a  second  action  at  law,  but  having 
acquired  jurisdiction,  will  do  full  justice  by  decreeing  a  recovery  of  damages; 
ililkman  v.  Ordway,  100  :Mass.  232,  253,   1   Scott  119,  per  Wells,  J.     The  rule 


§  ;i41  EQUITY    JUKISPUUDENCE.  lOJ 

§  238.  ...  A  suit  being  brought  to  reform  a  policy  of 
insurance  after  a  loss  had  occurred,  the  court  retained  the  cause 
and  gave  the  plaintiff  final  and  complete  relief  by  ordering  a  pay- 
ment of  the  amount  due  on  the  policy  as  reformed,  although  the 
remedy  would  ordinarily  and  naturally  have  belonged  to  a  court 
of  law.^ 

§  241.  .  .  .  The  defendant,  by  one  wrongful  act  and  in  one 
mass,  detained  a  quantity  of  chattels  belonging  to  the  plaintiff. 
A  part  of  these  were  articles  of  a  special  nature  and  persona! 
value,  for  which  damages  could  not  adequately  be  ascertained, 
and  in  respect  of  wdiich  the  equity  jurisdiction  to  compel  their 
restoration  was  clear.  The  remaining  portion  were  ordinary  chat- 
tels, of  a  kind  readily  purchasable  in  the  market,  and  for  which 
damages  could  be  assessed  without  difficulty.  The  plaintiff  brought 
a  suit  in  equity  to  compel  the  restoration  of  the  entire  mass  of 
chattels.  The  court  held  that  since  its  jurisdiction  attached  over 
the  one  class  of  articles,  it  would  decide  the  whole  controversy  in 
the  one  suit,  and  decree  a  return  of  the  entire  amount,  the  two 
kinds  being  connected  by  the  single  wrongful  act  of  the  defend- 
ant.^ 

applies  where  the  contract  is  performed  after  commencement  of  suit.  Gnibb  v. 
Sharkey,  00  Va.  831,  20  8.  E.  784.  H.  &  B.  736.  The  third  rule  is  as  follows:  If  a 
specific  performance  was  orioinally  possible,  but  before  the  commencement  of 
the  suit  the  vendor  makes  it  impossible  by  a  conveyance  to  a  third  person;  or  if 
the  disability  existed  at  the  very  time  of  entering  into  the  contract  on  account 
of  a  defect  in  the  vendor's  title,  or  otlier  similar  reason, — in  either  of  tliese 
cases,  if  the  vendee  brings  his  suit  in  good  faith,  without  a  knowledge  of  the  ex- 
isting disability,  supposing,  and  having  reason  to  suppose,  himself  entitled  to  the 
equitable  remedy  of  a  specific  performance,  and  the  impossibility  is  first  disclosed 
by  the  defendant's  answer  or  in  the  course  of  the  hearing,  then,  although  the 
court  can  not  grant  a  specific  i)erformance,  it  will  retain  the  cause,  assess  the 
plaintiff's  damages,  and  tlecree  a  pecuniary  judgment  in  place  of  the  purely  equi- 
table relief  originally  demanded.  This  rule  is  settled  bj^  an  overwhelming  pre- 
ponderance of  American  authorities:  ]\Iilkman  v.  Ordway.  106  Mass.  232,  253, 
1  Scott,  119;  and  see  Waite  v.  O'Neil.  72  Fed.  348;  affirmed,  76  Fed.  408,  22  C.  C, 
A.  248,  34  L.  R.  A.  550.  In  Combs  v.  Scott,  76  Wis.  662,  45  N.  W.  532,  H.  &  B. 
682,  2  Scott  357,  2  Keener  1194,  the  statute  of  limitations  having  run  ujjon  the 
contract  pending  suits  for  specific  performance,  the  cause  was  retained  for  the 
purpose  of  granting  compensation. 

^Bidwell  V.  Astor  Ins.  Co.,  16  N.  Y.  263.     See,  also.  Union  Cent.  Life  Ins.  Co. 

v.  Phillips,  102  Fed.  19,  41  C.  C.  A.  263   (bill  to  compel  delivery  of  life  insurance 

policy  after  death. of  insured  retained  for  full  relief  on  the  policy).     In  general, 

.  where  equity  takes  jiu'isdiction  to  reform  an  instrument,  it  may  go  on  and  decree 

full   relief  thereon:    Kelly  v.  Calbraith,   186   HI.  593.  58  X.  E.  431. 

'  McGowin  v.  Remington,  12  Pa.  St.  56.  63,  51  Am.  Dec.  584.  The  whole  opinion 
in  this  case  is  able  and  instructive. 

Other  instances:  United  States  v.  I'nion  Pac.  Pv.  Co.,  160  V.  S.  1.  16  Sup 
Ot.  190,   (cancellation)  ;    Slegel  v.  Herbine,  148  Pa.  St.  236,  23  Atl.  996,  15  L.  R 


101  JUKISDICTIOX     EMUKACKS     WllOLK     MATTER.  §342 

§  242.     Effect  of  the  Reformed  Procedure  on  the  Doctrine.     .     . 

This  same  grand  principle  is  one  of  the  rundaiiieiital  and  essential 
tiionghts  embodied  in  the  "reformed  system  of  procedure,"  which 
first  appeared  in  1848,  in  the  New  York  (>ode  of  Civil  Procedure, 
has  since  extended  through  so  many  states  and  territories  of  this 
country  and  coh)nies  of  Great  Britain,  and  was  substantially  adopt- 
ed for  England  in  the  "Supreme  Court  of  Judicature  Acts."  That 
s3-stem  of  procedure,  by  combining  the  actions  at  law  and  suits  in 
ecjuity  into  one  "civil  action,"  by  permitting  the  union  of  legal 
and  equitable  primary  rights,  and  interests,  and  causes  of  action 
in  the  one  judicial  proceeding,  and  the  granting  of  legal  and  equit- 
able remedies  in  the  one  judgment,  and  by  the  substitution  of  many 
equity  rules  conceniing  the  prosecution  of  suits  in  place  of  the 
arbitrary  rules  of  the  law  regulating  the  conduct  of  actions,  has 
greatly  enlarged  the  operation  and  increased  the  efficiency  of  the 
general  doctrine  under  discussion.  Wherever  the  true  spirit  of  the 
reformed  procedure  has  been  accepted  and  followed,  the  courts  not 
only  permit  legal  and  equitable  causes  of  action  to  be  joined,  and 
legal  and  equitable  remedies  to  be  prayed  for  and  obtained,  but 
will  grant  purely  legal  reliefs  of  possession,  compensatory  dam- 
ages, pecuniary  recoveries,  and  the  like,  in  addition  to  or  in  place 
of  the  specific  equitable  reliefs  demanded  in  a  great  variety  of  cases 
vrhich  would  not  have  come  within  the  scope  of  the  general  prin- 
ciple as  it  was  regarded  and  acted  upon  by  the  original  equity 
jurisdiction,  and  in  which,  therefore,  a  court  of  equity  would  have 
refrained   from  exercising   such   a  jurisdiction.^ 


SECTION  IV. 

THE    DOCTRINE    THAT    JURISDJCTIOX    EXISTS    IN   ORDER    TO    PRE- 
VENT   A    MULTIPLICITY    OF    SUITS. 

ANALYSIS. 

§  243.  The  doctrine  applies  to  hotli  kinds  of  jurisdiction. 
§  244.  The  questions  to  be  examined  stated. 
§  245.  Four  possible  cases  to  Aviiicli  the  doctrine  may  apply. 
§§   246-248.  "Bills  of  peace"  rationale  of,  and   examples. 
§  248.  Bills   "to  quiet  title"  explained. 

A.  147,  (quietini;  title)  :  Hrock  v.  Perry,  132  Ala.  9.5,  90  Am.  St.  Rep.  890,  31 
South.  517,  (setting  aside  fraiidulent  conveyance)  ;  Fidelity  Tr.  &  G.  Co.  v. 
Kowler  Water  Co.,  113  Fed.  500,  (foreclosure);  Vick  v.  Beverly,  112  Ala.  458, 
21    South.    325,    (redemption). 

'Armstrong  v.  Mayer  (Nebr.).  95  N.  W.  51;  Lattin  v.  McCarty,  41  N.  Y.  107, 
109,   110;   Henderson   v.   Dickey,   50   .Mo.    101,    105. 


§  245  EQUITY     JUUISPUUUENCE.  103 

■S§  240-251.  Rationale  of  the  doctriiu'  pxaniiiiod  on  piinciplo. 
*!§  252-261.  Examination  of  the  doctiinc  upon  judicial  autliority. 

§  252.  Fir^t  class. 
§§  253,254.  Second    class. 
§§   255-261.  Third  and  fourth  classes. 

§   256.  C'onnnunity  of  interest:     '"Fisheries  Case";   '"Case  of  the  Duties." 
§  257.  Where    proprietors    of    distinct    tracts    of    huid    have    been    injured 

by  one   wrong. 
§   258.   Where    proprietors    of    distinct    tracts    of    hmd    have    been    relieved 
from    illegal    local    assessments. 
^§   259,260.  General  rule  as  to  relief  from  illegal  taxes,  assessments,  and  public 
burdens,  on  the  ground  of  multiplicity  of  suits. 
§  261.  Other  special  ca.ses  of  the  third  and  fourth  classes. 
§§   262-206.  Examination    of    ojiposing    decisions;     conclusions    reached    by    such 
decisions. 
§  263.   In  the  first  and  second  classes. 
§§   264-266.    In  the  third  and  fourth  classes. 
§§  265,266.  In  cases  of  illegal  taxes  and  other  public  Ituidens. 
SS  267-270.  Conclusions  derived  from  the  entire  discussion. 
S§   268-270.  Ditto  as  to  the  third  and  fourth  classes. 

§§  271-274.  J^numeraiion   of  cases   in   which   the  jurisdiction  to  avoid  a   multi- 
plicity  of   suits   has   been   exercised. 
i  §  271.  Cases  of  the  first  class. 

1  §  272.  Cases  of  the  second  class. 

§  273.  Cases  of  the  third  class. 
g  274.  Cases  of  the  fourth  class. 
§  275.  The  jurisdiction  based  upon  statute. 

§  243.     Applies   to   Both   Kinds   of   Jurisdiction. — 

§  245.     Possible  Conditions  in  Which  the  Doctrine  may  Apply. — 

It  will  aid  us  in  reaehinii"  the  true  theory  as  well  as  in  determinino- 
the  extent  and  limitations  of  the  doctrine,  if  we  can  fix  at  the  out- 
set all  the  possible  conditions  in  which  a  multiplicity  of  suits  can 
arise,  and  can  thus  furnish  a  source  of  or  occasion  for 
the  equity  jurisdiction  in  their  prevention  by  settling-  'all  the 
controversy  and  all  the  ri.o:hts  in  one  singie  judicial  proceeding. 
All  these  possible  conditions  may  be  reduced  to  the  four  following 
classes:  1.  Where,  from  the  nature  of  the  wrong,  and  from  the 
settled  rules  of  the  legal  procedure,  the  same  injured  party,  in 
order  to  obtain  all  the  relief  to  which  he  is  justly  entitled,  is 
obliged  to  bring  a  number  of  actions  asrainst  the  same  wrong-doer, 
all  growing  out  of  the  one  wrongful  act  and  involving  similar 
<|uestions  of  fact  and  of  law.  To  this  class  would  belong  cases  of 
nuisance,  waste,  continued  trespass,  and  the  like.  2.  Where  the 
dispute  is  between  two  individuals.  A  and  B,  and  B  institutes  or 
is  about  to  institute  a  number  of  actions  either  successively  or 
simultaneously  against  A,  all  depending  upon  the  same  legal  ques- 
tions and  similar  issues  of  fact,  and  A  by  a  single  equitable  suit 
seeks  to  bring  them  all  Avitliin  the  scope  and  effect  of  one  judicial 


103  TO     I'KKVKNT     A     ML'LTII'LR'ITY     Or     SUITS.  §  246 

deterniiiiation.  A  familiar  example  of  one  branch  of  this  class  is 
the  ease  where  B  has  brought  repeated  actions  of  ejectment  to  re- 
cover the  same  tract  of  land  in  A's  possession,  and  A  finally  resorts 
to  a  suit  in  equit}'  by  which  his  own  title  is  finally  established  and 
quieted,  and  all  further  actions  of  ejectment  by  B  are  enjoined. 
ii.  AVhere  a  number  of  persons  have  separate  and  individual  claims 
and  rights  of  action  against  the  same  party,  A,  bnt  all  arise  from 
some  conunon  cause,  are  governed  by  the  same  legal  rule,  and 
involve  similar  facts,  and  the  whol^  matter  might  be  settled  in  a 
single  suit  brought  by  all  these  persons  uniting  as  co-plaintiffs,  or 
one  of  the  persons  suing  on  behalf  of  the  others,  or  even  by  one 
l)erson  suing  for  himself  alone. ^  The  case  of  several  owners  of 
distinct  parcels  of  land  upon  which  the  same  illegal  assessment  or 
tax  has  been  laid  in  an  example  of  this  class.  4.  Where  the  same 
party,  A.  has  or  claims  to  have  some  common  right  against  a  num- 
ber of  persons,  the  establishment  of  which  would  regularly  require 
a  separate  action  brought  by  him  against  each  of  these  persons,  or 
brought  by  each  of  them  against  him,  and  instead  thereof  he  might 
procure  the  whole  to  be  determined  in  one  suit  brought  by  him- 
self against  all  the  adverse  claimants  as  co-defendants.  It  should 
he  observed  in  this  connection  that  the  prevention  of  a  multiplicity 
of  suits  as  a  ground  for  the  equity  jurisdiction  does  not  mean  the 
complete  and  absolute  interdiction  or  prevention  of  any  litigation 
concerning  the  matters  in  dispute,  but  the  substitution  of  one 
equitable  suit  in  place  of  the  other  kinds  of  judicial  proceeding,  by 
means  of  which  the  entire  controversy  may  be  finally  decided.  .  . 
§  246.  Bills  of  Peace. — The  earliest  instances  in  which  the  I'ourt 
of  chancery  exercised  its  jurisdiction,  avowedly  upon  the  ground 
of  preventing  a  multiplicity  of  suits,  appear  to  have  been  called 
"bills  of  peace."  of  which  there  were  two  distinct  kinds.  One 
of  these  was  brought  to  establish  a  general  right  between  a  single 
party  on  the  one  side,  and  numerous  persons  claiming  distinct  and 
individuid  interests  on  the  other,  plainly  corresponding,  in  part  at 
least,  with  the  third  and  fourth  classes  mentioned  in  the  preceding 
paragraph.  The  other  kind  was  permitted  to  quiet  the  complain- 
ant's title  to  and  possession  of  land,  and  to  restrain  any  further 
actions  of  ejectment  to  recover  the  premises  by  a  single  adverse 
claimant,  after  several  successive  actions  had  already  been  prosecut- 

^  The  jurisdiHion  under  discussion  should  unl  he  confuspd  with  tliat  which  ex- 
ists to  ap]>(irtiou  i\  fund  ratably  anionii'  several  plaintiffs  havin<i  claims  upon 
the  fund.  In  that  ease  there  is,  of  course,  no  necessity  that  the  claims  should  be 
governed  by  tlie  same  lejjal  rule,  or  involve  similar  facts;  they  may  be  not  only 
distinct  but  entirely  difTerent.  For  examples,  see  Pfohl  v.  Simpson,  74  N.  Y. 
137;    Snowden  v.  Ceneral  Dispensary,  HO  Md.  85. 


§  248  EQUITY    JURISPKUDEXCE,  104 

ed  without  success,  on  the  ground  that  the  title  could  never  be 
iinaUy  established  by  an  indefinite  repetition  of  such  legal  actions, 
and  justice  demanded  that  complainant  should  be  protected  against 
vexatious  litigation.  This  form  of  the  original  bill  of  peace  cor- 
responds to  the  first  branch  of  the  second  class  described  in  the 
preceding  paragraph. 

§  247.  One  of  the  most  frecjuent  purposes  of  such  suits  to  es- 
tablish a  general  right,  in  earlier  periods,  seems  to  have  been  the 
ascertaining  and  settling  the  customs  of  a  manor,  where  they  were 
in  dispute  between  the  lord  of  a  manor  and  his  tenants  or  copy- 
holders, or  between  the  tenants  of  two  different  manors.  A  bill 
might  be  filed  on  behalf  of  the  whole  body  of  tenants  or  copy- 
holders of  a  particular  manor  against  their  lord,  or  perhaps 
against  the  lord  or  tenants  of  another  manor;  or  it  might  be 
filed  by  the  lord  himself  against  his  tenants;  and  by  the  decree 
in  such  suit,  questions  concerning  various  rights  of  common,  or 
concerning  fines  or  other  services  due  to  the  lord,  or  other  like 
matters  affecting  all  the  parties,  could  be  finally  established,  which 
would  otherwise  require  perhaps  a  multitude  of  individual  actions. 
From  this  early  purpose  the  jurisdiction  Avas  easily  extended  so  as 
to  embrace  a  great  number  of  diff'erent  but  analogous  objects.^ 

§  248.  Bills  of  Quiet  Title. — The  grounds  and  purposes  of  the 
second  form  of  the  "bill  of  peace,"  as  it  was  originally  adopted, 
are  very  clearly  stated  by  Lord  Kedesdale  in  his  well-known  and 
authoritative  treatise  upon  equity  pleadings:  "In  many  eases, 
the  courts  of  ordinary  jurisdiction  admit,  at  least  for  a  certain 
time,  of  repeated  attempts  to  litigate  the  same  question.  To  put 
an  end  to  the  oppression  oeca.sioned  by  the  abuse  of  this  privilege, 
the  courts  of  equity  have  assumed  a  jurisdiction.  Thus  actions  of 
ejectment,  which,  as  noAv  used,  are  not  part  of  the  old  law,  have 
become  the  usual  mode  of  trying  titles  at  the  common  law,  and 
judgments  in  those  actions  not  being  conclusive,  the  court,  of 
chancery  has  interfered,  and  after  repeated  trials  and  satisfaett»ry 
determinations'  of  the  question,  has  granted  perpetual  injunctions 
to  restrain  further  litigation,  and  thus  has  in  some  degree  put  that 
restraint  upon  litigation  which  was  the  policy  of  the  ancient  law 
in   real   actions."^ 

'How  V.  Tenants  of  Bromsgrovp.  1  Vein.  22.  2  Ames  Eq.  Jnr.  .5.5.  1  Keener  11.3; 
Powell  V.  Powis,  1  Lon.  £  Jer.  159,  1  Keener  170. 

'Mitford's  (Lord  Redesdale)  Eq.  PI.  143,  144;  1  Spence's  Eq.  Jur.  6.58.  See 
Sharon  v.  Tucker,  144  U.  S.  542.  12  Sup.  Ct.  720,  1  Keener  302.  Sh.  47,  per  Field, 
J.  as  to  the  two  forms  of  the  hill  of  peace.  This  particular  exercise  of  its  juris- 
diction was  not  finally  established  by  the  court  of  chancery  without  a  considerable 
struggle.  In  one  case,  after  five  ejectment  trials,  in  all  of  which  a  verdict  was 
rendered  in  favor  of  the  complainant,  Lord  Chancellor  Cowper  refused  to  interfere 


105  TO     PREVI'INT     A     MULTIPLICITY     OK     SUITS.  §  250 

§  249.     Rationale  of  the  Doctrine  on  Principle. 

§  250.  In  the  first  place,  and  as  a  fundamental  proposition,  it 
is  plain  that  prevention  of  a  multiplicity  of  suits  is  not,  considered 
by  itself  alone,  an  independent  source  or  occasion  of  jurisdiction 
in  such  a  sense  that  it  can  create  a  cause  of  action  where  none 
at  all  otherwise  existed.  In  other  words,  a  court  of  equity  cannot 
exercise  its  jurisdiction  for  the  purpose  of  preventing:  a  multi- 
plicity of  suits  in  cases  where  the  plaintid'  invoking'  such  jurisdic- 
tion has  not  any  prior  existing  cause  of  action,  either  ecpiitable 
or  legal;  has  not  any  prior  existing  right  to  some  relief,  either 
equitable  or  legal. ^  The  very  object  of  preventing  a  multiplicity 
of  suits  assumes  that  there  are  relations  between  the  parties  out 
of  which  other  litigations  of  some  form  might  arise.  But  this  prior 
existing  cause  of  action,  this  existing  right  to  some  relief,  of  the 
]i1aintifl'  need  not  be  equitable  in  its  nature.  Indeed,  in  the  great 
majority  of  cases  in  which  the  jurisdiction  has  been  exercised,  the 
plaintifiP's  existing  cause  of  action  and  remedial  right  were  purely 
legal ;  and  it  is  because  the  only  legal  remedy  which  he  could  obtain 
Avas  clearly  inaderiuate  to  meet  the  demands  of  justice,  partly  from 
its  own  inherent  imperfect  nature,  and  partly  from  its  recpiiring 
a  number  of  simultaneous  or  successive  actions  at  law\  that  a  court 
of  equity  is  competent  to  assume  or  exercise  its  jurisdiction.  It 
follows  as  a  necessary  consequence— and  this  point  is  one  of  great 
importance  to  an  accurate  conception  of  the  whole  doctrine — that 
the  existing  legal  relief  to  which  the  plaintiff  who  invokes  the 
aid  of  equity  is  already  entitled  7iced  not  he  of  tlie  same  l-ind  as  that 
ivhicli  he  demands  and  obtains  from  a,  court  of  equity;  on  the  contrary, 
it  may  be,  and  often  is,  an  entirely  different  species  of  remedy.- 
One  example  will  sufficiently  illustrate  this  most  important  con- 
clusion. The  facts  constituting  the  relations  of  the  parties  might 
be  such  that  the   only  existing  right  to  legal  relief  of  the  single 

and  restrain  fnrther  actions  at  law;  but  his  decree  was  reversed  and  set  aside  on 
appeal  by  the  House  of  Lords:  Earl  of  Bath  v.  Sherwin.  Prec.  Ch.  201,  10  ^Mod. 
1,  1  Brown  Pari.  Cas.  2(56,  270.  2  Brown  Pari.  Cas.,  Tonilins's  ed.,  217,  4  Brown 
Pari.  Cas.  37.3,  2  Ames  Eq.  .Tur.  0.5.  1  Keener  1.53. 

'  "If  a  party — to  give  an  illustration — be  brought  to  the  bar  of  a  law 
court  in  forty  separate  actions  of  ejectment  for  as  many  distinct  parcels  of 
land,  by  the  same  plaintiff,  upon  identical  facts  in  each  case,  he  could  not 
invoke  the  jurisdiction  of  eqiuty  to  a  prevention  of  a  multiplicity  of  suits  if 
he  were  a  mere  naked  trespasser  and  wrongdoer  in  respect  to  the  lands  severally 
sued  for;  had  no  title,  legal  or  equitable,  no  right  to  the  possession,  no  defense 
to  any  of  tlie  actions.  He  can  not  invoke  c(]uity  merely  to  have  his  wrong- 
doing adjudged  in  one  suit  instead  of  forty."  Turner  v.  City  of  jMobile,  13.5 
Ala.   73,   33   ^outh.    133,    141. 

-The  remedy  most  frequently  obtained  is  injunction;  see  post,  §201,  note. 


§  251  EQUITY    JURISPRUDENCE.  KlG 

plaintiff  against  the  wrong-doer  is  that  of  recovering  amounts  of 
damages  by  successive  actions  at  law;  or  the  only  existing'  right 
to  legal  relief  of  each  one  of  numerous  plaintiff's  having  some  com- 
mon bond  of  union  is  that  of  recovering  damages  in  a  separate 
action  at  law  against  the  same  wrong-doer;  while  the  equitable 
relief  which  might  be  obtained  by  the  single  plaintiff  in  the  one 
case,  or  by  all  the  plaintiff's  united  in  the  other,  might  include  a 
perpetual  injunction,  and  the  rescission,  setting  aside,  and  abate- 
ment of  the  entire  matter  or  transaction  which  caused  the  injury, 
or  the  declaration  and  establishment  of  some  common  right  or  duty 
affecting  all  the  parties.  The  decisions  are  full  of  examples  illus- 
trating this  most  important  feature   of  the   doctrine. 

§  251.  .  .  .  Again,  in  speaking-  of  cases  Avhich  would  fall 
either  in  the  third  or  fourth  class,  Avhere  the  total  controversy  is 
between  a  single  determinate  party  on  the  one  side,  and  a  number 
of  persons,  more  or  less,  on  the  other,  the  proposition  has  been 
stated  in  the  most  general  terms,  that  in  order  to  originate  this 
jurisdiction — namely,  a  bill  of  peace  by  one  plaintiff'  against  num- 
erous defendants — it  is  essential  that  there  be  a  single  claim  of 
right  in  all  (i.  e.,  of  the  defendants)  arising  out  of  some  privifi/ 
or  relationship  with  the  plaintiff*.  If  this  be  true,  it  must  clearly 
be  requisite  also  in  the  class  of  suits  brought  by  or  on  behalf  of 
numerous  plaintiffs  against  one  defendant.^  The  proposition  thus 
quoted  from  a  text-writer  has  been  maintained  by  some  judges; 
but  it  seems  to  be  quite  irreconcilable,  at  all  events  in  its  broad 
generality,  with  numerous  well-considered  and  even  leading  deci- 
sions, both  English  and  American,  made  by  courts  of  the  highest 
ability,  if  any  ordinary  and  eff'ective  meaning  is  given  to  the  word 
"privity."  Suits  have  often  been  sustained  by  a  single  plaintiff' 
against  a  numerous  class  of  defendants,  and,  by  or  on  behalf  of  a 
numerous  class  of  plaintiff's  against  a  single  defendant,  avowedly 
on  the  ground  of  "preventing  a  multiplicity  of  suits,"  where  there 
was  no  relation  existing  between  the  individual  members  of  the 
class  and  their  common  adversarj^  to  which  the  term  "privity'^ 
was  at  all  applicable.  Of  course  there  must  be  some  common  rela- 
tion, some  common  interest,  or  some  common  question,  or  else  the 
decree  of  a  court  of  equity,  and  the  relief  given  by  it  in  The  one 
judicial  proceeding,  covid  not  hy  any  possihUity  avail  to  prevent  the 
multiplicity  of  suits  which  is  the  very  object  of  its  interference.- 
Finally,  it  has  been  stated  in  a  very  positive  manner  in  some  Amer- 
ican decisions,  as  an  e.ssential  recinisite  to  the  existence  or  exercise 

'Adams's   Equity,   200,   6tli    Am.   ed.,   408;    citing   Dilly  v.   Doig,   2   Ves.   486, 
2  Ames  Kq.  Jnr.  58,  1   Keener  117. 
-  .See  post,  §  2G4,  note. 


107  TO     PREVENT     A     ML  LTJrLlClTY     OF     SUITS.  §  2o2 

of  the  jurisdiction  to  prevent  a  multiplicity  of  suits,  that  the  pJaiu- 
titf  who  invokes  the  jurisdiction  of  ecjuity  must  himself  be  the 
pMrty  who  would  be  compelled  to  resort  to  numerous  actions  in 
order  to  obtain  complete  redress,  or  who  would  be  subjected  to 
numerous  actions  by  liis  adversary  party,  unless  the  court  of  equity 
interferes  and  decides  the  Avhole  matter,  and  gives  final  relief  by 
one  decree.^  As  I  have  already  remarked,  this  proposition  may  be 
accepted  as  actually  true  in  cases  belonging  to  the  first  and  to  the 
second  classes,  where  the  controversy  is  always  between  two  single 
and  determinate  parties,  and  the  sole  ground  for  a  court  of  equity 
to  interfere  on  behalf  of  either  is,  that  numerous  actions  at  law  are 
or  must  be  brought  by  one  against  the  other.  But  if  the  same 
rule  were  extended  as  an  essential  requisite  to  eases  belonging  to 
the  third  and  fourth  classes', — and  it  is  in  such  cases  that  it  has 
sometimes  been  applied, — it  would  at  one  blow  overturn  a  long 
line  of  decisions,  both  English  and  American,  which  have  always 
been  regarded  as  authoritative  and  leading.  On  principle,  there- 
fore, the  rule  last  above  stated  cannot  be  regarded  as  a  universal 
one,  controlling  the  exercise  of  the  equitable  jurisdiction  "to  pre- 
vent a  multiplicity  of  suits." 

§  252.  Examination  of  the  Doctrine  upon  Aufhority — First  Class. 
— I  shall  now  examine  the  nature,  extent,  and  limitations  of  the 
general  doctrine  upon  authority.  The  cases  belonging  to  the  first 
class  of  the  arrangement  made  in  a  preceding  paragraph,^  where 
a  court  of  equity  interferes  because  the  plaintiff  would  be  obliged 
to  bring  a  succession,  perhaps  an  indefinite  number,  of  actions  at 
law  in  order  to  obtain  relief  appearing  even  to  be  sufficient  have 
generally  been  cases  of  nuisance,  w^aste,  trespass  to  land,  disputed 
boundaries  involving  acts  of  trespass  by  the  defendant,  and  the 
like,  the  wrong  complained  of  being  in  its  very  nature  continuous. 
Tf  the  plaintiff's'  title  to  the  subject-matter  affected  by  the  wrong 
is  admitted,  a  court  of  equity  will  exercise  its  jurisdiction  at  once, 
and  will  grant  full  relief  to  the  plaintiff,  without  compelling  him 
to  resort  to  a  prior  action  at  law^  Whenever  the  plaintiff's  title  is 
disputed,  the  rule  is  settled  that  he  must,  in  general,  procure  his 
title  to  be  satisfactorily  determined  by  at  least  one  verdict  in  his 
own  favor,  by  at  least  one  successful  trial  at  law,  before  a  court 
of  equity  will  interfere;  but  the  rule  no  longer  requires  any  parti- 
cular number  of  actions  or  trials.  The  reason  for  this  requisite 
is.  that  courts  of  equity  will  not,  in  general,  t)'y  disputed  legal 
titles  to  land.    But  the  rule  is  one  of  expediency  and  policy,  rather 

"  See   post,    §  207,   note. 
'  See  antCj   §  245. 


§  254  EQUITY    JUiaSPKUDEXCE.  l')8 

than  an  essential  condition  and  basis  of  the  equitable  jurisdiction.- 
Jn  addition  to  these  ordinary  cases  of  nuisance  and  similar  con- 
tinuous wrongs  to  property,  there  are  some  other  special  instances 
in  which  a  court  of  equity  has  interfered  and  determined  the 
entire  controversy  by  one  decree,  in  order  to  prevent  a  multiplicity 
of  suits,  where  otherwise  the  i)laintiff  would  be  compelled  to  bring 
several  actions  at  law  against  the  same  adversarj^,  and  with  respect 
to  the  same  subject-matter."' 

§  253.  Second  Class. — The  second  class,  according  to  my  previ- 
ous arrangement,  consists  of  two  branches.  In  the  first  of  these 
the  defendant  has  brought,  or  threatens  to  bring,  successive  actions 
at  law  to  recover  the  same  subject-matter  from  the  plaintiff,  where 
from  the  rules  of  the  legal  procedure  the  title  is  not  determined  by 
a  judgment  in  any  such  action  or  number  of  actions.  This  branch 
has  therefore  been  ordinarily  confined  to  cases  of  successive  actions 
of  ejectment  to  recover  the  same  tract  of  land  from  the  plaintiff. 
It  follows  as  a  matter  of  course  that  equity  will  not  interfere  on 
behalf  of  the  plaintiff",  and  restrain  the  defendant's  proceedings, 
until  the  plaintift''s  title  has  been  sufficiently  established  by  the 
decision  of  at  least  one  action  at  law  in  his  favor.  Indeed,  the 
interference  of  equity  assumes  that  the  plaintiff*'s  legal  right  and 
title  have  been  clearly  determined,  and  it.s  sole  object  is  to  quiet 
that  title  by  preventing  the  continuance  of  a  litigation  at  law  Avhich 
has  become  vexatious  and  oppres,sive,  because  it  is  unnecessary  and 
unavailing.  A  court  of  equity  will  not  therefore  interfere  to  re- 
strain the  defendant's  litigation  as  long  as  the  plaintiff's  title  is 
uncertain.^  And  in  analogous  cases,  not  of  ejectment,  the  court 
will  interfere  and  restrain  the  defendant's  further  prosecution  of 
succes.sive  actions  at  law,  and  will  thus  establish  and  quiet  the 
plaintiff' 's  right,  when  all  the  questions  of  law  and  fact  involved 
in  these  actions  have  already  been  fully  determined  in  the  plain- 
tiff''s  favor  by  some  former  judicial  proceeding  betAveen  the  same 
parties.'- 

§  254.  In  the  second  branch  of  the  same  class  the  single  de- 
fendant   has    brought    a    number    of   simultaneous    actions    at    law 

-See  post,  §§   1.350,  flF.,  1357  ff. 

M^.lack  V.  Shrcvo,  7  X.  J.  Eq.  440.  45?!.  457:  Stovall  v.  :McCiitcheon,  107  Ky. 
577,  02  Am.  St.  Rep.  373.  54  S.  ^^  .  900.  47  L.  R.  A.  287;  but  see  Richmond  v. 
Dubuque,  etc.  R.  R.  Co.,  33  Iowa  422,  4S7.  488. 

'p]arl  of  Bath  v.  Sherwin.  Pree.  Ch.  201,  4  P.ro.  Pari.  C.  373.  2  Ames  Eq.  .Tur. 
«5,  1  Keener  153;  Lord  Tenham  v.  Herbert.  2  Atk.  483.  2  Ames  Eq.  .Tur.  97,  1 
Keener  191;    Marsh  v.  Reed.  10  Oliio  347.  1  Keener  159. 

-Suits  to  enjoin  collection  of  taxes,  where  the  illegality  of  the  tax.  as  respects 
the  plaintiff,  has  already  been  established  at  law:  Paterson.  etc.  R.  R.  v.  Jersey 
City,  9  N.  J.  Eq.  434 ;    Rank  of  Kentucky  v.  Stone,  88  Fed.  383. 


J  09  TO    rUEVENT    A    MULTIPLICITY    OF    SUITS.  §  254 

against  the  plaintilT,  all  depending  upon  similar  facts  and  eircum- 
.stanees,  and  involving  the  same  legal  questions,  so  that  the  deeisiui- 
of  one  would  virtually  be  a  decision  of  all  the  others.  A  court  of 
eciuity  may  then  interfere  and  restrain  the  prosecution  of  these 
actions,  so  that  the  determination  of  all  the  matters  at  issue  between 
the  two  jjarties  may  be  brought  within  the  scope  of  one  judicial 
proceeding  and  one  decree,  and  a  nuiltiplicity  of  suits  may  thereby 
be  prevented.  It  must  be  admitted  that  this  exercise  of  the  equit- 
able jurisdiction  is  somewhat  extraordinary,  since  the  rights  and 
interests  involved  are  wholly  legal,  and  the  substantial  relief  given 
by  the  court  is  also  purely  legal.  It  may  be  assumed,  therefore, 
that  a  court  of  equity  v\dll  not  exercise  jurisdiction  on  this  parti- 
cular ground,  unless  its  interference  is  clearly  necessary  to  promote 
the  ends  of  justice,  and  to  shield  the  plaintiff  from  a  litigation 
which  is  evidently  vexatious.  It  should  be  carefully  observed  that 
a  court  of  equity  does  not  interfere  in  this  class  of  cases  to  restrain 
absolutely  and  completely  any  and  all  trial  and  decision  of  the 
qnestions  presented  by  the  pending  actions  at  law;  it  only  inter- 
venes to  prevent  the  repeated  or  numerous  trials,  and  to  bring  the 
whole  within  the  scope  and  effect  of  one  judicial  investigation  and 
decision.  It  should  also  be  observed  that  if  the  pending  actions 
at  law  are  of  such  a  nature  or  for  such  a  purpose,  that,  according 
to  the  settled  rules  of  the  legal  procedure,  they  may  all  be  con- 
solidated into  one,  and  all  tried  together  by  an  order  of  the  court  in 
which  they  or  some  of  them  are  pending,  then  a-  court  of  equity  will 
not  interfere;  since  the  legal  remedy  of  the  plaintiff  is  complete, 
certain,  and  adequate,  there  is'  no  necessity  for  his  invoking  the 
aid   of  the  e(|uitable  jurisdiction.^ 

'  In  Third  Avenue  R.  R.  v.  :^L^yor  of  N.  Y.,  54  N.  Y.  159,  162,  163.  2  Ames 
Kq.  Jur.  102,  1  Keener  167,  the  city  had  brought  seventy-seven  actions  in  a  jus- 
tice's court  to  recover  penalties  for  violating  a  city  ordinance  concerning  the 
running  of  cars  witliout  a  license,  each  action  for  a  separate  penalty.  All  the 
actions  depended  upon  similar  facts  and  upon  the  same  qiiestion  of  law,  viz., 
whether  the  railroad  was  liable  under  the  ordinance;  and  a  decision  of  one 
Avoukl  virtually  decide  all.  The  company  brought  this  suit  in  equity  to  restrain 
the  prosecution  of  all  these  actions  except  one,  offering  to  abide  the  final  decision 
in  that  one.  The  suit  was  sustained,  and  the  relief  granted,  because  a  justice 
court  had  no  potrrr  In  co)isnJir1(itr  these  aelio)is.  The  decision  was  placed  ex- 
yiressly  upon  the  power  of  equity  to  jrevent  a  multiplicity  of  suits,  and  the  im- 
possibility of  the  plaintiff's  being  relieved  in  any  other  manner  from  a  vexatious 
litigation.  The  case  was  held  to  be  distinguishable  from  West  v.  IMayor.  etc., 
10  Paige,  5^59.  1  Keener  161.  in  which  an  apparently  contrary  decision  was  made, 
because  in  the  Intter  ciise  the  plaintiff.  West,  sought  to  restrain  absolutely  all  the 
actions  which  were  iM'nding  against  him.  1  wonld  add  that  some  of  the  language 
in  the  Chancellor's  opinion  in  West  v.  flavor,  etc.,  goes  much  further  than  the 
disiinction  thus  made,  and  can  hardly  be  reconciled  with  the  decision  of  the  court 
of  appeals;  but  the  decision  in  West  v.  Mayor,  etc.,  is  clearly  distinguishable. 
See.  also.  Halveston.  H.  (^-  S.  A.  Rv.  Co.  v.  Dowe,  70  Tex.  5.  7  S.  W.  .S6*^.  Sh.   44. 


§  255  EQUITY    JURISPKUDENCE.  110 

§  255.  Third  and  Fourth  Classes. — In  pursuing  this  inquiry  into 
tlie  extent  and  limitations  of  the  doctrine,  the  third  and  fourth 
of  my  classes  may  witli  advantage  be  considered  together.  In  the 
third,  a  number  of  persons  have  separate  and  distinct  interests,  but 
still  united  by  some  common  tie,  against  one  determined  party;  and 
these  interests  may  perhaps  be  enforced  by  one  equitable  suit 
brought  by  all  the  persons  joining  as  co-plaintiffs,  or  by  one  suing 
on  behalf  of  himself  and  all  the  others,  or  even  by  one  suing  for 
himself  alone.  The  fourth  is  the  exact  converse  of  the  third.  One 
determined  party  has  a  general  right  against  a  number  of  persons, 
common  to  all  in  some  of  its  features,  but  still  affecting  each 
individually,  and  only  with  respect  to  his  separate,  distinct  inter- 
ests, so  that  each  of  these  persons  has  a  separate  and  distinct  claim 
in  opposition  to  the  asserted  right.  It  is  plain  that  the  same 
fundamental  questions  must  arise  in  both  of  these  classes.  The 
first  and  most  important  question  Avhich  meets  us  is,  What  must  be 
the  character,  the  essential  elements,  and  the  external  form  of  the 
common  right,  claim,  or  interest  held  by  the  number  of  persons 
against  the  single  party  in  the  third  class,  and  by  the  single  party 
against  the  number  of  persons  in  the  fourth  class,  in  order  that  a 
court  of  equity  may  acquire  or  exercise  jurisdiction  for  the  pur- 
pose of  preventing  a  multiplicity  of  suits,  and  may  determine  the 
rights'  of  all  and  give  complete  relief  by  one  decree?  Is  it  necessary 
that  the  common  bond,  element,  or  feature  should  inhere  in  the 
■\'ery  rights,  interests,  or  claims  themselves  "which  subsist  between 
the  body  of  persons  on  the  one  side  and  the  single  party  on  the 
other,  and  should  aflect  the  nature  and  form  of  those  rights,  in- 
terests, or  claims  to  such  an  extent  that  they  create  some  positive 
and  recognized  existing  legal  relation  or  privity  between  the  in- 
dividual members  of  the  group  of  persons,  as  well  as  between 
each  of  them  and  the  single  determined  party  to  whom  they  all 
stand  in  an  adversary  position?  Or  is  it  enough  that  the  common 
bond  or  element  consists  solely  in  the  fact  that  all  the  rights,  in- 
terests, or  claims  subsisting  between  the  body  of  persons  and  the 
single  party  have  arisen  from  the  same  source,  from_  the  same  event, 
or  the  same  transaction,  and  in  the  fact  that  they  all  involve  and 
depend  upon  similar  questions  of  fact  and  the  same  que.stions  of 
law,  so  that  while  the  same  positive  legal  relation  exists  between 
the  single  determined  party  on  the  one  side  and  each  individual  of 
the  body  of  persons  on  the  other,  no  such  legal  relation  exists  be- 
tween the  individual  members  themselves  of  that  body? — as  among 
themselves  their  respective  rights,  interests,  and  claims'  again.st  the 
common  adversary  party,  otherwise  than  above  stated,  are  wholly 
separate  and  distiuel.     .     .     . 


Ill  TO     PREVENT     A    .ML  LTirLlClTY     OE     SUITS.  §  256 

§  256.  Community  of  Interest, — The  two  leading  eases'  are  gen- 
erally known  a.s  "The  Case  of  the  Fisheries,"^  and  "The  Case  of 
the  Duties."-  The  former  was  a  bill  to  restrain  a  large  number  of 
trespassers,  and  to  establish  the  plaintiff's  right  as  against  them. 
The  corporation  had  exercised  and  claimed  an  exclusive  right  of 
fishery  over  an  extent  of  nine  miles  in  the  river  Ouse.  The  defend- 
ants were  numerous  lords  of  manors  and  owners  of  separate  tracts 
of  land  adjacent  to  the  river,  and  each  claimed,  in  opposition  to  the 
city,  an  individual  right  of  fishery  within  the  specified  limits  by 
virtue  of  his  separate  and  distinct  riparian  proprietorship.  Lord 
ITardwicke  sustained  the  bill,  although  the  plaintiff  had  not  estab- 
lished his  exclusive  title  by  any  action  at  law,  and  although  the  claims 
(tf  the  various  defendants  w^ere  thus  wholly  distinct,  and  expressly 
placed  his  decision  upon  the  equitable  jurisdiction  to  prevent  a 
multiplicity  of  suits,  since  otherwise  the  corporation  would  be 
obliged  to  bring  endless  actions  at  law  against  the  individual  tres- 
passers. The  second  case  was  brought  to  establish  the  right  of  the 
city  of  London  to  a  duty  payable  by  all  merchants  importing  a 
certain  article  of  merchandise.  It  has  ordinarily  been  quoted  and 
treated  as  though  it  was  a  bill  filed  by  the  city  against  a  number 
of  individual  importers  separately  engaged  in  the  trade,  for  the 
purpose  of  establishing  and  enforcing  the  city's  common  right  to 
the  dut}^  or  tax  in  question.  An  examination  of  the 
record  shows  that  this  is  not  an  accurate  account  of  the  proceeding; 
but  still  the  case  has  generally  been  regarded  as  an  important 
-authority  in  support  of  the  equity  jurisdiction  under  the  circum- 
stances described,  and  such  seems  to  have  been  the  view  taken  of 
it  by  Lord  Hardwicke  in  deciding  the  Fisheries  Case.  There  are 
other  English  decisions  to  the  same  effect,  depending  upon  strictly 
analogous  facts,  and  involving  the  same  doctrine,  which  are  re- 
ferred  to   in   the   foot-note.^     .     .     .     The   other   English    decisions 

^  Mayor  of   York  v.   Pilkington,  1  Atk.  282,  2  Ames  Eq.  .Tur.  55,  1   Keener  114. 

"City  of  Loudon  v.  Perkins,  3  Brown  Pari.  C,  Tomlins's  ed.,  602. 

"  The  doctrine  was  applied  under  analogous  circumstances  in  the  case  of 
Sheffield  \Yater  Works  v.  Yeomans,  L.  R.  2  Ch.  8,  11,  2  Ames  Eq.  Jur.  67,  1 
Keener  130,  Sh.  39.  A  reservoir  of  tlie  water  company  had  burst,  and  damaged  a 
large  nund^er  of  persons.  Under  a  special  statute,  commissioners  were  appointed 
to  examine  the  claims  of  all  tliese  persons,  and  to  give  a  certificate  to  each  one 
whose  claim  was  satisfactorily  proved.  l]ach  certificate  would  be  prima  facie 
a  legal  demand  against  the  company  for  the  amount  of  the  damage  certified  in 
it ;  but  to  enforce  such  certificate,  each  holder  must  bring  an  action  at  law. 
The  commissioners  issued  a  large  number  of  certificates,  and  among  them  a  cer- 
tain class,  fifteen  hundred  in  nund)er,  whicli  the  company  claimed  to  be  illegal. 
To  avoid  the  multiplicity  of  actions  against  itself  on  these  certificates,  the  com- 
pany brought  this  suit  in  equity  against  certain  of  the  holders  sued  on  behalf  of 
^11  the  others,  praying  to   have  the  certificates  adjudged   invalid,   and   canceled. 


§  257  EQUITY    JURISrRUDEXCE.  11^ 

very  clearly  do  not  require  any  privitij  between  the  members  of  the 
numerous  body,  nor  any  common  element  or  feature  inhering  in  the 
very  nature  of  their  individual  interests  as  between  themselves'. 

§  257.  Distinct  Proprietors  Injured  by  One  Wrong. — There  is 
another  important  group  of  cases,  presenting  on  their  face  a  xevy 
ditferent  condition  of  facts,  which  illustrate  the  ([uestion  as  to  the 
communit}^  of  interests  which  must  subsist  among  the  individuals 
of  a  numerous  body  of  persons  in  opposition  to  a  single  party,  in 
order  that  a  court  of  equity  may  take  jurisdiction,  and  grant  them 
relief  upon  the  ground  of  preventing  a  multiplicity  of  suits.  These 
are  the  cases  in  which  a  number  of  individual  proprietors  of  sepa- 
rate and  distinct  parcels  of  land  have  all  been  interfered  with  and 
injured  in  the  same  general  manner,  with  respect  to  their  particular 
lands,  by  a  private  nuisance,  so  that  they  all  have  a  similar  claim 
for  legal  redress  against  the  author  of  the  nuisances.  As,  for 
example,  where  a  number  of  different  owners  have  separate  mills 
and  water-powers'  along  the  banks  of  a  stream,  and  some  party 
wrongfully  erects  a  dam  or  diverts  the  water,  and  by  this  unlaw- 
ful  act  the  property  rights  of  each  owner  are  injuriously  aifected 
in  the  same  general  manner,  although  in  unequal  amounts.  The 
instances  are  numerous  in  which  courts  of  equity  have  interfered, 
under  these  and  analogous  circumstances,  avowedly  on  the  ground 
of  preventing  a  multiplicity  of  suits,  and  have  given  complete  relief 
to  all  the  injured  proprietors  by  a  single  decree.^    The  cases  of  this 

Here  was  no  conmuinity  of  right  or  of  interest  in  tlie  subject  matter  among  these 
fifteen  hundred  certificate  liolders.  In  the  form  in  which  tlieir  demands  existed, 
they  did  not  all  arise  from  the  one  wrongful  act  of  the  water  company.  Each 
holder's  demand  and  separate  right  arose  solely  froui  the  dealings  of  the  com- 
missioners with  him  individually.  The  onlj'  community  of  interest  among  them 
was  in  the  question  of  law  at  issue  upon  wliicii  all  their  rights  depended,  and  in 
the  same  remedy  to  which  each  might  be  entitled.  Tlie  suit  was  sustained  on 
demurrer  first  by  Kindersly,  V.  C,  and  on  appeal  by  Chelmsford,  L.  C.  The 
latter  said :  "Strictly  speaking,  this  is  not  a  bill  of  peace,  as  the  rights  of  the 
claimants  under  the  alleged  certificates  are  not  identical;  but  it  appears  to  me 
to  be  within  the  principle  of  bills  of  this  description.  The  rights  of  the  numer- 
ous claimants  (certificate  liolders)  all  depend  upon  the  same  question.  .  .  . 
It  seems  to  me  to  be  a  very  fit  case,  by  analogy,  at  least,  to  a  bill  of  peace,  for 
a  court  of  equity  to  interpose  and  prevent  unnecessary  litigation,"  etc.  This 
case  certainly  cannot  be  reconciled  with  the  theory,  maintained  by  some  of  the 
American  courts,  that  there  must  be  a  common  interest  in  the  subject-matter, 
or  a  common  title  among  the  numerous  body  of  claimants,  in  order  that  a  court 
of  equity  may  interfere  by  such  suit. 

'In  Cadigan  v.  Brown,  120  IMass.  493.  49.5.  1  Keener  189,  the  plaintiffs  Avere 
iniFividual  owners  of  separate  lots  abutting  on  a  passage-way,  each  holding  un- 
der a  distinct  title  from  a  different  grantor.  Defendant  began  an  ei'ection  whicb 
would  permanently  block  up  the  passage  and  interfere  with  each  plaintiff's  right 
of  way,  and  Mas  therefore  a  nuisance.     The  plaintiffs  brought  this   suit   to  re- 


113  TO    PREVENT     A    MULTIPLICITY     OF     SUITS.  §  257 

group  are  exceediiiiily  important  in  their  bearing  upon  the  question 
nnder  examination  as  to  the  true  meaning  and  extent  of  the  doe- 
trine  concerning  the  prevention  of  a  multiplicit}'  of  suits.  At  hiw, 
the  only  remedy  was  an  action  for  damages  by  each  owner  against 
the  author  of  the  nuisance  or  trespass.  It  cannot  be  pretended 
that  there  existed  among  the  various  owners  with  respect  to  each 
other,  or  as  between  their  entire  body  and  the  defendant,  any  com- 
mon bond  or  interest  to  which  the  term  "privity"  can  be  applied, 
or  Avhieh  bore  the  slightest  resemblance  to  any  species  of  privity. 
In  fact,  there  did  not  exist  among  them  as  individual  owners,  or 
between  them  as  a  body  and  the  defendant,  any  distinct  legal  rela- 
tion whatever  which  the  law  recognizes.  The  only  common  bond 
among  them  as  individuals,  or  between  them  as  a  body  and  the 
defendant,  consisted  in  the  fact  that  they  each  and  all  suffered  the 
same  kind  of  wrong  to  their  separate  properties,  arising  at  the  same 
lime  and  from  the  same  tortious  act  of  the  defendant,  and  in  the 
fact  that  the  legal  causes  of  action  and  remedial  rights  of  each  and 
all  were  the  same,  depending  upon  similar  matters  of  fact  and  the 
same  rules  of  law.  They  were  in  exactly  the  same  position  as  that 
of  any  body  of  men.  who  have  all  separately  and  individually  suf- 
fered the  same  kind  of  injury  to  their  persons  or  their  properties 
b}^  one  trespass  or  other  wrongful  act ;  only  in  their  cases  the  sub- 
ject-matter which  directly  received  the  injury — the  parcels  of  land 
--and  the  wrong  itself — the  nuisance  or  continued  trespass — were 
of  such  a  nature  as  brought  them  within  the  possible  jurisdiction  of 
equity,  since  a  court  of  equity  could  never  take  jurisdiction  in  a 
ease  of  mere  wrong  to  the  persons  or  the  reputation  of  the  injured 
parties.     And  yet  in  each  decision  it  was  expressly  held  that  there 

strain  the  further  erection,  and  to  remove  the  obstruction.  Held,  that  the  suit 
should  be  sustained,  and  that  all  the  plaintiffs  could  join  in  one  suit  in  equity 
on  the  ground  of  preventing  a  multiplicity  of  suits,  since  at  law  each  owner  nnist 
bring  a  separate  action.  "The  plaintitls,  although  they  hold  their  right  under 
separate  titles,  have  a  common  interest  in  the  subject  of  the  hill.  They  are  aflFec- 
ted  in  the  same  Avay  bj'  the  acts  of  the  defendant,  and  seek  the  same  remedy 
against  him.  The  rights  of  all  parties  can  be  adjusted  in  one  decree,  and  a  multi- 
plicity of  suits  is  prevented."  In  Ballon  v.  Inhabitants  of  Hopkinton,  4  Gray, 
324,  328,  1  Keener  174,  the  plaintiffs  were  individual  owners  of  separate  mills 
on  the  banks  of  a  stream,  and  each  drew  a  supply  of  water  for  his  own  mill  from 
a  dam  higher  up  on  the  stream,  which  had  been  built  by  all  of  these  proprietors. 
The  defendants  had  begun  to  draw  water  from  this  dam,  not  removing  or  in  any 
way  interfering  with  the  structure  itself,  but  simply  diverting  the  water,  so  that 
the  supply  for  e.ich  mill  was  lessened,  and  might  be  rendered  insufficient.  It 
was  held  that  the  plaintiffs  could  join  in  one  equity  suit,  and  resti-ain  the  de- 
fendants by  injiir:"tion.  in  order  to  prevent  a  multiplicity  of  suits.  Erecting 
a  wooden  building  within  the  fire  limits  of  a  town.  First  Nat.  Bank  v.   Sarlls, 

129  Ind.  201,  28  Am.  St.  Eep.  185,  28  N.  E.  434.  13  L.  R.  A.  401. 
8 


§  258  EQUITY    JUUlSPliUDEXCE.  114 

was  a  sufficient  community  of  interest  in  the  subject-matter  of  the 
suit  to  enable  a  court  of  equity  to  exercise  its  jurisdiction  on  be- 
half of  the  united  plaintiff's.  The  conclusion,  therefore,  seems  to 
me  irresistible,  that  this  group  of  decisions  cannot  be  reconciled 
with  that  theory  of  the  jurisdiction  which  requires,  in  cases  of  the 
tliird  and  fourth  classes,  a  privity  of  interest  or  common  legal  rela- 
tion existing  among  all  the  individuals  of  the  body  of  persons  who 
assert  their  separate  claims  against  a  single  adversary  party,  in 
order  that  a  court  of  equity  may  interfere  on  their  united  behalf 
against  him.  or  on  his  behalf  against  them.- 

§  258.  Distinct  .Proprietors  from  Local  Assessments. — I  pass  now 
to  consider  another  and  even  more  interesting  group  of  cases, 
which  chiefly  belong,  with  one  or  two  exceptions,  to  the  judicial 
history  of  this  country,  and  in  which  more  than  in  any  other  has 
arisen  the  direct  conflict  of  judicial  opinion  already  mentioned.  I 
refer  to  cases  brought  by  or  on  behalf  of  a  body  of  individual  tax- 
payers or  owners'  of  distinct  tracts  of  lands  to  be  relieved  from 
illegal  assessments  upon  their  separate  properties,  made  b.y  muni- 
cipal corporations  to  defray  the  expense  of  local  improvements;  or 
from  general  taxes,  either  personal  or  made  liens  on  property,  un- 
lawfully assessed  and  levied  by  counties,  towns,  or  cities 

^  Ft  may,  perliaps,  be  said,  in  explanation  of  the  judicial  action  in  this  grtni]) 
of  cases,  that  on  account  of  the  continuoxis  nature  of  the  wrong — the  nuisance 
or  trespass — each  separate  owner,  in  addition  to  his  actions  at  law  for  damages, 
Avould  be  entitled  to  maintain  a  separate  suit  in  equity  on  his  own  behalf,  and 
thereby  restrain  the  furtiier  wrong.  It  would  be  enough  to  answer  that  in  no 
instance  was  the  decision  ))ut  upon  any  such  ground.  In  every  instance  the  court 
rested  its  decree  upon  the  broad  ground  that  the  legal  remedies  of  the  indivi- 
dual plaintifl's  Avere  imperfect,  and  that  as  there  was  a  sufficient  community  of 
interest  in  the  subject-matter  among  them,  they  could  properly  unite  in  the  sin- 
gle equitable  proceeding,  in  order  to  prevent  a  multiplicity  of  suits.  But  even 
admitting  the  facts  above  stated  to  their  fullest  extent,  they  do  not  in  the  slight- 
est degree  alter  or  aflfect  the  conclusions  reached  in  the  text,  nor  furnish  any 
diflferent- explanation  of  the  action  of  the  courts  in  exercising  their  jurisdiction. 
Even  if  each  individual  plaintiff  would  have  had  a  right  to  equitable  relief  as 
well  as  to  legal  relief  of  damages,  the  equitable  jurisdiction  to  prevent  a  multi- 
plicity of  suits  is  never  made  to  rest  iipon  the  particular  hind  or  extent  of  relief 
which  an  individual  party  might  otherwise  have  obtained  in  a  separate  suit.  It 
always  assumes  that  some  relief,  either  legal  or  equitable,  could  have  been  thus 
obtained;  and  the  onlv  question,  in  cases  of  the  third  and  fourth  classes,  is, 
whether  there  is  a  sufficient  conmion  bond  among  the  body  of  similarly  situated 
persons  on  the  one  side  of  the  controversy  to  authorize  the  court  to  intefere  and 
give  complete  relief  to  them  or  against  them  all  in  one  proceeding,  and  thus  avoid 
a   multiplicity  of  suits. 

This  identity  between  the  rules  as  to  joinder  in  all  other  equity  actions,  and 
the  rules  as  to  joinder  which,  as  the  author  sliows.  giiide  the  exercise  of  the  juris- 
diction in  bills  of  peace,  is  clearly  recognized  in  Lehigh  Valley  R.  R.  Co.  v. 
McFarlan.   31    X.   J.   Eq.   730,   75!).    1    Keener's   Cas.   Eq.   Jur.    133. 


115  TO     PREVENT     A     MULTIPLICITY     OF     SUITS.  §  2GU 

§259.    Relief  from  Illegal  Taxes  and  Other  Public  Burdens  in 
General. — 

§  260.  .  .  .  Assessments  for  local  improvements  by  municipal 
corporations  are  generally  made  a  lien  upon  the  lands  declared  to 
be  benefited  thereby;  and  where  such  is  the  case,  the  instances  are 
numerous  in  which  suits  in  equity  brought  by  a  number  of  indi- 
vidual owners  of  separate  lots,  or  by  one  owner  suing  on  behalf  of 
himself  and  all  the  others  similarly  situated,  to  procure  the  enforce- 
ment and  collection  of  the  assessment  to  be  enjoined,  and  the  assess- 
ment itself  to  be  set  aside  and  annulled  on  account  of  its  illegality, 
liave  been  sustained  upon  the  avowed  ground  that  such  relief  grant- 
ed in  a  single  proceeding  was  both  proper  and  necessary  in  order 
to  prevent  a  multiplicity  of  suits.  In  all  these  cases  each  separate 
land-owner  had,  of  course,  some  kind  of  legal  remedy,  either  by 
action  for  damages  against  the  officer  enforcing  the  unlawful  col- 
lection, or  by  writ  of  certiorari  to  review  the  assessment  itself.  But 
&iich  remedy  was  inadequate  when  compared  with  the  comprehen- 
sive and  complete  relief  furnished  b^^  the  single  decree  in  equity.^ 
The  jurisdiction  has  been  carried  much  further.  In  a  large  number 
•  of  the  states  the  rule  has  been  settled  in  well-considered  and  often- 
repeated  adjudications  by  courts  of  the  highest  character  for  ability 
and  learning,  that  a  suit  in  equity  will  be  sustained  when  brought 
by  any  number  of  tax-payers  joined  as  co-plaintiffs,  or  by  one  tax- 
payer suing  on  behalf  of  himself  and  all  others  similarly  situated, 
or  sometimes  even  by  a  single  tax-paj^er  suing  on  his  own  account, 
to  enjoin  the  enforcement  and  collection,  and  to  set  aside  and  annul, 

^  Scofield  V.  City  of  Lansing.  ]7  IMieli.  437,  was  a  bill  filed  by  a  lai'ge  number 
of  owners  of  separate  lots  fronting  on  a  street,  to  enjoin  collection  of  an  illegal 
assessment,  which  was  declared  bj'  statute  to  be  a  lien  on  all  the  lands  assessed. 
Pronouncing  the  assessment  void,  the  court  held  that  the  suit  could  be  sustained 
on  the  ground  that  tJie  questions  to  be  decided  icere  common  to  all  the  plaintiffs, 
and  it  prevented  a  multiplicity  of  suits. 

Dumars  v.  City  of  Denver  (Colo.  App.).  6.5  Pac.  ,580.  "While  void  proceedings 
cast  no  cloud  upon  title  to  real  estate,  and  a  single  individual,  moving  only  in 
his  own  behalf,  and  for  his  own  purposes,  to  restrain  such  proceedings,  will  be 
remitted  to  his  remedy  at  law.  yet  where  a  number  of  persons  are  similarly 
affected,  and  the  rights  of  nil  may  be  adjusted  in  one  proceeding,  a  court  of  equity 
will  asi^ume  jurisdiction,  notwithstanding  there  is  no  cloud  to  remove,  and  the 
ground  of  its  jurisdiction  is  the  prevention  of  a  multiplicity  of  suits.  (Citing 
several  cases,  and  Pom.  Eq.  Jur..  §§  260.  273.)  The  complaint  in  this  case  shows 
that  a  number  of  persons  are  affected  by  the  same  assessment,  and  that  to  de- 
termine their  rights  at  law  would  require  as  many  suits  as  there  are  individuals; 
and  it  also  shows  that,  while  they  have  no  common  ownership  in  the  property 
effected  by  the  assessment,  they  have  a  community  of  interest  in  tlie  questions 
ot  law  and  fact  involved  in  the  controversy,  and  upon  authority  so  over-whel- 
ming as  to  be  practically  unanimous,  the  case  is  one  peculiarly  of  equitable 
cognizance.     tSee,  also,  Pom.  Eq.  .lur..  S  200." 


§  2(i0  EQUITY    JURISPRUDENCE.  11 G 

any  and  every  kind  of  tax  or  assessment  laid  by  countj^  town,  or 
city  authorities,  either  for  general  or  special  purposes,  whether  it 
be  entirely  personal  in  its  nature  and  liabilit}^  or  whether  it  be 
made  a  lien  on  the  property  of  each  tax-payer,  whenever  such  tax 
is  illegal.  ...  In  the  face  of  every  sort  of  objection  urged 
against  a  judicial  interference  with  the  governmental  and  executive 
function  of  taxation,  these  courts  have  uniformly  held  that  the 
legal  remed\'  of  the  individual  tax-payer  against  an  illegal  tax, 
either  by  action  for  damages,  or  perhaps  bj^  certiorari,  was  wholly 
inadequate ;  and  that  to  restrict  him  to  such  imperfect  remedy 
Avould,  in  most  instances,  be  a  substantial  denial  of  justice,  which 
conclusion  is,  in  my  opinion,  unquestionably  true.  The  courts  have 
therefore  sustained  these  equitable  suits,  and  have  granted  the 
relief,  and  have  uniformly  placed  their  decision  upon  the  inherent 
jurisdiction  of  equity  to  interfere  for  the  prevention  of  a  multi- 
plicity of  suits.  The  result  has  demonstrated  the  fact  that  eom- 
I)lete  and  final  relief  may  be  given  to  an  entire  community  by 
means  of  one  judicial  decree,  which  %vould  otherwise  require  an 
indefinite  amoimt  of  separate  litigation  by  individuals,  even  if  it 
were  attainable  by  any  means.-  ...  In  all  these  suits  by  lot- 
owners  to  be  relieved  from  a  local  assessment,  and  by  tax-payers  to 
be  relieved  from  a  tax  or  burden  of  public  debt,  there  is  no  pretense 
of  any  privity,  or  existing  legal  relation,  or  common  property 
or  other  right,  among  the  plaintiffs  individually,  or  between  them 
as  a  body  and  the  defendant.  There  is  no  common  right  of  the 
single  adversary  party  against  them  all,  as  is  found  in  the  case  of 
a  parson  against   his  parishioners  for   tithes,   or  of  the  lord   of  a 

M:;iL-odui)  V.  Franklin  County,  30  Ark.  101;  City  of  Chicago  v.  Collins,  175 
111.  445,  51  N.  E.  907,  67  Am.  «t.  Rep.  224,  49  L.  R.  A.  408,  2  Ames  Eq.  Jur.  92; 
Carlton  v.  Newman,  77  Me.  408,  1  Atl.  194;  McTwiggan  v.  Hunter,  18  R.  I.  77G, 
.SO  Atl.  902,  2  Ames  Cas.  Eq.  Jur.  71.  The  necessity  of  the  jurisdiction  was 
stated  with  great  force  in  the  case  first  cited:  "These  plaintiffs  have  sued  in 
behalf  of  themselves  and  of  the  other  taxpayers  of  the  county;  this  they 
may  do  in  a  court  of  equity.  But  suppose  we  send  them  back  to  a  court 
of  law,  to  assert  their  rights:  we  know  that  at  the  common  law  there  can 
be  no  combination  of  parties;  each  tax-payer  nuist  sue  in  his  own  right  to  re- 
cover the  tax  erroneously  assessed  against  liim.  What  a  multiplicity  of  suits  at 
law  must  be  brought,  in  order  to  get  redress  for  one  injury  which  it  is  proposed 
to  stop  iij  a  single  suit  in  equity;  we  have  no  means  of  ascertaining  the  number 
of  tax-payers  in  Franklin  county,  but  may  suppose  that  they  exceed  two  thousand. 
Of  these  perhaps  five  Innidred  may  be  able  to  assert  tlieir  rights  at  law,  whilst 
fifteen  hundi'ed,  who  jiay  less  tax,  are  in  modern  circumstances  or  too  poor  to 
employ  counsel  to  stoji  the  payment  of  an  erroneous  tax  ten  times  less  than  it 
would  cost  to  employ  coiuisel  to  prosecute  theii-  suit.  Tlie  mere  suggestion  of  the 
situation,  if  left  to  redress  at  law,  shows  that  it  in  efl'ect  would  amount  to  a  de- 
nial of  redress  to  olfer  it  to  tliem.  In  sucli  cases  Chancery  will  interfere  to  prevent 
multiplicity  of  suits." 


11?  TO     PREVENT     A    MULTIPLICITY     OF     SUITS.  §  '-ilil 

manor  against  his  tenants  iur  a  general  fine,  or  for  certain  riglits 
of  common;  nor  is  tliere  any  common  right  or  interest  among  them 
against  tlieir  single  adversary.  The  tnily  community  among  them 
is  in  the  questions  at  issue  to  be  decided  by  the  court ;  in  the  mere 
external  fact  that  all  their  remedial  rights  arose  at  the  same  time, 
from  the  same  wrongful  act,  are  of  the  same  kind,  involve  simihir 
iiueslions  of  fact,  and  depend  upon  the  same  questions  of  law.  This' 
sort  of  community  is  sufficient,  in  the  opinion  of  so  many  and  so 
able  courts,  to  authorize  and  require  the  exercise,  under  such  cir- 
cumstances, of  the  equitable  jurisdiction,  in  order  to  prevent  a 
multiplicity  of  suits. 

§  261.  Other  Specig,!  Cases  of  the  Third  and  Fourth  Classes. 
— There  are  some  other  cases,  belonging  to  the  third  or  fourth 
of  my  general  classes,  which  present  a  special  condition  of  facts, 
and  do  not  admit  of  being  arranged  in  either  of  the  foregoing- 
groups.     I   have   placed   them   in  the   foot-note.^ 

'The  following  cases  will  serve  to  illustrate  the  wide  application  of  the  prin- 
ciple, especially  in  recent  American  decisions. 

Third  class:  Injunction  against  the  enforcement  of  an  invalid  municipal  ordi- 
nance affecting  many  persons.  In  City  of  Chicago  v.  Collins,  175  111.  445,  51  N. 
E.  904,  2  Ames  Cas.  Eq.  Jur.  92,  numerous  residents  and  taxpayers  sued  in  be- 
half of  themselves  and  all  others  similarly  situated  to  enjoin  the  enforcement  of 
an  ordinance  providing  for  the  payment  of  a  license  fee  on  vehicles.  The  court, 
quoting  §  245  of  the  text,  and  upholding  the  injunction,  says  in  part:  "In  this 
case  three  hundred  and  seventy-three  complainants  present  facts  showing  that 
between  200,000  and  300,000  citizens  and  taxpayers  are  affected  by  the  provisions 
of  the  ordinance,  and  if  compelled  to  pay  the  illegal  tax,  hardship  and  injustice 
will  result  to  an  enormous  number  of  persons.  If  they  pay  the  tax  and  are  com- 
pelled to  resort  to  a  court  of  law  to  recover  back  the  amount  so  paid,  the  business 
of  the  courts  will  be  obstructed  by  the  number  of  actions  of  the  same  char- 
acter. Long  delay  Avill  ensue,  and  the  costs  to  tlie  persons  so  paying  such 
illegal  tax  or  license  fee  will  be  greater  than  the  amonut  to  be  recovered." 

Injunction  Against  Trespass,  or  other  \Yrongful  Act  of  the  Defendant,  Affect- 
ins  Numerous  Plaintiffs,  wliere  each  suing  singly  might  have  an  "adequate" 
remedy  at  law:  Numerous  owners  of  fishing  interests  in  a  lake  united  in  a  suit 
to  enjoin  an  unauthorized  and  illegal  act  of  certain  commissioners,  in  open- 
ing a  channel  between  the  lake  and  the  ocean.  It  did  not  appear  that  the  threat- 
ened act  would  cause  any  of  the  plaintiffs  such  damage  as  to  justify  an  injunc- 
tion at  his  single  suit.  "The  |n-incipal.  if  not  the  only,  ground  upon  which  the 
court  can  properly  take  jvirisdiction  in  this  case  is  that  there  are  many  parties 
plaintiff,  all  of  whom,  f^s  land-owners  on  Great  Pond,  have  the  same  rights,  wliich 
can  be  settled  in  one  action  in  equity,  so  as  to  avoid  a  multiplicity  of  suits  at 
Jaw.  Lpon  that  ground  it  seems  to  be  our  duty  to  determine  the  rights  of  the 
parties  in  this  form  of  proceeding."  Smitii  v.  Smith,  148  Mass.  1,  18  N.  E.  595, 
2  Ames  Cas.  Eq.  Jur.  64." 

Pecuniary  Relief  to  Numerous  Plainfifl's. — In  Smith  v.  P.ank  of  New 
England,  69  N.  H.  254,  45  Atl.  1082,  2  Ames  Cas.  Eq.  Jur.  70.  the  holders  of 
numerous  certificates  of  deposit  were  permifted  to  join  in  an  action  charging  tlie 
defendants  with  a  negligent  breach  of  trust  affecting  them  all  alike,  although 


%  26S  EQUITY     .HIvMSJ'KUDKNCE.  11& 

i;  262.     Opposing  Decisions   Examined. 

^  263.     In   the  First   and   Second   Classes. — As   the    doctrine    of 

eacli  plaintiff  might  maintain  his  action  at  law  for  damagi's;  since  the  "ques- 
tion ot  the  tiefendant's  negligence  would  he  exactly  the  same  in  all  the  actions 
and  would  necessarily  be  determined  upon  the  same  evidence."  See  extract 
from  the  opinion  of  the  court,  post,  S  2U7.  note. 

Joinder,  where  Each  of  the  Numerous  IMaintitls  has  an  Equitable  Cause  of 
.Action. — In  addition  to  the  class  of  cases  described  above,  §  257,  see  the  follow- 
ing analogous  cases:  Several  persons  who  by  the  same  fraudulent  misrepre- 
sentations are  induced  to  subscribe  for  stock  in  a  corporation  may  join  in  an 
action  to  set  aside  their  subscriptions  and  recover  moneys  })aid  thereon;  Bosher 
V.  Richmond  H.  Land  Co..  89  Va.  455.  .37  Am.  St.  Rep.  879,  If,  S.  E.  :5(iO. 
in  Brinkerhoff  v.  Brown,  0  Johns.  Ch.  1.S9.  wliich  was  a  bill  by  a  number 
of  individual  judgment  creditors,  having  wholly  distinct  and  separate  judg-^ 
nu^nts  and  demands,  to  reach  the  property  of  their  common  debtor.  Chancellor 
Kent  said  (p.  151):  "The  plaintiffs  are  judgment  creditors  at  law.  seeking 
the  aid  of  this  court  to  I'ender  their  jvidgments  and  executions  effectual  against 
certain  fraudulent  acts  of  their  debtor  equally  affecting  all  of  them.  The 
(piestion  is,  whether  judgment  creditors,  whose  rights  are  established  and  their 
liens  fixed  at  law,  may  not  unite  in  a  bill  to  remove  impediments  to  the  remedy 
created  by  the  fraud  of  the  opposite  ])arty.  It  is  an  ordinary  case  in  this  court 
for  creditors  to  unite,  or  for  one  or  more  on  behalf  of  themselves  and  tlie  rest, 
1o  sue  the  representative  of  the  debtor  in  possession  of  the  assets,  and  to  seek  an 
account  of  the  estate.  This  is  done  to  prevent  a  multiplicity  of  suits,  a  very 
favorite  object  with  this  court."  And  at  page  156:  "A  bill  may  be  filed  against 
several  persons  relative  to  matters  of  the  same  nature,  forming  a  connected 
series  of  acts,  and  all  intended  to  defraud  and  injure  the  plaintiff,  and  in  which 
all  the  defendants  weie  more  or  less  concei'ued,  though  not  jointly,  in  each  act." 
This  opinion  of  Chancellor  Kent  shows  that  the  uniting  of  numerous  distinct 
judgment  creditors,  in  one  creditor's  suit  against  the  same  defendant,  or  the 
suing  by  one  such  creditor  for  himself  and  all  others,  which  has  now  become  so 
familiar  a  mode  of  obtaining  relief,  was  originally  permitted  and  adopted  on  the 
ground  of  preventing  a  nuiltiplicity  of  suits.  Tiiis  fact  is  of  great  importance 
in  illustrating  the  meaning  and  extent  of  that  doctrine;  since  the  bond  of 
union  among  the  separate  creditors  is  their  community  of  interest  in  the  re-^ 
lief  demanded,  in  the  questions  at  issue  and  decided  by  the  court. 

Class  Fourth:  Injunction  again.-^t  Numerous  Defendants  Prosecuting  Suits 
at  Law. — Complainant  claimed  the  right  to  overflow,  by  means  of  its  dam,  the 
lands  of  the  numerous  defendants,  under  a  dedication  by  the  defendant's  pre- 
decessors in  title;  held,  that  it  might  properly  bring  its  bill  to  establish  this 
right  and  enjoin  actions  at  law  for  damages  brought  by  the  defendants,  citing 
tiie  text,  §  268.  The  court  also  indicated  that  it  was  the  pi'oper  practice  in 
such  cases  to  issue  a  temporary  writ  enjoining  each  of  the  defendants  from  further 
])rosecution  of  his  actions  at  law  during  the  pendency  of  the  equitable  action. 
•"No  constitutional  rights  of  defendants  are  taken  away  by  the  mere  post— 
])(>nement  of  their  actions  at  law;  for  if  plaintiff  is  herein  successful  they  are  not 
entitled  to  an  assessment  of  damages,  and  if  unsuccessful  the  actions  at  law  will 
duly  proceed;"  City  of  Albert  Lea  v.  Nielsen,  S3  Minn.  24G,  8()  N.  W.  S:^.  ^n 
National  Park  Bank  v.  Goddard,  62  Hun,  31,  16  N.  Y.  Supp.  343.  2  Ames  Cas. 
Eq.  Jur.  82;  affirmed,  131  N.  Y.  503,  30  N.  E.  566,  1  Keener  Cas.  Eq.  Jur.  142, 
the  plaintiff,  claiming  a  lien  by  attachment  on  a  stock  of  goods,  enjoined  num- 
erous re]ilevin  suits  subsequently  bi'ouglit  for  tlie  recovery-  of  diffcp-nt  portions 


119  TO     PREVENT     A     MULTJI'LICITY     01'     litlTS.  >;  2G3 

preventing  a  multiplicity  of  suits  has  been  firmly  established  Iroiu 
au  early  day,   with  respect  to  the  facts  and  circumstances   which 

of  the  stock  by  numerous  defendants,  jurisdiction  being  taken  on  the  ground 
of  preventing  a  multiplicity  of  suits. 

Injunction  against  Tax  Proceedings  which  involve  the  single  plaintifl"  in 
litigation  with  numerous  parties.  The  situation  in  these  cases  is  the  converse 
of  that  described  in  S§  258-260,  supra.  Where  a  bank  or  other  corporation  is 
required  by  law  to  pay  the  taxes  assessed  on  all  of  its  shares,  and  reimbur.^e 
itself  by  withholding  proportionate  parts  of  the  dividends  fi'oni  its  shareholders, 
it  may  enjoin  an  illegal  tax,  since  its  payment  thereof  would  subject  it  to  a 
suit  by  each  shareholder;  Cummings  v.  Merchants'  Nat.  Bank,  101  U.  S.  ir)3. 
By  the  practice  in  many  of  the  states,  taxes  on  railroad  companies,  telegraph 
companies,  and  the  like  are  assessed  by  a  state  board  on  all  the  property  of  the 
company  within  the  state,  and  proportionate  parts  of  those  taxes  are  certitied 
for  collection  to  the  tax  officials  of  the  various  coimties  in  which  the  comi)any 
operates.  An  illegality  in  the  assessment  by  the  state  board  may  thus  exjjose 
the  company  to  separate  suits  in  many  counties,  and  has  frequently  been  the 
subject  of  an  injunction  on  the  ground  of  preventing  a  multiplicity  of  suits. 
Taylor  v.  Louisville  &   X.  R.  R.   Co..  88   Fed.  350    (C.  C.  A.),  by  Taft.  Cir.  J. 

Cancellation.— In  Louisville  N.  A.  &  C.  R.  Co.  v.  Ohio  Val.  I.  &  C.  Co..  57 
Fed.  42,  45,  the  plaintiff  sued  for  the  cancellation  of  its  guaranty  which  had 
been  indorsed  upon  several  hundred  bonds  issued  by  another  company  illegally 
and  fraudulently.  The  court  Avas  of  the  opinion  that  there  was  an  ade(juate 
defense  at  law  to  a  suit  upon  each  bond,  considered  by  itself,  but  that  the  multi- 
plicity of  suits  threatened,  and  the  common  question  involved  of  the  validity 
of  the  guaranties  and  of  the  contract  in  pursuance  of  which  they  were  made, 
rendered  the  case  one  for  the  exercise  of  its  jurisdiction.  Quoting  §  209  of  the 
text. 

Recovery  of  Specific  Chattels.- — One  of  the  earliest  of  the  American  cases, 
and  one  of  the  most  striking  illustrations  to  be  found  in  the  books,  is  that  of 
Vann  v.  Hargett.  22  N.  C.  (2  Dev.  &  B.  Eq.)  31,  32  Am.  Dec.  680  (183S). 
The  bfll  alleged  that  the  plaintiffs  were  owners  of  a  remainder  interest  in  cer- 
tain slaves;  that  the  life  tenant  had  sold  them,  and  that  the  numerous  defend- 
ants had  possession  of  some  of  the  issue  of  the  slaves,  asserting  an  absolute 
title  therein.  The  prayer  was  that  the  defendants  might  surrender  the  slaves 
or  account  for  their  value,  if  they  had  been  sold.  The  case,  therefore,  presents 
a  clear  illustration  of  the  "concurrent  jurisdiction"  as  defined  by  the  author, 
the  relief  demanded  being  purely  legal  in  its  nature.  The  defendants  demurred 
on  the  ground  that  the  plaintiffs  had  a  remedy  at  law  by  action  of  trover  or 
detinue,  and  on  the  ground  of  multifariousness.  The  opinion  of  Daniel,  J., 
states   the   doctrine   witli    admirable    clearness. 

Pecimiary  Relief  asjainst  Numerous  Defendants. — The  opinion  in  Bailey  v. 
Tiflinghast,  99  Fed.  801,  806.  807  (C  C.  A.),  is  very  instructive.  This  Avas 
a  suit  in  equity  by  the  receiver  of  a  national  bank  against  forty-six  stock- 
holders, for  the  purpose  of  recovering  an  assessment  of  $61  per  share  levied  by 
the  comptroller  of  the  currency  upon  their  personal  liability  on  account  of  the 
stock  held  by  them.  By  Severens,  D.  -T.,  "We  are  clearly  of  the  opinion  that 
the  bill  should  be  maintained  for  the  purpose  of  avoiding  a  multiplicity  of 
suits.  .  .  .  There  is  a  common  question  in  the  case  between  the  receiver  and 
the  defenrlants.  namely,  the  question  whether  the  latter  were  released  from  tlieii 
stock  subscription  by  the  fact  that,  whereas  the  resolution  for  increasiiiL'  th'> 
stock  in  the  sum  of  $300,000  was  that  under  which  their  subscription  took  place, 


§  -JGS  EQUITY    JUiaSTKUDEXCE.  120 

constitute  the  first  and  second  classes,  there  are  no  decisions  which 
positively  deny  the  jurisdiction  or  the  propriety  of  its  exercise 
in  cases  belonging  to  either  of  them 

yet  subsequently  by  proceedings  to  which  they  did  not  consent,  the  proposed 
increase  was  reduced  to  $150,000.  .  .  .  And  these  circumstances,  namely,  the 
great  number  of  the  parties  on  one  side  or  the  other,  the  identity  of  the  ques- 
tion of  law,  and  the  similarity  of  facts  in  the  several  controversies  between 
tlie  respective  parties,  are  the  basis  on  Avhich  the  jurisdiction  rests.  The  object 
is  to  minimize  litigation,  not  only  in  the  interest  of  the  public,  but  also  for  the 
convenience  and  advantage  of  the  parties.  Jf  the  receiver  was  compelled  to  bring 
separate  suits,  it  would  entail  a  vast  expense  upon  the  fund  in  trying  Over  and 
over  again  the  identical  questions  of  law  and  fact  with  each  stockholder,  and 
with  no  substantial  advantage  to  him,  but  injury,  rather,  in  the  increased  cost 
in  tRe  immediate  suit,  and  the  larger  burden  upon  the  fund,  created  by  the 
many  suits  against  the  others.  Nor  is  it  necessary,  as  counsel  seem  to  svippose. 
that  there  shoulil  be  any  ])rivity  of  interest  between  the  stockholders,  other  than 
that  in  the  question  involved  and  the  kind  of  relief  sought,  the  right  of  their 
cla-inis  being  common  to  them  all,  in  order  /  to  bring  the  case  within  the 
jurisdiction  [citing  several  of  the  cases  mentioned  in  this  chapter].  It  is  true 
there  are  occasional  cases  where  it  seems  to  have  been  supposed  that  there  must 
be  some  community  of  interest, — some  tie  between  the  individuals  who  make  up 
the  great  number;  but  the  great  weight  of  authority  is  to  the  contrary,  and 
there  is  a  multitude  of  cases  which  either  in  terms  deny  the  necessity  of  such 
a  fact  or  ignore  it  by  granting  relief  where  the  fact  did  not  exist.  And,  indeed, 
it  is  dillicult  to  tind  any  reason  why  it  should  be  thought  necessary.  It  has  no 
rvlrraucj/  to  the  princij^le  or  purpose  of  the  doclri)ir  itself,  which  stands  not 
merely  as  a  makeweight  when  other  equities  are  present,  but  as  an  independent 
and  substantive  ground  of  jurisdiction." 

Joinder  of  Numerous  Defendants  against  Each  of  Whom  the  Plaintiff  has  a 
Similar  Cause  of, Action  for  Equitable  Relief. — It  has  been  frequently  held  that 
a  riparian  proprietor  may  restrain  several  tort  feasors  from  diverting  or  pol- 
luting the  waters  of  a  stream,  although  they  were  not  acting  in  unity  of  design 
or  witli  coiK-cit  of  action:  Lockwood  Co.  v.  Lawrence.  77  Me.  297,  52  Am.  Rep. 
7(i3,  quoting  §  269  of  the  text.  On  the  same  princi])]e  an  injunction  has  been 
granted  in  a  suit  by  the  owner  of  a  lai-ge  body  of  land,  valuable  only  for  its  pas- 
turage rights  and  privileges,  to  protect  that  right  from  use  by  cattle  and  stock- 
owners,  neighbors  of  the  land  of  complainant,  under  autliority  of  an  unconstitu- 
tional statute:  Smith  v.  Bivens,  50  Fed.  352,  2  Ames  Cas.  Eq.  Jur.  02.  New  York 
&  N.  H.  K.  R.  v.  Schuyler,  17  N.  Y.  502.  1  Keener  118.  was  certainly  one  of  the 
most  remarkable  actions  recorded  in  the  annals  of  litigation.  Schuyler,  the 
treasurer  of  a  railroad  company,  had  during  a  period  of  two  or  three  years 
fraudulently  issued  sj^urious  certificates  of  stock  of  the  company,  until  at  last 
such  certificates  were  scattered  among  about  one  hundred  bona  fide  holders. 
Eacli  fraudulent  issue  was  accomplished  by  a  similar  contrivance  and  similar 
acts  of  deception;  but  each  was,  of  course,  an  entirely  distinct  and  separate 
transaction  from  all  the  others.  The  railroad,  claiming  that  these  certificati-s 
were  null  and  void,  bi-ought  this  suit  against  all  the  holders  for  the  purpose  of 
having  them  surrendered  up  and  canceled.  The  suit  was  sustained  by  analogy 
to  a  bill  of  peace,  in  an  elaborate  opinion  of  the  court  which  is  too  long  for 
quotation.  See  17  N.  Y.  592,  599,  600,  605-608,  34  N.  Y.  30.  44-46.  Here  the 
only  pretense  of  common  intex-est  among  the  certificate-holders  was  in  the  sim- 
ilar questions  of  fact  and  the  same  question  of  law  at  issue  upon  which  all  their 


121  TO     IMiKVKXT     A     MULTIPLICITY     01"     SUITS.  §  2G4: 

§  264.  In  the  Third  and  Fourth  Classes. —  ...  In  these 
cases  the  jurisdietiou  was  denied,  on  the  ground  that  there  was  no 
privity  or  legal  relation  or  eommuuity  of  interest  and  right  among 
tne  individuals  of  the  numerous  body,  which,  it  was  held,  must 
exist  in  order  that  a  court  of  equity  may  interfere,  under  sucli 
circumstances,  for  the  purpose  of  preventing  a  multiplicity  of 
suits'.^     .     .     . 

claims  depended ;    there  was  no  common  title  from  which  these  questions  sprung, 
nor  any  community  of   interest  in  the   subject-matter. 

'  See  Tribette  v.  Illinois  Cent.  R.  Co.,  70  Miss.  182,  12  South.  32,  19  L.  H.  A. 
G60,  35  Am.  St.  Rei^.  642,  2  Ames  Cas.  Eq.  74,  1  Keener  148,  Sh.  3G,  and  criticism 
thereof  in  Pom.  Eq.  Jur.  3d  ed. ;  Marselis  v.  ilorris  Canal  Co.,  1  N.  J.  Eq.  31, 
35-3!),  and  extracts  from  ojiinion  therein.  In  the  latter  case,  many  separate 
owners  of  distinct  tracts  of  land  along  the  line  of  the  defendant's  canal  vuiitcd 
as  plaintiffs,  suing  on  behalf  of  themselves  and  all  others,  etc.,  charging  that  tlie 
defendant  entered  on  their  separate  parcels  of  land  and  dug  a  canal,  without 
permission  or  agreement,  and  without  making  any  compensation;  that  defendant 
was  insolvent.  They  prayed  an  account  of  damages  for  the  injuries  done,  com- 
pensation for  the  lands  taken,  and  an  injnuction  to  restrain  the  defendant 
from  occupying  or  using  their  lands  without  compensation.  Defendant  de- 
murred to  the  whole  bill,  and  plaintiffs  moved  for  a  preliminary  injunction, 
and  the  argument  of  both  came  on  together.  Prof.  Pomeroy  remarks :  In  what- 
ever manner  we  may  regard  the  general  course  and  tendency  of  the  chancellor's 
reasoning  in  this  opinion,  it  is  very  evident  that  the  actual  decifiivn  made  upon 
the  facts  does  not  in  the  slightest  degree  conflict  with  any  of  the  cases  hereto- 
fore quoted,  in  which  the  jurisdiction  has  been  exercised.  The  facts  of  this 
case  clearly  distinguish  it  from  each  and  all  of  them.  Although  on  the  first  su- 
perficial view  there  may  appear  to  be  the  same  commvuiity,  since  the  single  de- 
fendant was  all  the  time  prosecuting  one  enterprise,  viz.,  constructing  its  canal, 
yet  in  the  case  of  each  plaintiff"  there  was  a  separate,  distinct  trespass  upon  his 
land;  the  claim  of  each  land— owner  resulted  from  a  separate  injury  to  his  own 
property,  unconnected  with  the  injuries  done  to  the  others.  This  is  the  vital 
distinction  in  the  facts  which  removes  this  case  from  the  operation  of  the  doc- 
trine. Jn  the  group  of  decisions  where  many  land-owners  have  imited  in  a  suit 
to  restrain  a  trepass  or  a  nuisance,  such  as  a  diversion  of  water  from  their 
mills,  or  an  erection  blocking  up  a  passage  to  all  their  buildings,  tlie  one  wrongful 
act  of  the  defendant,  uno  Hatvi,  did  the  injuiy  complained  of  to  the  land  of  eacli 
plaintiff';  in  that  group  where  many  lot-owners  united  to  obtain  relief  from  an 
illegal  assessment,  the  one  official  act  of  the  numicipality  placeil  an  unlawful 
burden  on  the  lot  of  each  plaintiff,  and  by  this  single  wrong  all  of  the  lot-owners 
sustained  their  individual  but  common  injuries.  The  same  is  true  in  the  suits 
by  tax-payers  to  be  relieved  from  an  illegal  tax  or  public  debt.  In  the  present 
case,  the  transaction  was  otherwise,  both  in  form  and  in  its  nature.  There  was 
no  single  wrongful  act  of  the  canal  company,  which  by  its  comprehensive  nature 
produced  the  same  injury  upon  the  land  of  each  pro])rietor.  On  the  contrary, 
the  company  committed  a  separate  and  wholly  independent  trespass  upon  the 
land  of  each  by  itself,  and  these  trespasses  were  not  simply  distinct  in  contem- 
plation of  law,  but  thej'  were  different  in  their  form,  nature,  and  extent.  It 
necessarily  follows,  therefore,  that  there  was  not  among  the  plaintiffs  even  any 
comiininity  of  interest  in  the  relief  soiufhl.  nor  in  the  questions  at  issue,  whicli, 
it  is  conceded,  must  exist  in  (jrdcr  that  the  court  may  interfere,  and   wJiich  did 


§  -^65  Et^UITV     JLKJSl'l.TDKXCi:.  122 

§  265.  In  Cases  of  Illegal  Taxes  and  Public  Burdens.  —I  pass  to 
eases  eoneeriiing  local  assessiiient,  general  taxes,  and  public  del)ts 
i<r  burdens.  The  line  of  decisions  has  already  been  mentioned, 
where,  upon  an  equity'  suit  brought  in  most  instances  by  one  pro- 
exist  in  all  tlie  groups  of  cases  lieretofore  cited.  Tlie  decision  of  the  chancellor 
was  therefore  unquestionably  correct :  but  I  cannot  accept  the  whole  course 
and  tenor  of  his  reasoning  as  equally  correct.  It  is  the  case,  not  uncommon,  of 
a  judge  who  seeks  to  sustain  a  foregone  conclusion  by  giving  an  imperfect  con- 
struction or  improper  bias  to  the  authorities  whicli  he  cites. 

Tlie  ilarselis  case  is  an  example  of  an  extensive  class  where  the  court  of  etjui- 
ty  properly  refuses  to  take  jurisdiction,  because  the  exercise  of  jurisdiction 
would  not  avail  to  avoid  a  multiplicity  of  suits,  except  in  form.  If,  after  the 
numerous  parties  are  joined,  there  still  remain  separate  issues  to  be  tried  be- 
tween each  of  them  and  the  single  defendant  or  plaintiff",  nothing  has  been 
gained  by  the  court  of  equity's  assuming  jurisdiction.  In  such  a  case,  "while 
the  bill  has  only  one  number  upon  the  docket  and  calls  itself  a  single  proceed- 
ing, it  is  really  a  bundle  of  separate  suits,  each  of  which  is  no  doubt  similar  in 
character  to  the  others,  but  rests  nevertheless  upon  the  separate  and  distinct 
liability  of  one  defendant"  (class  foi'rth).  or  upon  the  separate  and  distinct 
claim  of  one  plaintifV  (class  third).  Tompkins  v.  Craig,  93  Fed.  885,  2  Ames  K(i. 
Jur.  S7;  Hale  v.  Allinson,  188  U.  S.  56.  23  Sup.  Ct.  244,  250-254;  Pom.  Eq.  Jnr. 
(od  cd.)  §  251Vj.  Tompkins  v.  Craig  was  a  bill  to  collect  the  amounts  previously 
assessed  against  the  stockholders  of  a  corporation  luider  a  statute  making  them 
severally  and  individually  liable  for  its  debts  to  an  amount  equal  to  the  value 
of  their  respective  shares.  By  McPherson,  J).  .7.:  "After  the  rate  of  assessment 
has  been  fixed,  and  the  individual  liability  of  each  stockholder  has  thus  been 
ascertained,  the  enforcement  of  such  liability  is  the  proper  subject  of  a  suit  at 
law,  in  which  the  separate  rights  of  the  defendant  stockholders  are  distinc- 
tively to  he  considered.  .  .  .  Eacli  defendant  may  desire  to  set  up  a  different 
defense.  One  stockholder  may  have  paid  his  assessment  in  whole  or  in  part; 
another  may  seek  to  raise  the  question  whether  the  Iowa  court  had  jurisdiction 
to  make  the  levy:  a  third  may  wish  to  attack  the  amount  of  the  assessment; 
another  may  aver  that  his  subscriptitm  was  void  from  the  beginning;  and  still 
other  defenses,  wiiich  need  not  be  s])ecitied,  are  readily  conceivable.  ^Ve  say  noth- 
ing about  the  validity  of  these  defenses.  Some  of  them  may  not  be  available  and 
others  may  not  be  successful,  but  each  defendant  has  the  right  to  make  whatever 
objection  he  may  see  fit  to  raise,  in  order  that  it  may  be  passed  upon  by  the 
court,  if  tlie  defendants  are  numerous,  as  they  are  in  the  pending  suit,  it  would 
be  almost,  perhaps  wholly,  impossible  to  apportion  fairly  the  costs  of  hearing  and 
of  determining  many  unrelated  issues."  Hale  v.  Allinson  was  a  similar  case.  See, 
further,  Lehigh  Valley  E.  R.  Co.  v.  McFarlan,  30  N.  J.  Eq.  135,  2  Ames  Cas.  Eq. 
S.l,  31  N.  .J.  Eq.  730,  1  Keener  133  (two  groups  of  defendants  having  divergent 
claims)  ;  .Jones  v.  Hardy,  127  Ala.  221,  28  South.  5()4,  2  Ames  Eq.  -lur.  91;  Van 
Auken  v.  Dammeier,  27  Oreg.  150,  40  Pac.  89  (plaintiff's  having  similar  but  un- 
connected claims  cannot  join).  It  has  also  been  held  in  several  cases  that  the 
jurisdiction  will  not  be  exercised  whei'c  there  is  vo  practical  necessity  for  its 
exercise;  as,  where  adequate  relief  may  be  obtained  by  joining  the  numerous  de- 
fendants or  plaintiff's  in  an  action  of  ejectment;  Smythe  v.  New  Orleans  C.  &  B. 
Co.,  34  Fed.  825;  or  where  the  alleged  danger  of  numerous  suits  against  the  com- 
plainant amounts  merely  to  a  possibility,  and  not  a  tlireat,  of  vexatious  litigation; 
Farmington  \ill.  v.  Saiidv  W.  Bk.,  85  Me.  -l(i,  20  Atl.  905. 


123  TO  ri!i:vj;.\T  a  .ml  Liii'LiciTY  or  slits.  §  2(>fJ 

pi-ietor,  to  restrain  or  to  set  aside  some  ille.ual  assessment  or  tax 
which  imposed  a  lieu  or  liability  upon  the  plaintitV  and  otiiers  in 
the  same  position,  the  court  has  held  that  it  would  exercise  its 
jurisdiction  and  grant  the  relief  only  .where  such  judicial  action 
was  necessary  to  prevent  a  multiplicity  of  suits,  or  to  remove  a 
cloud  from  title,  or  to  avoid  irreparable  mischief.  These  decisions 
therefore  assert  afifirmatively  that  a  court  of  ecpiity  maij  relieve 
from  illegal  assessments  and  taxes  on  the  ground  of  preventing  a 
nmltiplieity  of  suits:  but  they  make  no  attempt  to  determine 
when  or  under  what  circumstances  such  ground  for  its  interference 
would  exist;  and  they  all  hold  that  the  mere  facts  of  the  assess- 
ment or  tax  being  illegal  and  of  its  creating  an  illegal  personal 
liability  or  unlawful  lien,  and  of  its  affecting  numerous  tax-payers 
and  owners  in  the  same  manner,  do  not  furnish  the  ground  for 
equitable  interference,  nor  bring  the  case  within  the  jurisdiftion 
based  upon  the  previ^ntion  of  a  multiplicity  of  suits. 

§  266.  The  cases,  however,  to  which  I  now  refer  go  much  further 
than  these.  There  are  well-considered  adjudications  of  several 
courts,  certainly  among  the  ablest  courts  of  this  country,  which 
hold  that,  as  a  general  rule,  or  except  under  very  special  circum- 
stances, a  court  of  equity  will  not  exercise  its  jurisdiction  and 
grant  relief  upon  the  doctrine  of  preventing  a  multiplicity  of  suits 
in  a  suit  brought  by  a  single  tax-payer  and  property  owner,  or 
by  one  or  more  suing  on  behalf  of  himself  and  others,  or  by  many 
individuals  united  as  co-plaintift's  to  restrain  the  enforcement  of, 
oi'  to  set  aside  and  annul,  or  to  be  otherwise  relieved  from,  any 
h)cal  municipal  assessment,  or  any  tax,  purel.y  personal  or  made 
a  lien  on  property,  laid  by  a  county,  town,  city,  or  other  district,  or 
any  official  act,  proceeding,  or  transaction  of  a  county,  town,  city, 
or  district,  whereby  a  public  indebtedness  is  or  would  be  created, 
and  the  burden  of  taxation  is  or  would  be  enhanced,  upon  the 
ground  that  such  assessment,  tax,  official  proceeding,  or  public 
debt  was  illegal,  and  either  voidable  or  void.  These  cases  there- 
fore present  a  direct  conflict  of  judicial  opinion  with  those  quoted 
in  the  preceding  paragraphs.  The  most  important  reasons  given 
hy  the  courts  in  support  of  the  general  conclusion  which  they  all 
reach  are  placed  in  the  accompanying  foot-note.^ 

'See  especially  Youngblood  v.  Sexton,  32  ^lich.  406,  20  Am.  Rep.  654:  Dodd 
V.  City  of  Hartford,  25  Conn.  232,  2  Ames  Eq.  Jur.  691 :  Cuttinjr  v.  Gilbert,  5 
JJlatoh.  2~)9;  and  the  exhaustive  criticism  of  these  cases  in  Prof.  Pomeroy's 
note.  The  chief  reasons  adduced  for  declininfj  equity  jurisdiction  in 
this  class  of  cases  are:  (1)  want  of  "privity"  among  the  complainants; 
(2)  that  each  of  the  numerous  {)ersons  nuist  himself  be  exposed  to  many 
actions,    in    order    that    a    court    of    dniily    may    interfere:    as    to    this,    see   note 


§  207  EQUITY    JURISPKUDKXCE.  124 

§  267.  Summary  of  Conclusions. —  ...  In  cases  belonging^ 
to  the  third  and  fourth  classes,  wlien  a  body  of  persons  assert 
some  claim  against  a  single  distinct  part}-,  or  conversely  a  single 
distinct  party  asserts  some-  claim  against  a  body  of  persons,  the 
i'andamental  question,  upon  which  the  exercise  of  the  jurisdiction 
confessedly  rests,  and  over  Mdiich  there  has  been  a  direct  antagonism 
of  judicial  opinion,  relates  to  the  nature,  extent,  and  object  of  the 
common  interest  which  must  exist  among  the  individual  members  of 
the  numerous  body,  and  between  them  and  their  single  adversary, 
in  order  that  a  court  of  equity  may  interfere.  Incidental  to  this 
main  element,  the  further  question  has  been  raised,  What  party  is 
entitled  to  relief  for  the  purpose  of  preventing  a  multiplicity  of 
suits? — whether  the  plaintitt'  who  invokes  the  aid  of  a  court  upon 
that  ground  must  himself  be  the  person  who  would  otherwise,  and 
against  his  own  choice,  be  exposed  to  a  repeated  and  vexatious 
litigation?'     "We  have  also  seen,  in  a  certain  class  of  cases  growing 

to  §  2G7 ;  (3)  "reasons  of  policV;  founded  on  the  necessity  of  speedy  collection 
of  taxes,  which  ought  to  prevent  a  court  of  chancery,  from  suspending  these 
proceedings,     except  upon  the  clearest  grounds." 

'  Cases  of  the  "Third  Class"  Denying  the  Jurisdiction. — Dodd  v.  City  of 
Hartford,  25  Conn.  232,  2  Ames  Eq.  Jur.  69;  Washington  Co.  v.  Williams,  111 
Fed.  801,  49  C.   C.  A.   G21. 

Cases  which  deny  the  jurisdiction  in  "class  third"  appear  to  be  relatively 
more  numerous  than  those  that  deny  the  jurisdiction  in  "class  fourth."  In 
support  of  such  denial  of  the  jurisdiction  in  the  former  class  the  courts,  so  far 
as  tlie  editor  has  noticed,  content  thems<'Ives,  in  llie  main,  with  the  dogmatic 
assertation  that  "the  jurisdiction  to  prevent  a  nniltiplicity  of  suits  cannot 
properly  be  invoked  except  by  the  person  who  may  be  subjected  to  them;"  or 
that  the  numerous  plaintiffs  "cannot  individually  complain  that  others  are  com- 
pelled to  sue,  for  they  have  no  shai'e  in  tlie  expense  or  vexation  of  each  other's 
suits."  A  convincing  answer  to  this  objeclion  may  be  found  in  the  two  consid- 
erations clearly  set  forth  in  Smith  v.  Bank  of  Xew  England,  69  IST.  H.  254,  45 
Atl.  1082,  2  Ames  Cas.  Eq.  79,  by  Carpenter,  C.  .T. :  "For  the  determination  of 
one  issue  the  public  must  provide  seventy-nine  sessions  of  the  court  and  seventy- 
nine  juries.  In  short,  a  single  issue,  upon  which  the  rights  of  all  parties  in- 
terested in  the  controversy  depend,  must  be  tried  seventy-nine  times,  and  the 
parties  and  the  public  be  subjected  to  the  worse  than  useless  expense  of  seventy- 
eight  trials.  ...  A  speedy  and  inexjiensive  adjudication  of  their  common 
right  is  quite  as  important  to  the  numerous  plaintiffs  as  to  the  single  defend- 
ant, and  it  may  be  much  more  so.  Cases  may  often  happen  where  a  rejection 
of  their  application  for  equitable  intervention  to  prevent  a  multiplicity  of  suits 
would  operate  practically  as  a  denial  of  justice.  Suppose,  e.  g.,  that  each  of  one 
hundered  persons  held  an  interest  coupon  for  %C>,  on  bonds  issued  by  a  town  or 
other  corporation,  and  that  the  only  controverted  question  was  as  to  the  validity 
of  the  bonds.  Each  coupon  holder  would  have  a  clear  and,  in  a  legal  sense,  an 
adequate  remedy  at  law.  But  if  he  recovered  in  an  action  at  law.  he  would  real- 
ize nothing,  as  the  necessary  expenses  of  the  suit  would  exceed  the  amount  re- 
covered. If,  on  the  other  hand,  the  question  were  determined  in  one  suit,  each 
might    realize   substantially   the   amoimt   of   his   demand.      To   hold   that   equity 


125  TO     I'HEVENT     A    MlI/rJl'LlClTY     OF     SUITS.  §  208 

out  of  some  unauthoriy.ed  public  official  act,  the  principle  has  been 
niinnuncpd  that,  iiiulor  the  circumstances,  the  iniured  persons, 
citizens,  or  inhabitants  of  a  local  district  had  no  cause  of  actit)n 
of  any  kind,  no  claim  to  any  relief  from  a  court  of  justice.  This 
principle,  which  may  be  correct,  is  avowedly  based  upon  consider- 
ations of  governmental  policy  and  public  expediency,  and  has 
therefore  no  legitimate  connection  with  the  doctrine  concerning 
the  prevention  of  a  multiplicity  of  suits.  The  principle  has.  how- 
ever, in  some  subsequent  decisions,  been  regarded  and  acted  upon, 
very  improperly  in  my  opinion,  as  though  it  directly  applied  to, 
interfered  with,  abridged,  or  regulated  the  equitable  jurisdiction 
to  prevent  a  multiplicity  of  suits.  The  error  involved  in  the  ming- 
ling of  two  entirely  distinct  matters  has,  I  think,  been  shown  with 
sufficient  clearness  in  a  previous  note. 

§  268.  Conclusions  as  to  the  Third  and  Fourth  Classes. — From  a 
careful  comjiarison  of  the  actual  decisions  embraced  in  the  third 
and  fourth  classes,  and  which  are  quoted  under  the  foregoing 
paragraphs,  the  following  propositions  are  submitted  as  established 
by  principle  and  loy  authority,  and  as  constituting  settled  rules  con- 
cerning this  branch  of  the  equitable  jurisdiction.  In  that  partic- 
ular family  of  suits,  Avhether  brought  on  behalf  of  a  numerous 
body  against  a  single  party,  or  by  a  single  party  against  a  numerous 
body,  Avhich  are  strictly  and  technically  "bills  of  peace,"  in  order 
that  a  court  of  equity  may  grant  the  relief  and  thus  exercise  its 
jurisdiction  on  the  ground  of  preventing  a  multiplicity  of  suits, 
there  does  and  must  exist  among-  the  individuals  composing  the 
numerous  body,  or  between  each  of  them  and  their  single  adver- 
sary, a  common  ricjhi.  a  community  of  interest  in  the  siihjrct- 
matter  of  the  controversy,  or  a  common  title  from  which  all  their 
separate  claims  and  all  the  cpiestions  at  issue  arise;  it  is  not 
enough  that  the  claims  of  each  individual  being  separate  and 
distinct,  there   is  a   community  of  interest   merely  in  the  question 

"vvill  intervene  in  behalf  of  the  corporation,  but  not  in  behalf  of  the  coupon-hold- 
ers, to  compel  the  issue  to  be  tried  in  one  suit,  would  bring  deserved  reproach 
upon  the  administration  of  justice." 

Indeed,  the  conjecture  may  be  hazarded  that  the  denial  of  the  jxu'isdiction 
may  frequently  effect  a  greater  practical  injustice  in  cases  of  "class  third"  than 
in  most  cases  of  class  fourth.  In  a  typical  case  of  class  fourth,  where  the  single 
party  is  assailed  by  numerous  suits  involving  the  same  issues,  a  determination 
of  one  or  a  few  of  these  in  his  favor  will  generally,  perhaps,  result  in  the  aban- 
donment of  the  others,  even  without  the  interposition  of  equity ;  while  in  very 
many  cases  of  class  third,  the  burden  of  a  single  great  wrong  is  made  to  fall 
upon  a  large  number  of  individuals,  few  of  whom  can.  unaided,  afford  the  ex- 
pense of  litigation,  and  thus  practical  immunity  is  secured  for  the  wrong-doer. 
See  tne  forcible  observations  of  \Yalkor.  J.,  in  Greedup  v.  Franklin  County, 
30  Ark.    101,  quoted   ante,   note   to   S  200. 


§  t>G!:)  EQUITY    JUIUsriiUDEXCE.  1'2() 

of  law  or  of  fact  involved,  or  in  the  l-ind  and  form  of  remedy 
demanded  and  obtaiiied  by  or  against  oacli  individual.  The  in- 
stances of  controversies  between  the  lord  of  a  manor  and  his 
tenants  concerning  some  general  right  claimed  by  or  against  them 
all  arising  from  the  custom  of  the  manor,  or  between  a  parson  and 
his  parishioners  concerning  tithes  or  a  modus  affecting  all,  and  the 
like,  are  examples.  It  must  be  admitted,  as  a  clear  historical  fact, 
that  at  an  early  period  the  court  of  chancery  confined  this  branch 
of  its  jurisdiction  to  these  technical  "bills  of  peace."  The  above 
rule,  as  laid  down  in  them,  was  for  a  considerable  time  the  limit 
beyond  which  the  court  would  not  exercise  its  jurisdiction  in 
cases  belonging  to  the  third  and  fourth  classes.  For  this  reason 
many  passages  and  dicta  found  in  the  judicial  opinions  of  that  day 
must  be  regarded  as  merely  expressing  the  restrictive  theory  which 
then  prevailed  in  the  court  of  chancery,  and  as  necessarily  modi- 
fied by  the  great  enlargement  and  extension  of  the  jurisdiction 
which  has  since  taken  place ;  and  at  all  events,  these  dicta  and  in- 
cidental utterances  should,  on  any  correct  principle  of  interpreta- 
tion, be  treated  as  confined,  and  as  intended  to  be  confined,  to  the 
technical  "bills  of  peace"  in  which  they  occurred,  or  concerning- 
which  they  Avere  spoken.  Notwithstandizig  this  general  theory  of 
the  jurisdiction  which  prevailed  at  an  early  period,  it  is  certain 
that  even  then  the  court  sometimes  transcended  the  arbitrarj'-  limit, 
and  exercised  the  jurisdiction,  where  there  was  no  pretense  of  any 
community  of  right,  or  title,  or  interest  in  the  subject-matter. 

§  269.  This  early  theory  has,  however,  long  been  abandoned.  The 
jurisdiction,  based  upon  the  prevention  of  a  multiplicity  of  suits, 
has  long  been  extended  to  other  cases  of  the  third  and  fourth 
classes,  which  are  not  technicall}^  "bills  of  peace,"  but  "are  anal- 
ogous to"  or  "within  the  principle  of"  such  bills.  Under  the 
greatest  diversity  of  circumstances,  and  the  greatest  variety  of 
claims  arising  from  unauthorized  public  acts,  private  tortious  acts, 
invasion  of  property  rights,  violation  of  contract  obligations,  and 
notwithstanding  the  positive  denials  by  some  American  courts,  the 
weight  of  authority  is  simply  overwhelming  that  the  jurisdiction 
may  and  should  be  exercised,  either  on  behalf  of  a  numerovis  body 
of  separate  claimants  against  a  single  party  or  on  behalf 
of  a  single  party  against  such  a  numerous  body,  although 
there  is  no  "common  title,"  nor  "communitj^  of  right" 
or  of  "interest  in  the  subject-matter"  among  these  indi- 
viduals, but  where  there  is  and  because  there  is  merely  a  community 
of  interest  among  tliem  in  the  questions  of  law  and  fact  involved 
in  the  general  controversy',  or  in  the  kind  and  foi'm  of  relief  de- 
manded and  obtained  by  or  against  each  individual  member  of  the 


1'27  TO   PKKVHXT   A    MULTIPLICITY   OF   SUITS.  §  'iGJ^ 

numerous  body.  In  a  majority  of  the  decided  cases,  this  community 
of  interest  in  the  questions  at  issue  and  in  the  kind  of  relief  sousj^ht 
has  originated  from  the  fact  that  the  separate  claims  of  all  the 
individuals  composing  the  body  arose  by  means  of  the  same  unau- 
thorized, unlawful,  or  illegal  act  or  proceeding.  Even  this  external 
feature  of  unity,  however,  has  not  always  existed,  and  is  not 
deemed  essential.  Courts  of  the  highest  standing  and  ability  havi^ 
repeatedly  interfered  and  exercised  this  jurisdiction,  where  the 
individual  claims  were  not  only  legally  separate,  but  w^ere  se})a- 
rate  in  time,  and  each  arose  from  an  entirely  separate  and  distinct 
transaction,  simplj^  because  tliere  was  a  connnunity  of  interest 
among  all  the  claimants  in  the  (|uestion  at  issue  and  in  the  remedy. 
The  same  overwhelming  weight  of  authority  effectually  disposes  of 
the  rule  laid  dow^n  by  some  judges  as  a  test,  that  equity  w-ill  never 
exercise  its  jurisdiction  to  prevent  a  multiplicity  of  suits,  unless  the 
plaintiff,  or  each  of  the  plaintiffs,  is  himself  the  person  who  would 
necessarily,  and  contrary  to  his  own  wall,  be  exposed  to  numerous 
actions  or  vexatious  litigation.  This  position  is  opposed  to  the 
whole  course  of  decision  in  suits  of  the  third  and  fourth  classes  from 
the  earliest  period  down  to  the  present  time.  While  the  foregoing 
conclusions  are  supported  by  the  great  weight  of  judicial  author- 
il}',  they  are,  in  my  (^])inion,  no  less  clearly  sustained  by  principle. 
The  objection  which  he'  been  urged  against  the  propriety  or  even 
possibility  of  exercising;  the  jurisdiction,  either  on  behalf  of  or 
against  a  numerous  body  of  separate  claimants,  wiiere  there  is  no 
"common  title,"  or  community  "of  right"  or  "of  interest  in  the 
subject-matter,"  among  them,  is,  that  a  single  decree  of  the  court 
cannot  settle  the  rights  of  all:  the  legal  position  and  claim  of  each 
being  entirely  distinct  from  that  of  all  the  others,  a  decision  as  to 
one  or  some  could  not  in  any  manner  bind  and  dispose  of  the 
rights  and  demands  of  the  other  persons,  and  thus  the  proceeding 
must  necessarily  fail  to  accomplish  its  only  purpose, — the  pre- 
vention of  further  litigation.  This  objection  has  been  repeated  as 
though  it  w^ere  conclusive;  but  like  so  much  of  the  so-called  "legal 
reasoning"  traditional  in  the  courts,  it  is  a  mere  empty  formula  of 
words  wthout  any  real  meaning,  because  it  has  no  foundatifui  v\' 
fact, — it  is  simply  untrue;  one  arbitrary  rule  is  contrived  and  then 
insisted  upon  as  the  reason  for  another  ecjually  arbitrai'y  rule. 
The  sole  and  sufScient  ans\ver  to  the  objection  is  found  in  the  actual 
facts.  The  jurisdiction  has  been  exercised  in  a  great  variety  of 
cases  where  the  individual  claimants  were  completely  separate  and 
distinct,  and  the  only  community  of  interest  among  them  Avas  in 
the  question  at  issue  and  perhaps  in  Ihc  kind  of  relief,  and  the 
sincfle  decree  has  without   anv  difficultv  settled  the  entire   contro- 


§  2TU  EQUITY    JUinsriiUDENCE.  12S 

versy  and  determined  the  separate  rights  and  obligations  of  each 
individual  claimant/  The  same  principle  therefore  embraces  both 
the  technical  "bills  of  peace,"  in  which  there  is  confessedly  a  com- 
mon right  or  title  or  community  of  interest  in  the  subject-matter, 
and  also  those  analogous  cases  over  v^^hich  the  jurisdiction  has  been 
extended,  in  which  there  is  no  such  common  right  or  title  or  com- 
munity of  interest  in  the  subject-matter,  but  only  a  community  of 
interest  in  the  question  involved  and  in  the  kind  of  relief  obtained, 
§  270.  A  few  additional  words  may  be  proper  with  respect  to 
the  exercise  of  the  jurisdiction  on  behalf  of  taxpayers  and  other 
members  of  a  local  district  or  community  aifected  by  an  unlawful 
common  or  public  burden.  Wherever  the  principle  has  been 
finally  settled  that  individual  citizens  or  members  of  a  municipality 
sustaining  an  injury  from  some  unauthorized  or  illegal  official  act, 
in  common  with  all  the  other  citizens  or  members  of  the  same 
district, — that  is,  only  suffering  the  same  wrong  or  loss  which  i? 
inflicted  upon  all  other  like  persons, — have  no  cause  of  action 
whatever,  no  remedial  right  recognized  by  any  court  of  justice, 
there  can,  of  course,  be  no  exercise  on  their  behalf  of  the  equitable 
jurisdiction  to  prevent  a  multiplicity  of  suits.  And  if  the  prin- 
ciple is  held  to  embrace  tax-payers,  they  are  also  without  any 
equitable  relief.  But  it  is  a  grave  error  to  suppose  that  this  doc- 
trine has  any  special  connection  with  the  ecpiitable  jurisdiction  to 
prevent  a  multiplicity  of  suits,  or  in  any  special  manner  restricts 
that  jurisdiction.  Being  based  upon  high  considerations  of  gov- 
ernmental policy,  it  avowedly  overrides  and  displaces  all  judicial 
authority,  every  form  of  judicial  action.  Wherever,  on  the  other 
hand,  the  tax-payers  of  a  district  subject  to  an  unlawful  burden 
are  regarded  as  having  some  cause  of  action,  as  entitled  to  some 
judicial  remedy, — as,  for  example,  where  the  individual  tax-payer 
may  maintain  an  action  at  law  to  recover  back  the  illegal  tax  which 
he  has  paid,  or  to  recover  damages, — there,  in  my  opinion,  all  the 
reasons  for  exercising  the  jurisdiction  to  prevent  a  multiplicity  of 
suits  in  any  case  of  the  third  or  fourth  classes  apply  with  great 

'  While  this  result  has  been  accomplished  in  the  Schuyler  fraud  case,  17  N.  Y, 
505,  in  the  water  company  case,  L.  R.  2  Ch.  8,  in  the  case  of  the  complicated 
contract,  7  N.  J.  Eq.  440,  and  in  other  like  instances  where  the  separate  demands 
of  the  claimants  had  no  common  origin,  but  each  arose  from  a  distinct  transac- 
tion, and  in  the  various  tax-jiayers'  cases,  it  is  plain  that  the  objection  under 
consideration  is  merely  illusory;  that  it  is  truly  what  1  have  called  it,  an  empty 
formula  of  words  without  any  real  meaning.  Much  of  this  a  priori  reasoning 
explaining  why  a  particular  thing  could  not  be  done,  repeated  by  judge  after 
judge,  has  in  like  manner  been  exploded  simply  by  doing  the  thing  which  had, 
through  verbal  logic,  been  shown  to  be  impossible.  This  one  fact  is  the  essence 
of  a  u'rcat  deal  of  the  modern  legal  form. 


129  TO     PREVENT     A    MULTirLlClTY     OF     SUITiS.  >  §'^^'> 

and  convincing  force  in  .support  of  the  same  jurisdiction  in  behalf 
of  such  tax-payers.  Notwithstanding  the  adverse  decisions,  the 
weight  of  judicial  authority  in  favor  of  this  conclusion,  and  of 
exercising  the  jurisdiction  under  every  form  of  local  assessment, 
general  tax,  municipal  debt,  or  other  public  burden  by  which  tax- 
ation would  be  increased,  is  very  decided.^  On  principle,  no  dis- 
tinction can  be  discovered  between  the  case  of  such  tax-payers,  and 
the  instances  in  which  the  jurisdiction  has  been  repeatedly  exer- 
cised and  fully  established  on  behalf  of  a  common  body  of  sepai-ate 
claimants.  Each  tax-payer  has  a  remedy  by  action  at  law;  but  it 
is  to  the  last  degree  inadeciuate  and  imperfect,  and  often  nominal, 
since  he  inust  wait  until  the  Avrong  has  been  accomplished  against 
himself  before  he  can  obtain  redress;  and  at  best,  the  rights  of  all 
can  only  be  secured  even  in  this  incomplete  manner  by  an  indefinite 
number  of  litigations.  By  means  of  the  equitable  jurisdiction,  the 
whole  controversy  and  the  rights  of  every  individual  tax-payer 
can  be  finally  determined  in  one  judicial  proceeding  by  one  judicial 
decree.  This  is  not  a  plausible  theory;  it  is  a  fact  demonstrated  in 
the  constant  judicial  experience  of  numerous  states. - 

'  This  weight  of  authority  becomes  even  more  imposing  from  the  fact  that  in 
New  York,  and  in  several  other  states  whose  courts  have  followed  the  lead  of 
Isew  York  tribunals,  the  denial  of  relief  to  the  tax-payers  has  been  based,  in 
part  at  least,  upon  the  pr-'nciple  of  public  policy  mentioned  above  in  the  text, 
by  virtue  of  which  individut. '  tax-payers  were  held  to  be  without  any  remedial 
right.  The  adoption  of  this  principle  at  once  ended  all  possibility  of  judicial 
interference;  and  these  decisions  have  therefore  no  legitimate  authority  upon 
the  question  as  to  the  equitable  jurisdiction  to  prevent  a  multiplicity  of  suits 
being  exercised  on  behalf  of  tax-payers. 

*  Can  it  aj.pear  to  the  thoughtful  observer  otherwise  than  as  a  farce  or  travesty 
upon  the  administration  of  justice,  to  see  a  court  deny  all  relief  to  a  body  of 
tax-payers  suing  in  the  form  of  an  equitable  action  to  restrain  an  illegal  tax, 
or  to  set  aside  an  illegal  official  act,  such  as  a  town  bonding,  for  the  alleged 
reasons  that  their  interests  were  separate,  and  could  not  be  determined  by  one 
decree,  and  then  to  see  the  self-same  judges,  on  behalf  of  the  same  tax-payers 
in  the  same  case,  and  upon  exactly  the  same  facts  set  forth  in  a  petition,  grant 
the  very  identical  relief,  and  set  aside  the  tax  or  official  act,  by  their  adjudi- 
cation made  upon  a  writ  of  certiorari?  We  may  still  hope  that  the  time  will 
come,  in  the  progress  of  an  enlightened  legal  reform,  when  the  administration 
of  justice  will  be  based  entirely  upon  considerations  of  substance,  and  not  of  mere 
form.  The  reformed  system  of  procedure  as  it  is  administered  by  some  courts 
has  left  much  room  for  further  improvement  in  the  modes  of  obtaining  justice. 


'^77  ECJUITY     JUKJ.Si'KLUEXCK.  130 


SECTION  V. 

THE  DOCTRINE  THAT  THE  .JURISDICTION  ONCE  EXISTING  IS  NOT 
LOST  BECAUSE  THE  COURTS  OF  LAW  HAVE  SUBSEQUENTLY 
ACQUIRED    A    LIKE    AUTHOR  IT  V. 

ANALYSIS. 

§  276.  The  doctrine  is  api)lied  to  both  kinds  of  jurisdiction. 
§§   277,278.  Where  the   jurisdiction    at   law   has   been   enhirged   entirely   by    the 
action   of   the  law   courts. 

^  278.  Ditto,    examples. 
§§   270-281.  Where  the  jurisdiction  at  law  has  been  cnlartied  by  statute. 

§  280.  Ditto,    examples. 

§   281.  Where  such  statute  destroys  the  jtrevious  equitj'  jurisdiction. 

§  276.  Is  Applied  to  Both  Kinds  of  Jurisdiction. — There  is  still 
another  principle  affecting  the  ecpiitable  jurisdiction,  which  re- 
mains to  be  considered  in  all  its  relations,  namely:  Whenever  a 
court  of  eciuity,  as  a  part  of  its  inherent  powers,  had  jurisdiction 
to  interfere  and  grant  relief  in  any  particular  case,  or  under  any 
condition  of  facts  and  circumstances,  such  jurisdiction  is  not,  in 
general,  lost,  or  abridged,  or  affected  because  the  courts  of  law 
may  have  subsequently  acquired  a  jurisdiction  to  grant  either  the 
same  or  different  relief,  in  the  same  kind  of  cases,  and  under  the 
same  facts  or  circumstances.  This  principle  has  already  been 
briefly  mentioned  as  one  source  of  the  concurrent  jurisdiction;  but, 
like  the  doctrines  discussed  in  the  preceding  sections  of  this  cha])- 
ter,  it  also  extends  to  and  operates  in  the  exclusive  jurisdiction.  In 
other  words,  the  exclusive  jurisdiction  to  grant  purely  equitable 
reliefs,  as  well  as  the  concurrent  jurisdiction  to  confer  legal  reliefs, 
is  still  preserved,  although  the  common-law  courts  may  have  ob- 
tained authority  to  award  their  remedies  to  the  same  parties  upon 
the  same  facts. 

§  277.  Jurisdiction  at  Law  Enlarged  by  the  Law  Courts. — This 
subsequent  jurisdiction  of  the  courts  of  law  may  be  acquired  in 
<^ither  of  two  modes:  by  the  virtual  legislative  action  of  the  com- 
mon-law judges  themselves,  or  by  express  statutory  legislation. 
In  many  instances  it  has  happened  that  the  law  courts,  by  aban- 
doning their  old  arbitrary  rules,  and  by  adopting  notions  which 
originated  in  the  court  of  chancery,  and  by  enlarging  the  scope  and 
effect  of  the  common-law  actions,  have  in  process  of  time  obtained 
the  power  of  giving  even  adequate  relief  in  cases  and  under  circum- 
stances which  formerly  came  within  the  exclusive  domain  of  equity. 
In  all  such  instances,  the  courts  of  pfjuity  have  continued  to  as- 
sert and  to  exercise  their  own  jurisdiction,  for  the  reason  that  it 


i;il  jURi.sDicTioN  oxcl:  existing  xur  lost.  §  :2i;i 

could  not  be  destroyed,  or  abridged,  or  even  limited  by  any  action 
of  the  eonnnon-law  courts  alone.  The  enlargement  of  the  jurisdic- 
tion at  law,  by  the  ordinary  process  of  legal  development,  has  not, 
in  general,   affected  the   pre-existing   jurisdiction   of  equity.^ 

278.  The  following  are  some  of  the  most  important  classes  of 
cases  in  which  this  principle  has  been  applied  and  the  equitable 
jurisdiction  has  been  exercised,  although  a  court  of  law  may  main- 
tain an  action  or  allow  a  defense  upon  the  same  facts,  and  may 
give  an  adequate  and  perhaps  the  very  same  relief:  In  suits  to  re- 
cover a  fund  impressed  with  a  trust,  or  where  a  trust  relation  in 
view  of  equity  exists  between  the  parties,  where  the  plaintiff  might 
recover  the  same  sum  by  an  action  of  assumpsit  for  money  had  and 
received,  or  like  legal  action  ;^  .  .  .  in  suits  growing  out  of  the 
relation  of  suretyship,  brought  by  a  surety  against  his  principal  for 

f  ... 

an  exoneration,  or  against  co-sureties  for  a  contribution,  or  against 
the  creditor  or  the  principal  to  be  relieved  from  liability  on  ac- 
count of  the  creditor's  conduct,  or  for  any  other  appropriate  relief, 
although  courts  of  law  may  give  adequate  relief  to  the  surety  by 
action  upon  implied  contract,  or  by  defense  to  an  action  brought 
against  him  by  the  creditor;-  .  .  .  and  in  suits  to  set  aside  or  to  be 
relieved  from,  or  to  restrain  an  action  or  judgment  at  law  upon,  a 
contract  which  is  illegal,  although  the  illegality  may,  either  by 
authority  of  the  law  courts  themselves  or  by  express  statute,  be 
set  up  as  a  defense  to  an  action  at  law  brought  to  enforce  the  con- 
tract, and  may  thus  defeat  a  recovery  thereon;  as,  for  example, 
where  the  contract  is  usurious,  or  given  for  a  gambling  debt,  or 
other  illegal  consideration,  or  is  contrary  to  good  morals.^ 

§  279,  Jurisdiction  at  Lavvr  Enlarged  by  Statute. — Where,  on  the 
other  hand,  the  new  power  is  conferred  upon  the  law  courts  by 
statutory  legislation,  the  rule  is  well  settled  that  unless  the  statute 
contains  negative  words  or  other  language  expressly  taking  away 
the  pre-existing  equitable  jurisdiction,  or  unless  the  whole  scope  of 
the  statute,  by  its  reasonable  construction  and  its  operation,  shoAvs 
a  clear  legislative  intent  to  abolish  that  jurisdiction,  the  former 
jurisdiction  of  equity  to  grant  its  relief  under  the  circumstances 
continues  unabridged.  It  follows,  therefore,  that  where  the  statute 
merely  by  affirmative  words  empowers  a  court  of  law 'to  interfere 
in  the  case,  and  to  grant  a  remedy,  even  though  such  remedy  may 

'Eyre  v.  Everitt.  2  Russ.  381,  382.  ])er  Eord  Eldon;  Atkinson  v.  Leonard.  3 
J^rown  Ch.  218,  1   Scott  138:   Swoony  v.  Williams,  30  N.  J.  Eq.  (i27.  1    Scoif    141. 

'Kirkpatrick  v.  JIcDonald,  11  Pa.  St.  387.  392,  393. 

-Eyre  v.  Everitt.  2  Rnss.  381.  3S2 :  Hempstead  v.  Walkins.  G  Ark.  317,  355, 
3(58,   42    Am.    Dee.    noi!. 

■r.roniley  v.  Holland.  7  Ves.  3,  18-20;   (lough  v.  PraH.  9  Md.  526. 


§  2S(J  EQUITY     JL■I;ISPKUDE^"CE.  132 

be  adequate,  and  even  though  it  may  be  special  and  equitable  in  its 
nature,  the  previous  jurisdiction  of  equity  generally  remains.^ 

§  280.  The  following  are  some  of  the  instances  in  which  this  rule 
has  been  applied,  and  the  equitable  jurisdiction  has  been  asserted, 
notwithstanding  the  statutory  power  given  to  the  courts  of  law 
under  the  same  condition  of  facts. ^  In  suits  upon  lost  instruments, 
bonds,  notes,  bills,  and  other  contracts  to  recover  the  amounts  due  ;-' 
in  suits  for  the  establishment  or  admeasurement  of  dower,  although 
a  statutory  authority  over  matters  of  dowser  has  been  given  to  other 
courts;^  .  .  .  suit  by  a  creditor  to  reach  the  separate  property  of  a 
married  woman,  where  an  action  at  law  for  the  same  purpose  has 
been  permitted  by  statute  ;*  in  suits  to  be  relieved  from  an  illegal 
contract,  or  to  restrain  an  action  brought  or  judgment  obtained 
thereon,  although  a  statute  has  permitted  the  illegality  to  be  set  up 
as  a  defense  in  bar  of  any  recovery  on  the  contract  f  .  .  .  stat- 
utes authorizing  courts  of  law  to  grant  some  distinctively  equitable 
relief  to  sureties,  by  means  of  proceedings  in  actions  at  law,  do  not 
alter  nor  abridge  the  equitable  jurisdiction  over  suretyship,  even  in 
giving  the  very  same  relief;'^  and  a  statute  giving  common-law 
courts  the  power  to  correct  a  judgment  fraudulently  ob- 
tained does  not  affect  the  equity  jurisdiction  .  to  relieve 
against  fraudulent  judgments;  fraud  is  a  matter  of  equitable  cog- 
nizance, and  the  jurisdiction  is  not  lost  by  legislation  giving  the 
same  authority  to  courts  of  law ;'  .  .  .  The  radical  change  in  the 
equitable  and  legal  procedure  effected  in  many  states,  w^hich  per- 
mits equitable  defenses  to  be  set  up,  and  even  affirmative  equitable 
relief  to  be  obtained,  by  the  defendant  in  an  action  at  law  has.  not, 

^Atkinson  v.  Leonard,  3  Brown  Ch.  218,  1  8cott  138;  Darst  v.  Phillips,  41 
Ohio  ISt.  514,  Shep.  24;  tSweeney  v.  Williams,  36  N.  J.  Eq.  627,  1  Scott  141; 
Crass  V.  Memphis  &c.  E.  Co.,  90  Ala.  447,  11  South.  480,  1  Keener  311. 

'  In  Kelley  v.  Lehigh  Min.  &  Mfg.  Co.,  98  Va.  405,  81  Am.  St.  Rep.  736,  36 
S.  E.  511,  it  was  held  that  a  code  provision  which  makes  more  effective  tlie 
common-law  remedy  of  detinue  does  not  affect  the  jurisdiction  of  equity  to  de- 
cree the  specific  deliverj'^  of  title  papers  to  heirs-at-law,  devisees,  and  other 
persons  properly  entitled  to  the  custody  and  possession  of  the  title  deeds  of  their 
respective  estates,  where  they  are  wrongfully  detained  or  withheld  from  them. 

■•=  Atkinson  v.  Leonard,  3  Brown  Ch.  218.  1  Scott  138;  Patton  v.  Campbell,  70 
111.  72,  H.  &  B.  171;  Bohart  v.  Chamberlain,  99  Mo.  622,  13  S.  W.  85.  See,  also, 
post,   §§   831,   832. 

^Elfland  v.  Eltland,  9G  N.  C.  493,  1  S.  E.  858;  Bishop  v.  Woodward,  103  Ga. 
281,  29  S.  E.  968.     See  post,  §  1382. 

*  First  Nat.  Bank  v.  Albertson  (X.  J.  Ch.),  47  Atl.  818;  Rooney  v.  Michael,  84 
Ala.  585,  4  South.  421. 

=  CIay  v.  Fiy,  3  Bibb.  248.  6  Am.  Dec.  654;    Day  v.  Cummings,  10  Vt.  495. 

•Hempstead  v.  Watkins,  6  Ark.  317,  355,  368,  42  Am.  Dec.  690;  Dysart  v.  Crow, 
170    Mo.    275,    70    S.    W.    089. 

'Darst  V.  Phillips,  41  Ohio  St.  514,  Shep.  24. 


133  JUHISDICTIOX    ONCE    EXISTING    NOT    LOST.  \  §  281 

it  lias  sometimes  been  held,  abridged  the  former  well  established 
jurisdiction  of  equity  to  restiain  actions  and  judgments  at  law  on 
the  ground  that  the  controversy  involved  some  equitable  right  or 
interest;  but  this  question  has  been  differently  answered  by  differ- 
ent courts. 

§  281.  When  Such  Statute  Destroys  the  Equity  Jurisdiction. — 
On  the  other  hand,  the  decisions  all  admit  that  if  the  statute  con- 
tains words  negativing'  or  expressly  taking  away  the  previous  equit- 
able jurisdiction,  or  even  if,  upon  a  fair  and  reasonable  interpre- 
tation, the  whole  scope  of  the  statute  shows,  by  necessary  intend- 
ment, a  clear  legislative  intention  to  abrogate  such  jurisdiction, 
then   the    former  jurisdiction   of   equity   is    thereby   ended. ^    .    .    . 

Whenever  a  legal  right  is  wholly  created  by  statute,  and  a  legal 
remedy  for  its  violation  is  also  given  bj^  the  same  statute,  a  court 
of  equity  has  no  authority  to  interfere  with  its  reliefs,  even  though 
the  statutory  remedy  is  difficult,  uncertain,  and  incomplete."  Fi- 
ijalh',  where  there  i:  no  statute,  the  equitable  jurisdiction  may 
become  unused,  obsolete,  and  practically  abolished,  since  the  courts 
of  law  have  assumed  the  j^ower  to  grant  a  simple,  certain,  and 
perfectly  efficient  remedy.  The  practical  abandonment  of  the 
P'^^iuity  jurisdiction  over  suits  bj^  the  assignees  of  ordinary  things 
in  action  is  a  striking  illustration  of  the  change  which  may  thus 
be  effected.  As  a  general  rule,  a  court  of  equity  will  not  now  en- 
tertain a  suit  brought  by  the  assignee  of  a  debt  or  of  a  chose  in 
action  which  is  a  mere  legal  demand.^  The  recent  statutes  of  many 
states,  as  well  as  of  England,  requiring  the  assignee  to  sue  at  law 
in  his  own  name  confirm  and  establish  this  rule. 

MlacLaury  v.  Hart,  121  N.  Y.  63(5,  24  N.  E.  1013;  Moore  v.  Mclntyre,  110 
Mich.  237,  68  N.  W.  130;    Barnes  v.  Sammons.  128  Ind.  596,  27  N.  E.  747. 

-Janney  v.  Buel,  55  Ala.  408;  Dimmick  v.  Delaware  L.  &  W.  R.  R.  Co.,  180 
Pa.   St.   468,  36  Atl.   80(5. 

3  Ontario  Bank  v.  Mumford,  2  Barb.  Ch.  596,  615,  per  Walworth,  Ch. 


CHAPTER  III. 

THE  JURISDICTION  AS  HELD  BY  THE  COURTS  OF  THE 
SEVERAL  STATES,  AND  BY  THE  COURTS  OF  THE 
UNITED  STATES. 


SECTION    I. 
ABSTRACT     OF     LEGISLATIVE     PROVLSIONS. 

ANALYSIS. 

§   282.  Source    of   jurisdiction,    botli    legal    and    equitable,    of    the    courts    in    the 

American    states. 
§   283.  Division   of  the   states   into   four   classes   with   respect   to   the   amount   of 

equity  jurisdiction  given  to  their  courts. 
§  284.  The  first  class  of  states. 
S  285.     The  second  class  of  states. 
§   28G.  The    third    class    of    states. 
§   287.  The    fourth    class    of    states. 
§  288.  Summary   of   conclusions. 

§  282.     Source   of   the   Jurisdiction   of   the   American   Courts. — ■ 

.  .  The  liiohesl  courts  of  original  jurisdiction  in  each  of  the 
.*^1ates  are  understood  to  derive  their  common-law  powers,  sub- 
stantially eo-extensive  with  those  possessed  by  the  superior  law 
courts  of  England,  merely  from  the  fact  of  their  being  created 
as  such  tribunals,  and  without  any  express  grant  of  authority 
l)eing-  essential.  .  .  .  It  is  not  so  with  the  equitable  jurisdit-- 
iion  of  the  American  courts.  For  that  there  must  be  an  authority 
either  expressly  conferred,  or  given  by  necessary  implication  frrun 
the  express  terms,  in  some  provision  of  the  constitution  or  of  a 
statute.     .     .     . 

§  283.  Amount  of  Equity  Jurisdiction — Four  Classes  of  States. 
—  ...  A  correct  knowledge  of  these  statutory  provisions  in 
the  various  states  is  of  the  highest  importance  from  another  point 
of  view;  without  it  the  force  and  authority  of  decisions  rendered 
in  any  particular  state  cannot  be  rightly  appreciated  by  the  bench 
and   bar  of  other  commonwealths.^     .     .     . 

'  As  an  illustration,  the  modern  decisions  in  Massachusetts  upon  questions 
of  general  equity  jurisprudence,  able  and  learned  as  they  are.  Motild  often  ho 
ver>'  misleading  in  other  states,  if  the  statutes  upon  whicli  the  jurisdiction  of 
its  courts  rests  (prior  lo  1877)  were  not  accuratelv  known. 

[1341 


135  ABSTI.'ACT    OF    Li:(i  ISl.ATIV  K    PKOVISIOXS.  §  'ISG 

§  284,  1.  Class  First. — The  lirst  cla-ss  (.'iiibraces  those  .states 
in  vvliich  tlie  constitutions  or  statutes  have  in  express  terms  created 
and  conferred  an  equity  jurisdiction  identical  or  co-extensive  with 
ihat  possessed  by  the  English  court  of  chancery,  so  far  as  is  coni- 
})atible  with  our  forms  of  government,  political  institutions,  and 
j)ublic  policy.  .  .  .  The  following  states  compose  this  class: 
Michigan,  New  York,  Vermont. 

§  285.  2.  Class  Second. — The  second  class  embraces  those  states 
in  which  the  constitutions,  not  in  express  terms,  but  by  necessary 
implication,  create  and  confer  a  general  equity  jurisdiction  sub- 
.stantially  the  same  as  that  possessed  by  the  English  court  of 
chancery,  except  so  far  as  modified  or  limited  by  other  portions  of 
the  state  legislation.  In  this  type  of  legislative  action,  no  attempt 
is  made  by  any  clause  to  particularly  define  the  extent  of  the  juris- 
diction by  comparing  it  with  that  held  by  the  English  chancery; 
the  language  employed  is  always  general ;  it  declares  that  certain 
courts  "have  power  to  decide  all  cases  in  equity;"  or  that  they 
"have  jurisdiction  in  equity,"  or  that  they  shall  exercise  their 
])ower.s  "according  to  the  course  of  equity:"  and  it  thereby  plainly 
implies  that  the  equity  powers  and  jurisdiction  thus  recognized 
and  conferred  are  substantially  those  possessed  by  the  English 
court  of  chancery.  In  many  of  these  states  the  general  clause  is 
added  by  way  of  limitation,  that  equity  powers  shall  not  exist 
where  there  i.s  "a  plain,  adequate,  and  complete  remedy  at  law." 
.  .  .  In  this  class,  which  is  the  mo.st  numerous-  of  all,  are  in- 
cluded the  following  states:  Alabama,  California,  Connecticut, 
Delaware,  Florida,  Georgia,  Illinois,  Iowa.  Kentucky,  Mar34and. 
^lississippi,  Nebraska,  Nevada,  New  Jersey,  North  Carolina,  Ore- 
gon, Rhode  Island,  Tennessee.  Viroinia,  West  Virginia.  Wisconsin, 
,ind  the  I^'nited  States'. 

§  286.  3.  Class  Third.— The  third  class  embraces  those  states 
in  which  the  constitutions  and  statutes  do  not  confer  a  general 
equity  jurisdiction  by  any  single  comprehen.sive  provision,  or  single 
crant  of  power,  but  enumerate  and  specify  the  particular  and 
partial  heads  or  divisions'  of  equity  jurisprudence  over  which  the 
jurisdiction  of  the  courts  shall  extend,  with  various  restrictions 
find  limitations.  Tb.e  equitable  jurisdiction  thus  created  in  any 
state  is  not  co-extensive  with  that  possessed  by  the  English  court 
of  chancery,  but  is  partial,  and  to  a  considerable  extent  fragmen- 
tary, since  the  more  general  clauses  of  the  statutes  have  naturall\' 
been  confined  or  restricted  in  their  judicial  interpretation  by  thc^ 
rnnmeration  of  special  powers  contained  in  other  clauses.  In  all 
these  states  the  legislation  on  the  subject  hns  been  progressive. 
At  an   early  day  the  equity  jurisdiction   was  either  wholly   with- 


5;  287  EQUITY    JURISPRUDENCE.  136 

iliawn  from  the  courts,  or  else  existed  within  extremely  narrow 
bounds,  and  it  has  from  time  to  time  been  enlarged  by  the  legis- 
lature. For  this  reason  the  judicial  decisions  of  all  these  states 
should  be  carefully  examined  and  compared  with  the  statutes  in 
force  at  the  time  when  they  were  rendered;  otherwise  their  true 
scope  and  effect  may  be  misapprehended.  The  following  states 
are  embraced  in  this  class:  Maine,  Massachusetts,  New  Hampshire, 
Pennsylvania. 

§  287.  4.  Class  Fourth. — The  fourth  class  embraces  those  states 
in  which,  from  an  abandonment  of  the  ancient  modes  of  procedure 
i]iherited  from  the  law  of  England,  the  constitutions  and  statutes, 
in  their  grants  of  jurisdiction  to  the  courts,  make  no  distinction 
between,  nor  even  any  mention  of,  either  the  "law"  or  "equity." 
All  these  states,  excepting  Louisiana  and  Texas,  have  adopted  the 
reformed  American  system  of  procedure.  Their  constitutions  and 
statutes  confer  upon  the  courts  complete  power  and  jurisdiction  to 
hear  and  determine  all  civil  causes,  or  to  grant  all  civil  remedies: 
and  they  thus  imi)lieitly  include  a  full  jurisdiction  in  cases  and 
over  remedies  of  an  equitable  character,  as  well  as  those  of  a  legal 
nature.  From  considerations  of  convenience,  and  because  the 
same  principle  of  administration  is  now  common  to  the  whole  group, 
I  have  added  to  this  class  all  those  other  states  which  have  adopted 
the  reformed  procedure,  but  which  have  already  been  mentioned 
either  in  the  first  or  the  second  of  the  foregoing  classes.  As  a 
matter  of  fact,  in  all  the  commonwealths  where  the  reformed  proce- 
dure prevails,  there  is  substantially  the  same  amount  of  equitable 
jurisdiction,  and  there  are  also  the  same  limitations  upon  the  extent 
and  exercise  of  that  jurisdiction  growing  out  of  the  radical  change 
in  the  modes  of  administering  it  efPected  by  the  reformatory  legis- 
lation. The  fourth  class  is  thus  composed  of  the  following  states: 
Arkansas,  Indiana,  Kansas,  Louisiana,  Minnesota,  Missouri,  Ohio, 
South  Carolina,  Texas,  and  those  which  have  already  been  men- 
tioned: California,  Connecticut,  Iowa,  Kentucky,  Nebraska,  Nevada, 
New  York,  North  Carolina,  Oregon,  Wisconsin.  To  these  may  be 
added  several  of  the  territories. 


13T  JUDICIAL   INTKUPKETATION    OF    J  L'lilSDlCTlON.  ^  '^^0 


SECTION  II. 

THE  JURISDICTION  AS  KSTAHI.ISIIKD  BY  JUDICIAL 
INTER  PRETATION . 

ANALYSIS. 

§  289.  The  questions  to  be  examined  stated. 

S  200.  Diversity  of  statutory  interpretation  in  dilTerent  states. 
§§   2()l-'2!t8.   United    States   courts,    equity    jurisdiction   of. 

§  202.  First    principle:       Uniformity    of    jurisdiction. 

§   203.  Second   principle:     Identity   of   jurisdiction. 

§  204.  Third   principle :     Extent    of   the   jurisdiction. 

§  295.  Fourth   principle:     Inadequacy   of   legal   remedies. 
§S  20(i.  207.  illustrations. 

§   297.  Ditto;    effect  of  state  laws  on  the  subject-matter  of  the  jurisdietion. 

§  298.  Territorial   finiitations  on   tlie  jurisdiction. 
§§  200-341.  States    in    which    only    special    arid    jiartial    jurisdiction    has    been 
given   by   statute. 

§  209.  New   Hampshire. 
§§  311-321.  Massachusetts. 
§§  3-22-337.  Maine. 
§§  338-341.  Pennsylvania. 
§§  342-352.  The  other  states   in   which   a   general   jurisdiction   has   been   given. 

§  342.  What  states  are  included  in  this  division. 

§   343.  Questions    to    be   examined    stated. 

S   344.  interpretation    of    statute    limiting    tlie    jurisdiction    to    cases    for 
which  the   legal   remedy  is  inadequate. 

§   345.  General   extent  of  the  statutory  jurisdiction:     the   states   arranged 
in    the    foot-note. 
§§  34(5-352.  How  far  this  equity  jurisdiction  extends  to  the  administration  of 
decedents'   estates. 

§   347.  Probate    courts,    jurisdiction    and    powers    of. 

§   348.  Class    first:       The    ordinary    equity    jurisdiction    over    admini-^( ra- 
tions  expressly   abolished. 

S  349.  Class  second:    Sucli  jurisdiction  practically  abrogated  or  obsolete. 

§  350.  Class    third:     Such    jurisdiction    still    existing    and    actually    con- 
current. 
§§   351,352.  Special    subjects    of    equity    jurisdiction    connected    with    or    grow- 
ing  out   of   administrations. 
§§  353-358.  States  which  have  adopted  the  reformed  system   of  procedure. 

§  354.  General  etfect  of  this  procedure  on  the  equity  jurisdiction. 
§§  333-358.  Its   particular   effects   upon   equity. 

§  356.  On    certain    equitable   interests   and    rights. 

S  357.   [SS  85,  86.   87.]   On   certain   equitable   remedies. 

§  358.  On  the  doctrine  as  to  inadequacy  of  legal  remedies. 

§  290.  Different  Theories  of  Interpretation. — In  the  first  place, 
a  marked  diversity  will  be  foimd  in  the  fnndamental  motives  and 
theory  of  the  judicial  interpretation  put  npon  these  leijislative  pro- 


§  ;391  EQUITY     JURISPRUDENCE.  138 

visions  by  the  courts  of  different  states.  In  some  of  them  a  stron<;' 
tendency  has  been  shown  to  lay  much  stress  upon  the  limiting- 
clauses  contained  in  the  statutory  grants  of  authority,  and  to  give 
a  broad  meaning  and  controlling  operation  to  such  clauses  as  those 
Avhich  restrict  the  equitable  jurisdiction  to  cases  "where  there  is 
no  plain,  adequate,  and  complete  remedy  at  la-sv."  In  others,  the 
tendency  has  been  towards  a  more  liberal  construction ;  to  hold 
that  these  and  similar  clauses  are  simply  declaratory  of  a  familiar 
principle  embodied  in  the  general  theory  of  equit}^  jurisdiction,  and 
add  no  restriction  whatever  to  the  extent  of  jurisdiction  which 
would  have  been  conferred  without  their  presence;  in  short,  that 
they  merely  state  a  limitation  which  is  necessarily  involved  in  the 
very  conception  of  the  equitable  jurisdiction.  In  the  second  place, 
the  apparent  uniformity  in  the  jurisdiction  created  by  these  gen- 
eral provisions  has  been  greatly  interfered  with,  and  even  destroyed, 
by  the  different  systems  of  legislation  adopted  by  various  states^ 
with  reference  to  many  important  branches  of  the  municipal  law, 
v^hich  originally,  and  prior  to  any  statutory  interposition,  formed 
a  part  of  the  equity  jurisprudence.  In  many,  and  perhaps  most, 
of  the  states,  subjects  which  fell  within  the  domain  of  equity,  and 
which  were  governed  by  equitable  doctrines  as  administered  by  the 
court  of  chancery,  have  been  wholly  subjected  to  a  statutory  reg- 
ulation, and  committed  to  special  tribunals,  such  as  the  courts  of 
probate,  so  that  the  interference  of  equity  is  no  longer  necessary, 
even  if  it  is  possible.  Other  departments  of  the  municipal  law" — 
as,  for  example,  trusts  and  married  Avomen's  property — have  been 
modified  by  legislation,  so  that  the  matei'ial  upon  which  the  equity 
jurisdiction  acted  has  been  altered,   limited,   or  perhaps   enlarged. 

§  291.  The  United  States.— The  constitution  of  the  Ignited  States 
recognizes  equity  as  a  i)art  of  the  national  jurisprudence  inherited 
from  England  at  the  time  of  the  Revolution,  and  the  equitable 
jurisdiction  as  a  part  of  the  judicial  powers  conferred  upon 
the  national  tribunals.  The  statutes  of  Congress  have,  as  is 
seen  by  the  extracts  given  in  the  preceding  section,  acted  upon 
this  constitutional  provision ;  and  have,  in  broad  terms,  intrusted 
the  exercise  of  this'  jurisdiction  to  the  courts  of  original  jurisdic- 
tion, which  are  established  throughout  the  states,  and  to  the  su- 
preme court  created  by  the  constitution  as  the  appellate  tribunal 
of  last  resort.  In  giving  a  judicial  interpretation  to  the.se  consti- 
tutional and  statutory  enactments,  the  national  courts  have,  by 
numerous  decisions,  settled  the  following  principles,  Avhich  may 
justly  be  regarded  as  the  foundations  of  the  equitable  powers  pos- 
sessed by  the  national  judiciary. 


139  JUDICIAL    IXTKKI'IIKTATIOX    OF    J IIM  SDILTIOX.  §-!>•> 

§292.  First  Principle:  Uniformity. — The  eciuitable  jurisdiction 
of  the  national  coui't.s,  beiiij;-  derived  wholly  from  the  United  States 
constitution  and  statutes,  exists  uniformly  antl  to  its  full  extent 
throughout  the  entire  Union,  independent  of  and  unatt'ected  liy 
any  state  laws,  or  any  peculiar  system  of  jurisprudence  and  legisla- 
tion adopted  by  individual  states.  It  is  the  same  in  Louisiana  witli 
its  civil  law  code,  in  California  with  its  code  combining  legal  and 
equitable  doctrines,  and  in  New  Jersey,  wdiieh  has  preserved  the 
ancient  English  sj'stem  of  common  law  and  equity  almost  unaffect- 
ed by  modern  legal  reform.  "Whatever  may  be  the  municipal  law 
of  any  particular  state,  either  in  its  substance  or  its  form,  the 
United  States  courts  in  that  state  preserve  their  equitable  jurisdic- 
tion, and  administer  the  equitable  jurisprudence  unchanged  by  such 
local  legislation.  It  follows,  as  a  necessary  consequence  from  this 
principle,  that  the  reformed  system  of  procedure  now  prevailing 
in  many  states  and  territories,  whereby  all  distinction  between 
suits  in  equity  and  at  law  is  abolished,  and  all  rights  are  main- 
tained and  all  reliefs  procured  by  means  of  one  judicial  proceeding, 
called  the  "civil  action,"  has  not  in  the  least  affected  either  the 
doctrines  of  etiuity  jurisprudence  administered,  nor  the  extent  and 
modes  of  equity  jurisdiction  exercised,  by  the  national  courts  situ- 
ated and  acting  Avithin  the  same  commonwealth.^ 

§  293.  Second  Principle :  Identity. — The  second  principle  is  a 
corollary  of  the  first.  The  eciuitable  jurisdiction  is  the  same  with 
respect  to  its  nature  and  extent  in  all  the  states,  and  is  wholly  un- 
modified and  unabridged  by  state  legislation  which  deals  Avith  sub- 
jects belonging  to  the  general  system  of  equity  jurisprudence.  State 
laws  subtracting  from  or  limiting  the  scope  of  equity  do  not  act 
upon  the  equitable  powers  and  jurisdiction  held  by  the  national 
•vnirts.  But  while  state  legislation  cannot  thus  influence  the  juris- 
diction negatively  so  as  to  narroAv  it.  it  may  operate  affirmatively 
50  as,  at  least  indirectly,  to  enlarge  it.  The  actual  jurisdiction  of 
the  Ignited  States  courts  in  large  measure  depends  upon  the  per- 

'This  result  of  the  principle  stated  in  the  text  is  recognized  and  followed  by 
the  most  recent  legislation  of  Congress  upon  the  subject.  U.  S.  Rev.  Stats., 
§  914  (Laws  of  1872,  chap.  255,  §  5,  17  Stats  at  Large,  p.  197),  provides  that 
practice,  pleading,  forms,  and  modes  of  proceeding  in  civil  causes,  other  than  in 
equity  or  in  admirnlfi/.  shall  ronform  as  near  as  may  be  to  the  forms,  pleading, 
etc.,  existing  at  the  time  in  like  causes  in  the  courts  of  record  of  the  state 
within  which  the  United  States  court  is  held.  This  provision  preserves  the 
equity  methods  unchanged  by  the  state  laws.  The  following  cases  maintain  the 
doctrine  fonuulatod  in  tlie  text:  Bennett  v.  Butterworth,  11  How.  6G9.  074, 
6~5:  Thompson  v.  Railroad  Co..  0  Wall.  1.34.  137;  Burnes  v.  Scott,  117  I"^.  S. 
5S2.  587.  r>  Sup.  Ct.  SfiS :  New  Orh'nns  v.  Louisiana  Construction  Co..  129  V.  S. 
46,  9  Sup.  Ct.  22.'?   (('(piity  jurisdiction  of  the  fnitcd  States  courts  in  Louisiana). 


§  2do  EQUITY     JUUISl'KLDENCK.  14.0 

sonality  of  the  litigant  parties. — their  state  citizenship. — and  ex- 
tends to  all  subject-matters  belonginu'  to  such  tribunals.  The  pri- 
mary rights,  interests,  or  estates  of  the  litigant  parties,  which  are 
dealt  Avith  by  the  exercise  of  this  jurisdiction,  must  often,  therefore, 
be  created  by  state  laws,  and  not  by  statutes  of  Congress.  It  has 
accordingly  been  repeatedly  held  that  while  the  equitable  jurisdic- 
tion cannot  be  narrowed  or  limited  by  any  state  legislative  or 
judicial  action,  on  the  other  hand,  if  equitable  primary  rights,  inter- 
ests, or  estates  have  been  enlarged,  or  if  entirely  new  equitable 
primary  rights  or  interests  have  been  created,  by  state  laws,  such 
enlarged  or  new  rights  Avill  necessarily  come  within  the  equity  juris- 
diction of  the  national  courts,  and  may  be  protected,  maintained, 
and  enforced  in  appropriate  suits  by  proper  remedies.^  A  very 
striking  illustration  of  this  principle  may  be  seen  in  the  power  of 
the  United  States  circuit  courts  to  entertain  a  suit  for  the  general 
administration  and  settlement  of  a  decedent's  personal  estate,  when 
the  citizenship  of  the  parties  is  such  as  to  confer  the  jurisdiction. 
In  very  many  of  the  states  the  whole  subject  of  administration  has 
been  taken  from  the  equity  tribunals,  and  conferred  upon  probate 
courts  acting  under  special  statutory  authority.  This  legislation, 
it  is  held,  has  not  affected  the  original  equitable  jurisdiction  of  the 
national  courts  sitting  in  such  states,  nor  interfered  with  their 
power  to  entertain  a  suit  for  administration  in  a  proper  case.- 

^  Equity  Jurisdiction  not  Miridfied  hi/  ,^tatc  Lcgifslalion. — See  next  note;  and 
for  further  illustration.  United  States  v.  Howland,  4  Wheat.  108;  Edwards  v. 
Hill.   59   Fed.   72.3,    19   I'.    S.   App.   49.3. 

-  Eiilorgenieui  of  ■hirist(Urlion  «.s  Result  of  i^IuIp  Lec/islatio)!. — "Althoug^h  a 
state  law  cannot  give  jurisdiction  to  any  federal  court,  yet  it  may  give  a  sub- 
stantial right  of  such  a  character  tliat,  when  there  is  no  impediment  arising  from 
the  residence  of  the  parties,  the  riiiht  may  be  enforced  in  the  proper  federal  tri- 
bunal, whether  it  be  a  court  of  (Mpiity.  admiralty,  or  of  common  law;"  Reynolds 
V.  Crawfordsville  Bank,  112  V.  S.  410,  5  Sup.  C't.  210.  This  principle,  how- 
ever, is  sid^ject  to  important  limitations  produced  by  section  723  of  the  Revised 
Statutes,  and  by  the  seventh  amendment  of  the  Constitution  of  the  United  States. 
The  state  law  '"cannot  control  the  proceedings  in  the  federal  courts,  so  as  to  do 
away  with  the  force  of  the  law  of  congress  declaring  that  'suits  in  equity  shall 
not  be  sustained  in  either  of  the  courts  of  the  United  States,  in  any  case  where 
a  plain,  adequate,  and  comi)lete  remedy  may  be  had  at  law.'  or  the  constitu- 
tional right  of  parties  in  actions  at  law  to  a  trial  by  a  juiy:"  Whitehead  v. 
Shattuck,  138  U.  S.  140.  11  Sup.  Ct.  277.  by  Field,  J.  "All  actions  which  seek  to 
recover  specific  pro]ierty,  real  or  personal,  with  or  without  damages  for  its 
detention,  or  a  money  judgment  for  breach  of  a  simple  contract,  or  as  damages 
for  injury  to  person  or  property,  are  legal  actions,  and  can  be  brought  in  the 
federal  courts  only  on  their  law  side.  Demands  of  this  kind  do  not  lose  their 
character  as  claims  cognizable  in  the  courts  of  the  T'^nited  States  only  on  their 
law  side,  because  in  some  state  courts,  by  virtue  of  state  legislation,  equitable 
relief  in  aid  of  the  demand  at  law  may  be  sought  in  the  same  action.  Such 
blending  of  remedies  is  not  permissible  in  the  courts  of  the  United  States;" 
Scott  v.  Neely.  140  IT.  s.  100.  11  Sup.  Ct.  712,  714,  by  Field.  .1. 


141  JIDICIAL    IXTEKPKKTATIOX    OF    ,7  UKl  SDICTIOX.  §  2d^ 

§294.  Third  Principle:  Extent.— The  third  principle  relates 
to  the  extent  of  the  jurisdiction.     While  the  equitable  jurisdiction 

It  is  often  a  (juestion  of  doubt  \vh('(li(>r  the  now  right  or  reniedj'  is  logal  oi 
equitable  in  its  natuie.  ■"Whenever  a  new  riglit  is  granted  bj'  statute,  or  a  new 
remedy  for  violation  of  an  old  rigiit,  or  whenever  such  rights  and  remedies  are 
dependent  on  state  statutes  or  acts  of  Congress,  the  jurisdiction  of  such  cases, 
as  between  the  law  side  and  the  equity  side  of  the  federal  courts,  must  be  de- 
termined by  the  essential  character  of  the  case;  and  unless  it  comes  within 
some  of  the  recognized  heads  of  equitable  jurisdiction,  it  must  be  held  to  be- 
long to  the  other."    Van  Xorden  v.  Morton,  1)9  U.  S.   378,  380,  2,5  L.  ed.   455. 

Thus,  proceedings  to  enforce  a  mechanics'  or  laborers'  lien,  where  the  state 
statute  gives  an  action  at  law  for  the  purpose,  should  be  brought  on  the  equity 
side  of  the  L'nited  States  court.  Tiius  proceedings  to  enforce  a  mechanics'  or 
laborers'  lien  where  the  state  statute  gives  an  action  at  law  for  the  purpose 
should  be  brought  on  the  equity  side  of  the  United  States  court :  Sheffield  Fur- 
nace Co.  V.  VVitherow,  140  U.  S.  574,  579,  13  Sup.  Ct.  936,  939. 

Enlargement  of  Jurisdiction ;  Statutorij  Suit  to  Quiet  Title. — A  frequent 
application  of  these  principles  is  found  in  the  federal  jurisdiction  over  statutory 
^uits  to  quiet  title.  In  the  absence  of  statute,  an  owner  of  land  can  protect  his 
title  in  equity  only  I»y  a  bill  of  peace  or  by  a  bill  quia  timet  to  remove  a  cloud 
upon  the  title.  A  bill  of  peace  properly  lies  against  an  individual  reiterating 
an  unsviccessful  claim  to  real  property  only  where  the  plaintiff  is  in  possession 
and  his  right  lias  been  successfully  maintained  at  law.  The  equity  arises  from  the 
protracted  litigation  for  the  possession  which  the  common-law  action  of  ejectment 
permits.  A  bill  quia  timet  to  remove  cloud  upon  title  differs  from  a  bill  of 
peace  in  that  it  does  not  seek  so  much  to  ]int  an  end  to  vexatious  litigation  as 
to  prevent  future  litigation  by  removing  existing  causes  of  controversy  as  to 
the  title.  To  maintain  a  suit  of  this  character  it  is  generally  necessary  that 
plaintiff  be  in  possession,  and,  except  where  the  defendants  are  numerous,  that 
his  title  be  established  at  law  or  founded  on  undisputed  evidence  or  long-continued 
possession.  The  statutes  in  various  states  authorize  a  suit  in  either  of  these 
classes  of  cases  without  reference  to  any  previous  judicial  determination  of  the 
validity  of  the  plaintiff's  right,  and,  in  some  instances,  without  reference  to 
his   possession. 

Where  the  statute  limits  the  right  to  parties  in  possession,  the  federal  courts 
will  take  jurisdiction  without  question.  'I'ho  point  arose  in  tlie  early  ease  of 
Clark  V.  Smith,  13  Pet.  105,  203,  where  the  right  was  claimed  under  a  statute 
of  Kentucky.  Catron,  .1..  said:  "Kentucky  has  the  inidoubted  power  to  regu- 
late and  protect  individual  rights  to  her  soil,  and  to  declare  Avhat  shall  form 
a  cloud  on  titles;  and  having  so  declared,  the  courts  of  the  United  States, 
by  removing  such  clouds,  are  only  applying  an  old  practice  to  a  new  equity 
created  by  the  legislature,  having  its  origin  in  the  peculiar  condition  of  the 
country."  For  a  re\iew  of  the  supreme  court  decisi<nis  up  to  1804,  see  Wehrman 
V.  Conklin,  155  V.  S.  314.  15  Sup.  Ct.  l:?2. 

Where  the  stntute  allows  a  suit  by  a  party  ont  of  possession,  a  federal  court 
Avill  not  as  a  general  rule  enforce  it  if  the  complainant  is,  as  a  matter  of  fact, 
out  of  possession,  and  defendant  is  in  ))Ossessioti.  It  is  )irovided  by  Rev. 
Stats.,  §723,  that  federal  equity  courts  shall  not  have  jurisdiction  where  a 
plain,  complete,  and  adequate  remedy  may  be  had  at  law,  and  the  seventh 
amendment  to  the  constitution  of  the  United  States  secures  the  right  of  jury 
trial  in  all  actions  at  law  where  the  value  in  controversy  exceeds  twenty 
dollars.      ^Yhen    th?    nlaintiff    i<    out    of    and    t'le    t]efen<lajit    in    possession,    the 


1394  EQUITY     JUiasi'UUDEXCE.  142 

of  the  national  courts  is  derived  wholly  from  the  United  States 
constitution  and  statutes,  it  is  identical  or  equivalent  in  extent 
with  that  possessed  by  the  English  high  court  of  chancery  at  the 
time  of  the  Eevolution.  The  judicial  functions  and  powers  of  tlie 
English  court  of  chancery  are  held  to  have  been  conferred  en  masse 

remeclj-  by  ejectment  is  said  to  be  adequate,  and  there  must  be  a  jury  trial 
if  desired.  "The  riyht  \vhich  in  this  case  the  plaintiflf  wishes  to  assei't  is  his 
title  to  certain  property ;  the  remedy  which  he  Avishes  to  obtain  is  its  possession 
and  enjoyment;  and  in  a  contest  over  the  title  both  parties  have  a  constitutional 
right  to  call  for  a  jury."  Whitehead  v.  Shattuek,  138  U.  S.  14(3,  11  Sup.  Ct. 
276,  277. 

Where  neither  party  is  in  possession  and  the  land  is  unoccupied,  the  case  is 
difierent.  In  such  a  case  there  can  be  no  controversy  at  law  respecting  the  title 
or  right  of  possession,  for  an  action  of  ejectment  will  lie  only  against  a  party 
in  possession.  Accordingly  the  federal  courts  will  take  jurisdiction  and  enforce 
the  equitable  right.     Holland  v.   Challen,   110  U.   S.   IG,  .3   Sup.   Ct.   495. 

Statutory  Creditors'  Suits  by  Simple  Contract  Creditors. — In  some  of  the  states 
statutes  have  been  passed  allowing  simple  contract  creditors  to  maintain 
creditors'  bills  without  the  establishment  of  their  claims  at  law.  The  supreme 
court  has  declined  to  enforce  these  statutes.  In  the  leading  case  of  Scott  v. 
Neely,  140  U.  S.  100,  11  Sup.  Ct.  712,  -Justice  Field  says:  "All  actions  which  seek 
to  recover  specific  property,  real  or  personal,  with  or  without  damages  for  its 
detention,  or  a  money  judgment  for  breach  of  a  simple  contract,  or  as  damages 
for  injury  to  person  or  property,  are  legal  actions,  and  can  be  brought  in  the 
federal  courts  only  on  the  law  side.  Demands  of  this  kind  do  not  lose  their 
character  as  claims  cognizable  in  the  courts  of  the  United  States  only  on  their 
law  side,  because  in  some  state  courts,  by  virtue  of  state  legislation,  equitable 
relief  in  aid  of  the  demand  at  law  may  be  sought  in  the  same  action.  Such 
blending  of  remedies  is  not  permissible  in  the  courts  of  the  United  States." 

In  Cates  v.  Allen,  149  U.  S.  457,  13  Sup.  Ct.  883,  however,  there  is  a  vigorous 
dissenting  opinion  by  Mr.  Justice  Brown,  which  seems  to  have  much  reason 
on  its  side  (13  Sup.  Ct.  977).  He  held  that  the  statute  creates  a  substantial 
right  which  the  federal  courts  should  enforce.  See  also,  Darragh  v.  H.  Wetter 
Mfg.  Co.,  78  Fed.  7,  23  C.  C.  A.  009,  where  a  bill  by  a  simple  contract  creditor 
to  wind  up  a  corporation  was  allowed,  under  a  statute  of  Arkansas. 

-Jurisdiction  in  Matters  of  Administration. — See  Payne  v.  Hook,  7  Wall. 
425,  430  (suit  by  distributee  to  set  aside  a  fraudulent  distribution  of  the  es- 
tate) ;  Borer  v.  Chapman,  119  U.  S.  587,  600,  7  Sup.  Ct.  342,  348  (suit  by  cred- 
itor of  decedent  to  establish  his  claim)  ;  Ball  v.  Tompkins,  41  Fed.  486:  Hale 
V.  Tyler,  115  Fed.  833  (to  set  aside  a  fraudulent  conveyance  by  decedent). 
The  jurisdiction  does  not  extend,  however,  to  matters  which,  in  England,  were 
conunitted  exclusively  to  the  ecclesiastical  courts,  such  as  the  probate  of  a  will 
or  the  setting  aside  of  probate:  In  re  Broderick's  Will.  21  Wall.  503; 
Oakley  v.  Taylor,  64  Fed.  25:  but  see  Williams  v.  Crabb,  117  Fed.  193,  59  L. 
R.  A.  425  ( if  the  state  statute  has  conferred  jurisdiction  on  courts  of  equity  to 
set  aside  wills  or  the  probate  thereof,  it  will  be  followed  by  the  United  States 
courts).  The  jurisdiction  is  also  subject  to  the  important  qualification,  that 
in  the  exercise  thereof  the  United  States  courts  can  not  seize  or  control  property 
while  in  the  custody  of  a  court  of  the  state:  Byers  v.  McAuley,  149  U.  S.  ^ 
616,  13  Sup.  Ct.  908:  as  to  what  constitutes  such  disturbance  of  the  state  court's 
possession,  see  also  Payne  v.  Hook,  Borer  v.  Chapman,  Ball  v.  Tompkins,  and 
Hale  V.  Tyler,  supra. 


143  JUDICIAL  intki;i'i;i:tatiox  of  jluisdktiox.  ^'2di) 

upon  the  national  judiciary;  but  not  the  peculiar  administrative 
functions  held  by  the  chancellor  as  representative  of  the  crown  in 
its  character  of  parens  patriae.  These  latter  functions  of  the  Knylish 
■chancellor  have  not  been  yiranted  to  the  United  States  courts,  but  are 
given  to  the  several  states,  and  are  exercised  either  b}'  the  state 
legislatures  or  by  the  state  triburuils.  The  Ignited  States  supreme 
court  has  frequently  laid  down  and  acted  upon  this  principle  in 
deciding  cases  brought  for  the  purpose  of  enforcing  charitable 
trusts,^ 

§295.  Fourth  Principle:  Inadequacy  of  Legal  Remedies. — The 
fourth  principle  also  relates  to  the  extent  of  the  equitable  jurisdic- 
tion, as  that  is  affected  by  the  most  important  provision  of  the 
statute.^  In  the  judicial  interpretation  of  this  clause,  it  has  been 
"vvell  settled  that  the  section  of  the  statute  is  merely  declaratory  of 
a  familiar  doctrine  belonging  to  the  general  system  of  equity  juris- 
diction and  jurisprudence.  It  docs  not  take  away  or  abridge  the 
jurisdiction  which  is  affirmatively  granted,  nor  deprive  the  United 
States  courts  of  any  part  of  the  field  of  powers  occupied  by  the 
English  court  of  chancery  so  far  as  the  functions  of  that  tribunal 
are  judicial.  In  short,  this  section  does  not  substantially  affect 
the  equitable  jurisdiction  of  the  national  courts;  their  powers  would 
liave  been  the  same,  aud  subject  to  the  same  limits,  if  the  provision 
liad  not  been  enacted. - 

§  296.  Illustrations.— The  four  foregoing  principles  may  be  just- 
ly regarded,  I  think,  as  the  very  foundations  of  the  equitable  juris- 
diction of  the  United  States  courts.  They  give  it  whatever  peculiar 
character  it  possesses  growing  out  of  the  double  organization  of 
the  national  and  state  governments,  and  they  clearly  distinguish 
it  from  the  jurisdiction  possessed  by  any  state  tribunals.  In  the 
practical  administration  of  their  equitable  poAvers,  the  national 
judiciary  have  constantly  affirmed  and  steadily  adhered  to  the 
doctrine  in  its  negative  form,  that  the  equitable  jurisdiction  does 
not  exist,  or  will  not  be  exercised,  in  any  case  or  under  any  circum- 
stances where  there  is  an  adequate,  complete,  and  certain  remedy 
at  law,  sufficient  to  meet  all  the  demands  of  justice.^ 

'1  refer  to  the  United  JStates  Revised  Statutes,  section  72."},  beinj,'  the 
same  as  section  16  of  the  Judiciary  Act  of  1789. 

*  Fontain  v.  Ravencl,  17  How.  3G1);  Mormon  Cliiircl)  v.  United  States,  13(j 
U.  S.   1. 

=  Boyce's  Executors  v.  Grundy.  .3  Pet.  210,  215,  Shep.  19;  McConihay  v. 
Wright,  121  U.  S.  20. 

1  Grand  Chute  v.  Winegar,  15  \\all.  .373,  2  Ames  Eq.  Jur.  116;  Lewis  v. 
Cocks,  23  Wall.  466,  Shep.  17;  Buzard  v.  Houston,  119  U.  S.  347,  4  Sup.  Ct. 
249,  H.  &  B.  268,  3  Keener  487:  Killian  v.  Ebbinghaus,  110  U.  S.  5f)8; 
Insurance  Co.  v.  Bailey,  13  Wall.  GIG,  20  L.  ed.  501. 


§  297  EQUITY    JUIUSPKUDENCE,  14-1; 

§  297.  Effect  of  State  Laws. — On  the  other  hand,  the  affirmative 
form  of  the  rule  has  also  been  uniformly  asserted  and  maintained, 
that  the  equitable  jurisdiction  exists  and  will  be  exercised  in  all 
cases,  and  under  all  circumstances,  where  the  remedy  at  law  is  not 
adequate,  complete,  and  certain,  so  as  to  meet  all  the  requirements 
of  justice.  That  there  is  a  legal  remedy  is  not  enough ;  such  rem- 
edy, in  order  to  oust  or  prevent  the  equitable  jurisdiction,  must  be 
m  all  respects  as  satisfactory  as  the  relief  furnished  by  a  court  of 
equity.^  ...  In  order  to  prevent  a  misconception  of  the  fore- 
going rules  concerning  the  equitable  jurisdiction  of  the  national 
courts,  there  is  one  limitation  which  must  be  constantly  borne  in 
mind.  Since  the  original  jurisdiction  of  the  United  States'  courts — 
especially  of  the  circuit  courts — in  large  measure  depends  upon  the 
state  citizenship  of  the  litigant  parties  as  its  sole  basis,  it  follows 
that  in  some  cases  of  ordinary  controversies — in  all  those  which 
do  not  directly  arise  under  statutes  of  Congress  or  provisions  of 
the  United  States  constitution — the  subject-matter  of  the  suit,  the 
primary  rights,  interests,  or  estates  to  be  maintained  and  protected, 
are  created  and  regulated  by  state  law.s  alone.  While,  therefore, 
it  is  correctly  held  that  the  eciuitable  jurisdiction  of  the  national 
courts,  theii-  power  to  entertain  and  decide  equitable  suits  and  to 
grant  the  remedies  properly  belonging  to  a  court  of  equity,  is  whol- 
ly derived  from  the  constitution  and  laws  of  the  United  States,  and 
is  utterly  unabridged  by  any  state  legislation,  yet,  on  the  other 
hand,  the  primary  rights,  interests,  and  estates  which  are  dealt  with 
in  such  suits  and  are  protected  bj^  such  remedies  are  within  the 
scope  of  state  authority,  and  may  be  altered,  enlarged,  or  restricted 
by  state  laws.-  The  equitable  jurisdiction  of  the  national  courts 
is  not  directly  affected  b}'  the  state  statutes,  but  what  may  be  final- 
ly accomplished  by  the  exercise  of  that  jurisdiction,  what  estates, 
property  rights,  and  other  interests  of  the  litigants  may  be  main- 
tained, enforced,  or  enjoyed  by  its  means,  must  depend  to  a  great 
extent  upon  the  policy  of  legislation  adopted  in  eai-h  individual 
state. 

*  Baker  v.  F.iddlo,  1  J'.ald.  SiM,  403-111;  Mann  v.  Appel,  31  Fed.  378,  383; 
Watson  V.  Sutherland,  5  Wall.  74,  1  Ames  Eq.  Jur.  531,  H.  &  B.  741,  Shep. 
22,  1  Scott  134;  Bodley  v.  Taylor,  5  Cranch.  191,  221,  222;  Boj^ce's  Ex'rs  V. 
Grnndy,  3  Pet.  210,  215,  Shep.   19. 

==As  a  familiar  illustration  of  this  proposition,  1  mention  the  statutes  in 
many  states  modifying  and  reconstructing  the  whole  subject  of  trusts  in  real 
and  personal  property,  and  creating  the  separate  property  of  married  women, 
and  the.  like.  While  such  state  statutes  do  not  abridge  the  jurisdiction  of 
the  national  courts  to  entertain  equitable  suits  concerning  trusts  or  married 
women's  property,  ihey.  of  conrsp.  (h-termine  the  rights  growing  out  of  these 
Trusts   or   of  the   marri('(l    women    holding   separate   property. 


145  JUDICIAL   JNTKltrKETATlON    OF    J  L  UlSDICTION.  §345 

§  344.  Special  Statutory  Limitation — Inadequacy  of  Legal  Rem- 
edies.— In  most  of  tlie  .states  where  the  legislation  contains  the 
chtuse  expressly  declaring  that  the  equitable  jurisdiction  shall  not 
extend  to  cases  for  which  the  legal  remedy  is  adequate,  the  courts 
have  followed  the  example  set  by  the  national  judiciary,  and  have 
firmly  established  the  doctrine  that  this  clause  is  simply  declaratory 
of  a  principle  inherent  in  the  very  conception  of  equity  as  a  de- 
partment of  the  municipal  law^;  that  it  produces  no  practical  effect 
whatever  upon  the  extent  and  nature  of  the  general  jurisdiction 
otherwise  conferred,  but  leaves  that  jurisdiction  exactly  what  it 
would  have  been  had  the  limiting  language  never  been  incorporated 
into  the  statute.  The  clause,  therefore,  is  not  regarded  as  forming 
aiiy  new  and  statutory  test  or  criterion  of  the  jurisdiction;  and  the 
equitable  powers  of  the  courts  are  determined  by  the  other  and 
more  general  provisions  of  the  statutes  and  by  the  universal  prin- 
ciples of  equity  jurisprudence.  The  equitable  jurisdiction  in  these 
states  is  held  to  be  a  complete  and  comprehensive  system,  except 
so  far  as  it  may  have  been  abridged,  with  respect  to  particular 
branches  or  subjects,  by  the  restrictive  operation  of  other  statutes.^ 
In  a  very  few  states,  however,  the  narrower  mode  of  interpretation, 
siihilar  to  that  wdiich  long  prevailed  in  Massachusetts,  has  been 
adopted.  The  clause  is  treated  as  creating  a  statutory,  new,  and 
eifective  measure  of  the  equitable  jurisdiction,  restricting  its  opera- 
tion and  preventing  its  exercise  in  any  cases  for  which  there  is  an 
adequate  remedy  at  law,  even  though  such  cases  were  undoubtedly 
embraced  within  the  jurisdiction  according  to  its  original  un- 
abiidged  extent  and  nature. - 

§  345.  Extent  of  the  General  Statutory  Jurisdiction. — The  stat- 
utes of  the  remaining  states  composing  the  first,  second,  and  fourth 
classes  as  heretofore  arranged,  are.  with  few  exceptions,  as  we  have 
seen,  grants  of  general  etiuitable  jurisdiction  described  in  somewhat 
vague  terms,  but  all  of  them  without  any  negative  language  or  ex- 
press limitation  upon  the  nature  and  extent  of  this  jurisdiction. 
.  .  .  The  doctrine  is  established  throughout  all  the  states  now 
under  consideration — w^hether  the  legislation  confers  a  jurisdiction 
in  express  terms'  ecpiivalent  to  that  held  by  the  English  chancery, 
or  confers  such  a  jurisdiction  by  implication,  or  in  abolishing  the 
distinctions  between  legal  and  equitable  forms  of  procedure  confers 
a  jurisdiction  to  decide  all  civil  actions — that  a  complete  equitable 
jurisdiction  commensurate  in  its  extent  wnth  that  belonging  to  the 
English  court  of  chancery,  and  coincident  in  its  operation  with  the 

'  Ro    in    Orpjron.    Alabama,    Arkansas.    Missouri. 
'  So  in   South   Carolina,  Connecticut,  Delaware. 
10 


§  354  EQUITY    JUK1S1'1!UDE>;CE.  146 

entire  domain  of  equity  jurisprudenee,  exists  in  each  one  of  these 
states,  is  possessed  by  some  designated  tribunals,  and  may  be  exer- 
cised by  them  in  the  modes  of  procedure  established  or  sanctioned 
by  law. 

§  353.  States  Which  have  Adopted  the  Reformed  System  of 
Procedure. — 

§  354.  Its  General  Effect  on  the  Jurisdiction. — The  reformed 
procedure,  in  its  abolition  of  all  distinction  between  actions  at  law 
and  suits  in  eciuity;  in  its  abrogation  of  the  common-law  forms  of 
Miction,  and  its  institution  of  one  "civil  action"  for  all  remedial 
purposes;  in  its  allowing  both  legal  and  equitable  rights  to  be 
maintained,  and  legal  and  equitable  remedies  to  be  conferred  in 
combination  by  the  single  "civil  action;"  and  in  the  uniform  rules 
'A'hich  it  has  established  for  the  regulation  of  this  civil  action  when- 
ever and  for  whatever  purposes  it  may  be  used, — purports  to  deal 
with,  and  does  in  fact  deal  with,  the  pruccdurc  alone,  with  the  mere 
instrunientalities,  modes,  and  external  forms  by  which  justice  is 
administered,  rights  are  protected,  and  remedies  are  conferred.  The 
new  system  was  not  intended  to  affect,  and  does  not  atfect,  the 
differences  which  have  heretofore  existed,  and  still  exist,  between 
the  separate  departments  of  "law"  and  "ecjuity;"  it  was  not  in- 
tended to  affect,  and  does  not  aff'ect,  the  settled  principles,  doc- 
trines, and  rules  of  ecpiity  jurisprudence  and  equity  jurisdiction. 
To  sum  up  this  result  in  one  brief  statement,  all  equitable  estates, 
interests,  and  primary  rights,  and  all  the  principles,  doctrines,  and 
rules  of  the  equity  jurisprudence  by  which  they  are  defined,  deter- 
mined, and  regulated,  remain  absolutely  untouched,  in  their  fidl 
force  and  extent,  as  much  as  though  a  separate  court  of  chancery 
were  still  preserved.  In  like  manner  all  equitable  remedies  and 
remedial  rights. — that  is,  the  equitable  causes  of  action,  and  the 
rights  to  obtain  the  reliefs  appropriate  therefor,— and  the  doc- 
trines and  rules  of  equity  jurisprudence  which  define  and  deter- 
mine these  remedies  and  remedial  rights,  and  the  doctrines  and 
rules'  of  equity  jurisdiction  which  govern  and  regulate,  not  the  mere 
,'nioilc  of  obtaining  them,  but  the  fact  of  obtaining  such  remedies, 
also  remain  wholly  unchanged,  and  still  control  the  action  of 
courts  in  thef  administration  of  justice.  "While  the  external  distinc- 
tions of  form  between  suits  in  equity  and  actions  at  law  have  been 
abrogated,  the  essential  distinctions  which  inhere  in  the  very  nature 
of  equitable  and  legal  primary  or  remedial  rights  still  exist  as 
clearly  defined  as  before  the  system  was  adopted,  and  must  con- 
tinue to  exist  until  the  peculiar  features  of  the  common  law  are 
destroyed,  and  the  entire  municipal  jurisprudence  of  the  r,tate  is 
transformed    into    equity.     If.   therefore,   the    facts   stated   in   the 


147  JUDICIAL  ixti:i!1'I!i:tation  of  jukisdictiox.  §  85 

pleadings  show  that  the  primary  rights,  the  cause  of  action,  and  the 
remedy  to  be  obtained  are  legal,  then  the  action  is  one  at  law,  and 
falls  within  the  jurisdiction  at  law.  If,  on  the  other  hand,  the  facts 
stated  show  that  the  primary  rights,  or  the  cause  of  action,  or  the 
remedy  to  be  obtained  are  equitable,  then  the  action  itself  is  equit- 
able, governed  by  doctrines  of  the  equity  jurisprudence,  and  falling 
within  the  equitable  jurisdiction  of  the  court.  It  should  be  care- 
fully observed,  however,  that,  under  the  reformed  system  of  proce- 
dure, the  same  action  may  be  both  legal  and  equitable  in  its  na- 
ture, since  it  may  combine  both  legal  and  equitable  primary  rights, 
causes  of  action,  defenses,  and  remedies.  It  is  this  fact  which,  more 
than  any  other,  has  tended  to  produce  whatever  confusion  may 
liave  arisen  in  the  actual  workings  of  the  new  system.     .     .     . 

§  355.  Its  Particular  Effects. — While  this  unanimous  conclusion 
of  the  courts  is,  in  general,  correct;  while,  when  we  look  at  the 
effects  of  the  reformed  procedure  as  a  whole, — en  masse, — it  is  true 
that  equity  and  the  law  remain  unchanged,^still,  this  proposition 
is  not  true  in  every  particular;  there  are  some  important  and  neces- 
sary limitations.     .     .     . 

§  356.  On  Certain  Equitable  Interests. — The  first  and  most  palp- 
able of  these  necessary  changes  is  the  complete  abrogation  of  a 
certain  class  of  equitable  primary  rights,  and  the  transformation 
of  them  into  strictly  legal  rights.^ 

§  357.  On  Certain  Equitable  Remedies. — But  there  is  another 
and  still  more  important  limitation  of  the  general  proposition. 
AVhile  it  is  undoubtedly  true  that  with  the  exception  just  men- 
tioned of  the  right  conferred  upon  the  direct  assignee  of  a  legal 
thing  in  action,  all  the  equitable  estates,  interests,  property,  liens, 
and  other  primary  rights  recognized  by  the  equity  jurisprudence, 
and  all  the  principles,  doctrines,  and  rules  of  that  jurisprudence 
which  define  them,  determine  their  existence,  and  regulate  their 
acquisition,  transfer,  and  enjoyment,  are  untouched  and  unaft"'eeted, 
it  is  no  less  true  that  some  of  the  equitable  remedies  and  remedial 
rights  belonging  to  the  equity  jurisprudence,  and  coming  within 
the  equity  jurisdiction,  are  materially  modified,  if  not  indeed  de- 
stroyed as  equitable  remedies  and  remedial  rights,  by  the  reformed 
procedure. 

§  85.  In  the  first  place,  the  permission  to  set  up  an  equitable 
defense  against  a  legal  cause  of  action  has  in  a  great  number  of 
instances  removed  all  occasion  for  bringing  a  suit  in  equity  by 
whir-h  tho  equitable  right  of  the  defendant  constituting  his  defense 

^  Tlie  author  iiistancos  the  riglit  of  tlio  assignee  of  a  thing  in  action,  which, 
under  the  Codes,  is  transformed  into  a   legal  right;    see  post,  §§   1270-1279. 


§  86  EQUITY    JURISPRUDENCE.  148 

may  be  established  and  the  prosecution  of  the  k^gai  action  may  be 
restrained.  I  take  a  simple  example  of  a  very  large  class  of  cases. 
A.  the  vendor  in  a  contract  for  the  sale  of  land,  brings  an  action 
of  ejectment  against  B,  the  vendee,  who  is  in  possession,  and  hav- 
ing the  legal  title,  must  of  course  recover  at  law.  B  was  therefore 
obliged  to  file  a  bill  in  equity  against  A,  and  t)btain  thereby  a  de- 
cree of  specific  performance,  and  in  the  mean  time  an  injunction 
restraining  the  further  prosecution  of  the  action  at  law.  Having 
obtained  a  conveyance  of  the  legal  title  under  his  decree,  B  would 
be  in  a  position  to  defend  the  action  of  ejectment,  or  any  subse- 
quent one  which  might  be  brought  against  him.  By  the  reformed 
procedure,  when  the  vendor  commences  a  legal  action  to  recover 
possession  of  the  land  from  the  vendee,  the  latter  need  not  resort 
to  a  second  equitable  suit,  nor  obtain  an  injunction.  The  Avhole 
controversy  is  determined  in  the  one  proceeding.  B's  equitable 
estate  and  right  to  a  conveyance  is  not  only  a  negative  defense  to 
A's  legal  cause  of  action,  but  entitles  B  in  the  same  action  to  as- 
sume the  position  of  an  actor,  and  to  obtain  the  full  affirmative  relief 
which  he  would  formerly  have  obtained  by  his  separate  bill  in 
equity, — a  decree  for  a  specific  performance  and  a  conveyance  of 
the  legal  estate.  Although  no  substantial  doctrines  of  equity  have 
been  altered,  still,  the  vendee  is  no  longer  compelled  in  such  cir- 
cumstances to  sue  in  equity,  nor  to  demand  the  ancillary  remedy 
of  an  injunction. 

§  86.  This  familiar  example  may  be  generalized  into  the  fol- 
lowing universal  proposition :  Whenever,  under  the  former  proce- 
dure, one  party,  A,  had  a  legal  estate  or  right  which  entitled  him 
to  recover  in  an  action  at  law  brought  against  B ;  and  where  B, 
having  no  legal  defense  to  this  action,  was  still  possessed  of  an 
ecjuitable  estate  or  right  which  entitled  him  to  some  particular 
affirmative  equitable  remedy, — as,  for  example,  a  specific  perform- 
ance, a  reformation  or  correction,  a  cancellation,  a  rescission,  etc., 
--which  remedy  when  obtained  would  clothe  him  with  the  legal 
estate  or  right,  and  enal)le  him  thereby  to  defeat  the  plaintiff  A's 
action  at  law;  and  where,  under  these  circumstances.  B  would  be 
obliged  to  go  into  a  couit  of  equity  jurisdi<-tion,  and  file  a  bill 
therein  against  A,  and  obtain  a  decree  granting  the  desired  equit- 
able relief,  and,  as  an  incident  thereto,  procure  an  injunction  re- 
straining A's  action  at  law, — in  all  such  cases,  the  necessity,  and 
even  the  propriety,  of  bringing  the  separate  equity  suit  and  enjoin- 
ing the  legal  action  are  completely  obviated,  since  B  can  set  up  all 
his  equity  by  way  of  defense  or  counterclaim,  recover  a  judgment 
for  the  affirmative  i-elief  which  he  seeks,  and  defeat  the  action 
brought  against  him  by  A,  in  that  very  action  itself.     It  would  not 


149  JUDICIAL   IXTEKPUETATIOX    OF    JL'ItlSDICTIOX.  §  87 

be  correct  to  say  tliat  the  equity  jurisdiction  has  been  abrogated 
in  this  class  of  rases,  since  the  defendant  B  might  possibly  follow 
the  former  method,  and  bring  a  separate  action  instead  of  setting 
up  his  equitable  rights  as-  a  defense  and  counterclaim :  but  this  cir- 
cuitous mode  of  proceeding  is  seldom  adopted,  and  will  ultimately, 
perhaps,  be  prohibited  by  the  courts,  so  that  this  direct  equity  juris- 
diction will  doubtless,  in  time,  become  obsolete. 

§  87.  One  other  equally  important  change  produced  by  the  re- 
formed procedure  should  be  mentioned.  Under  the  system  of 
separate  jurisdiction,  when  a  person  possesses  an  equitable  right  or 
estate  entitling  him  to  some  particular  equitable  remedy  which, 
Avhen  obtained,  Avould,  in  turn,  confer  upon  him  a  legal  right  or 
estate  in  respect  to  the  subject-matter,  and  enable  him  therewith 
to  maintain  an  action  at  law,  he  is  obliged  (except  in  a  few  special 
eases)  first  to  bi'ing  a  suit  in  equity  and  procure  a  decree  establish- 
ing his  right  and  granting  him  the  needed  equitable  remedy,  which 
clothes  him  with  the  legal  title  or  estate.  Having  thus  acciuired 
a  legal  basis  for  his  demand,  he  must  go  into  a  court  of  law  and 
enforce  his  newly  perfected  legal  demand  by  means  of  a  legal  ac- 
tion. As  familiar  illustrations,  if  a  person  holds  an  equitable  estate 
under  a  land  contract,  he  must  compel  a  specific  performance  in 
equity  before  he  can  recover  possession  of  the  land  at  law;  if  he 
holds'  the  equitable  estate  under  an  implied  trust,  he  must  in  general 
obtain  a  transfer  of  the  legal  title  from  the  trustee  before  he  can 
maintain  ejectment  for  the  possession;  if  the  instrument  under 
which  he  claims  is  infected  with  mistake,  and  his  full  rights  under 
it  depend  upon  a  correction  of  the  mistake,  he  must  obtain  the 
remedy  of  reformation  or  re-execution  in  equity,  and  may  then  en- 
force his  perfected  legal  right  by  the  proper  action  at  law;  if  his 
estate  in  land  is  purely  an  equitable  one  because  a  deed  voidable 
through  fraud  has  conveyed  the  legal  title  to  another  person,  the 
equitable  remedy  of  cancellation  or  rescission  must  be  granted  be- 
fore a  legal  action  for  the  possession  can  be  successfuL  Wherever 
the  reformed  procedure  has  been  administered  according  to  its  plain 
intent,  the  necessity  of  this  double  judicial  proceeding  has  been 
obviated;  indeed,  if  the  true  spirit  of  the  new  procedure  is  accepted 
by  the  courts,  such  a  separation  of  equitable  and  legal  rights  and 
remedies,  and  their  prosecution  in  distinct  actions,  will  not  perhaps 
be  allowed.  The  plaintifif,  brings  one  civil  action  in  Avhich  he  alleges 
all  the  facts  showing  himself  entitled  to  both  the  eciuitable  and  the 
legal  reliefs  needed  to  complete  his  legal  right,  and  asks  and  ob- 
tains a  double  judgment,  granting,  first,  the  proper  equitable  rem- 
edy, and  secondly,  the  legal  remedy,  by  which  his  juridical  posi- 
tion with  resi^ect  to  the  subject-matter  is  finally  perfected;  or  he 


§  3.")8  EQUITY     jrKl!51'];L DEXCE.  150 

may  simply  demand  and  recover  a  .jiidi^iiient  conferring  only  the 
final  lei-al  remedy,  the  preliminai'y  e(}uital)le  relict'  being  assumed 
as  an  essential  prereciuisite  to  the  recovery,  but  not  being  in  terms 
awarded  by  the  court.  It  follows,  as  an  incident  of  this  union  of 
rights  and  remedies  in  one  action,  that  all  occasion  for  the  ancillary 
or  provisional  equitable  remedy  of  injunction  to  restrain  the  de- 
fendant from  proceeding  at  law  is  often,  and  indeed  generally, 
avoided  in  this  class  of  cases. 

§  358.  On  the  Inadequacy  of  Legal  Remedies. — Finally,  if  the 
true  s{)irit  and  intent  of  the  reformed  i)i'oc(Hlure  were  full}'  carried 
out  by  the  courts,  I  think  that  in  all  the  states  M'here  it  prevails  the 
question  whether  or  not  an  adequate  remedy  can  be  olitained  at  law 
M'ould  cease  to  have  the  slightest  importance  in  the  actual  decision 
of  causes.  One  of  the  plainest  purposes  of  the  new  system  is.  that 
if  a  cause  of  action  is  stated  in  the  pleading,  the  relief  to  which  the 
plaintiff  is  entitled  should  be  granted,  Avhether  that  relief  be  legal 
or  equitable.  A  .suit  should  never  be  dismissed  on  the  ground  that 
a  court  of  equity  has  no  jurisdiction  of  the  matter  because  the 
plaintiff*  has  an  adequate  remedy  at  law;  it  should  be  retained  and 
decided  as  an  action  at  law.  and  the  adequate  legal  relief  should  be 
awarded.  Tlie  correctness  of  this  theory  is  generally  admitted, 
but  the  courts  too  often  fail  to  carry  the  theory  into  practice. 


PART  SECOND. 

THE  MAXIMS  AND  GENERAL  PRINCIPLES  OF  EQUITY 
JURISPRUDENCE,  AND  THE  EVENTS  WHICH  ARE  OC- 
CASIONS OP  EQUITABLE  PRIMARY  OR  REMEDIAL 
RIGHTS. 


PRELIMINARY    SECTION. 

ANALYSIS. 

§  359.  Objects,    questions,    tfiul    divisions    stated. 
§  360.  Equitable    principleft    described. 
§   361.  Equital)le    doctrines    described. 
§   362.  Occasions   of   equitable    rights. 

§  359.  Questions  and  Divisions  Stated. — Thus,  far  the  discussion 
has  been  confined  to  the  equit.y  jurisdiction,  or  the  power  of  courts 
to  entertain  and  determine  controversies  involving  equitable  estates, 
interests,  and  rights,  or  to  award  remedies,  in  pursuance  of  the 
doctrines,  methods,  and  procedure  of  equity.  I  now  proceed  to  tlie 
examination  of  the  doctrines  and  rules  which  make  up  the  equity 
jurispriidence.  In  the  introductory  chapter  it  was  shown  that 
equity  jurisprudence,  considered  as  a  department  of  the  municipal 
law,  as  a  collection  of  practical  rules  administered  by  the  courts, 
is  separated  by  a  natural  line  of  division  into  two  parts,  namely, 
equitable  estates,  interests,  and  primary  rights,  which  are  all 
either  equitable  rights  of  property  or  rights  analogous  to  property, 
and  equitable  remedies  and  remedial  rights'.  There  are,  however, 
certain  elements  underlying  and  running  through  the  entire  body  of 
equity  jurisprudence,  which  must  be  explained  and  described  in  all 
their  fulness  and  force,  before  either  of  these  two  great  divisions 
can  be  dealt  Avith  in  a  complete  and  accurate  manner.  As  clearly 
appears  in  our  preliminary  historical  sketch,  the  doctrines  and  rules 
of  equity  jurisprudence  are  not  arbitrary;  they  are,  to  a  very  great 
extent,  based  upon  and  derived  from  those  essential  truths  of  moral- 
ity, those  unchangeable  principles  of  right  and  obligation  which 
have  a  juridical  relation  with  and  application  to  the  events  and 
transactions  of  society.  These  ethical  truths  do  not,  however,  ap- 
pear in  equity  jurisprudence  in  their  purely  abstract  form.  As 
thev  must  be  applied  by  the  courts  to  juridical  relations  alone,  they 


§360  EQUITY   jrnjsi'UUDKXCK.  loi 

Isave  been  made  to  assume  a  concrete  and  juridical  character,  with- 
out losing-  at  the  same  time  any  of  their  inherent  ethical  nature, 
hi  fact,  these  juridical  precepts  of  i-ight  and  duty  are  the  broad 
foundations  upon  wliich  the  superstructure  of  equity  jurisprudence 
lias  been  constructed;  they  are  the  sources  from  which  most  of 
those  doctrines  and  rules  have  been  drawn  which  define  and  reg- 
ulate equitable  estates,  interests,  and  rights,  and  control  the  ad- 
ministration of  equitable  remedies.  A  careful  examination  and 
full  comprehension  of  these  sources— these  fundamental  principles 
— are  plainly  a  prerequisite  to  any  complete  and  accurate  hnowl- 
edge  and  understanding*  of  the  doctrines  and  rules  which  result 
from  them. 

§  360.  Equitable  Principles.— The  juridical  principles^  of  moral- 
ity wliich  thus  constitute  the  ultimate  sources  of  equitable  doc- 
trines and  rules  are  of  two  classes  or  grades.  Underlying  the  entire 
bod}'  of  equity  jurisprudence,  extending  through  every  one  of  its 
departments,  and  shaping  to  a  greater  or  less  extent  its  doctrines 
concerning  almost  every  important  subject,  are  certain  broad  coin- 
i)reheiisive  precepts  which  are  commonly  denominated  maxims  of 
ecjuity.  These  maxims  are  in  the  strictest  sense  the  principia,  the 
beginnings  out  of  which  has  been  developed  the  entire  system  of 
truth  known  as  equity  jurisprudence.  They  are  not  the  practical 
and  final  doctrines  or  rules  which  determine  the  equitable  rights 
and  duties  of  individual  persons,  and  which  are  constantly  cited  by 
the  courts  in  their  decisions  of  judicial  controversies.  They  are 
rather  the  fruitful  germs  from  which  these  doctrines  and  rules 
have  grown  by  a  process  of  natural  evolution.  They  do  not  ex- 
clusively belong  either  to  the  department  which  treats  of  equitable 
(^states,  property,  and  other  primary  rights,  nor  to  that  which  deals 
with  equitable  remedies;  their  creative  and  molding  influence  is 
found  alike  throughout  both  of  these  departments.  Among  the 
most  important  of  these  principia  which  have  been  crystallized  into 
the  pithy  form  of  maxims  are  the  following:  E(|uity  regards  that 
as  done  which  ought  to  have  been  done ;  equity  looks  at  the  intent, 
rather  than  the  form;  e(|uality  is  equity;  he  who  seeks  equity  must 
do  equity:  he  who  comes  into  equity  must  come  with  clean  hands. 
While  it  cannot  be  said  that  these  and  other  similar  principles  have 
all  produced  the  same  or  equal  effects  upon  the  development   oi 

*  It  is  important  to  obtain  an  accurate  notion  of  the  distinction  between 
"principles"  and  doctrines.  "All  principles  are  doctrines,  bnt  all  doctrines 
are  not  principles.  Those  properly  are  principles  which  contain  the  principia, 
the  beginnings  or  starting— points  of  evolution,  out  of  which  any  system  of 
trufli  is  developed:"  De  Quincey.  "Rules"  are  still  more  particular  in  their 
application   and   narrow   in    their   scope   than   doctrines. 


153  PRELIMINAUV    SECTION.  §  ^502 

equity  jurisprudence,  yet  it  is  undeniable  that  a  vast  proportion 
of  the  actual  doctrines  and  rules  which  make  up  the  system  of 
equity  are  necessary  inferences  from  or  direct  applications  of  some 
one  or  more  of  these  fundamental  maxims.  It  is  evident,  therefore, 
that  any  full  and  accurate  discussion  of  the  doctrines  and  rules 
which  constitute  the  two  main  divisions  of  equity  jurisprudence  as 
heretofore  described  must  be  preceded  by  an  examination  into  the 
nature,  meaning,  extent,  and  effects  of  these  few  germinal  prin- 
ciples. 

§  361.  Equitable  Doctrines. — In  addition  to  these  true  principia, 
these  principles  which  run  through  and  affect  all  parts  of  equity 
jurisprudence,  there  are  also  certain  other  comprehensive  doctrines 
which  are  purely  equitable,  and  largely  serve  to  distinguish  the 
system  from  the  "law."  The  doctrines  to  which  I  refer  are  neither 
equitable  estates,  nor  property,  nor  remedies,  nor  are  they  exclu- 
sively concerned  either  with  equitable  estates  and  other  similar 
rights,  or  with  equitable  remedies;  on  the  contrary,  they  affect  to  a 
greater  or  less  extent  both  the  equitable  rights  of  property  and  the 
administration  of  equitable  remedies.  It  seems  expedient,  there- 
fore, in  order  to  avoid  unnecessary  repetition, — even  if  this  arrange- 
ment is  not  essential  in  any  scientific  method, — that  the  investiga- 
tion of  these  peculiar  doctrines  should  precede  the  discussion  of 
equitable  estates,  interests,  and  other  primary  rights,  and  of  equit- 
nl)le  remedies.  The  following  are  illustrations  of  the  doctrines 
which  constitute  this  special  class:  The  equitable  doctrines  con- 
cerning penalties  and  forfeitures;  the  doctrine  concerning  priori- 
ties; the  doctrine  concerning  notice;  the  doctrine  of  election.  All 
of  these  are  very  comprehensive  in  their  nature  and  effects,  and  are 
the  immediate  sources  of  numerous  rules  in  all  branches  of  equity 
jurisprudence. 

§  362.  Occasions  of  Equitable  Rights. — Finally,  there  are  certain 
facts  or  events  which  are  the  occasions  of  numerous  equitable  rights, 
both  primary  and  remedial,  and  Avhich  thus  give  rise  to  important 
doctrines  and  rules  in  every  branch  of  equity  jurisprudence.  These 
facts  and  events  have  sometimes  been  described  as  forming  a  part 
of  the  concurrent  jurisdiction;  but  this  view,  as  has  already  been 
shown,  is  superficial  and  erroneous.  The  facts  and  events  which 
are  thus  peculiarly  the  occasions  of  equitable  rights  are  fraud,  mis- 
tnke,  and  accident.  Under  the  system  of  classification  Avhieh  I  have 
adopted,  these  subjects  do  not  exclusively  belong  either  to  the 
department  of  equitable  estates  and  other  primary  rights,  nor  to 
that  of  equitable  i*emedies.  Although  not  the  sources  of  rules,  like 
the  principles  and  doctrines  mentioned  in  the  foregoing  paragraphs, 
they  are  the  occasions  which  give  rise  to  a  large  number  of  rules, 


§  SGV  Et^UlTY     JLI'tlSrUUDKNCi:.  154 

and  their  examination  should,  in  any  proper  order,  precede  the  dis- 
cussion of  equitable  property  and  equitable  remedies.  This  se(;ond 
part  will  therefore  be  separated  into  three  chapters,  of  which  the 
tir.st  will  be  devoted  to  the  fundamental  maxims  of  equity,  the  sec- 
ond to  the  group  of  peculiarly  equitable  doctrines  above  described, 
and  the  third  to  the  special  facts  and  events  which  are  the  occa- 
sions of  many  equitable  rights  and  remedies. 


155  KEGAKDS   THAT    DOXE    WillCli   OUGHT   TO    BE    DONK.  55  3(i3 


CHAPTER  I. 
THE  FUNDAMENTAL  PRINCIPLES  OR  MAXIMS  OF  EQUITY. 


SECTION  L 

EQUITY    REGARDS    THAT    AS    J)(>XK     WHICH    OUGHT    TO    BE    DONE. 

ANALYSIS. 

§  363.  List    of    equitable    iiiaxiins. 

§  364.  Equity    regards   as   done   what    ought   to   be   done;     its    importance. 

S§  305-377.  Its  true  meaning,  and  its  effects  upon  equitable  doctrines. 

§§  366-369.  Is  the  source  of  equitable   jiroperty   and  estates. 

§  366.  Sources    of    legal    property     or   titles    described. 

§   367.  Effect    of   an    executory   contract   at   law. 

§  368.  Effect   of  an  executor}'  contract   in   equity. 

§   369.  Sources   of   all   kinds   of   equitable  property   described. 

§§   370-376.  The  equitable  estates  winch  are  derived  from  this  principle. 

§  371.  Conversion. 

§  372.  Contracts  for  the  purcha.se  and  sale  of  lands. 

§  373.  Assignments  of  po.ssibilities;  sale  of  chattels  to  be  acquired  in 
the  future;  assignments  of  things  in  action;  equitable  assign- 
ments   of   moneys;     and   equitable   liens. 

§   374.  Express  trusts. 

§  375.  Trusts  arising  by  operation  of  law. 

§   376.  Mortgage;   equity  of  redemption. 

§   377.  Conclusions. 

§  363.  List  of  Maxims. — These  principles'  which  are  so  funda- 
mental and  essential  that  they  may  with,  propriety  be  termed  the 
maxims  of  equity  are  the  following-:  Equity  regards  that  as  done 
which  ought  to  be  done;  equity  looks  to  the  intent,  rather  than  to 
the  form;  he  who  seeks  equity  must  do  equity;  he  who  comes  into 
equity  must  come  with  clean  hands;  equality  is  equity;  where  there 
are  equal  equities,  the  first  in  time  shall  prevail ;  where  there  is 
equal  equity,  the  law  must  prevail ;  equity  aids  the  vigilant,  not 
those  who  slumber  on  their  rights,  or  Vigilantibus  non  dormientibus, 
iiequitas  subvenit ;  equity  imputes  an  intention  to  fufill  an  obliga- 
tion:  equity  will  not  suffer  a  wrong  without  a  remedy;  and  equity 
follows  the  law.  It  must  not  be  supposed  that  all  these  maxims  are 
equally  important,  or  that  all  have  been  equally  fruitful  in  the 
development  of  doctrines  and  rules;  but  it  is  not  an  exaggeration 
to  say  that  he  who  has  grasped  them  all  with  a  clear  comprehen- 


§  364  EQUITY     JLIilSl'KUDEXCE.  156 

siun  of  their  full  meaning"  and  effects  has  already  obtained  an  in- 
sight into  whatever  is  essential  and  distinctive  in  tlie  system  of 
equity  jurisprudence,  and  has  found  the  explanation  of  its  peculiar 
doctrines  and  rules.  I  purpose,  in  the  successive  sections  of  this 
chapter,  to  discuss  them  in  the  order  given  above. 

§  364.  First  Maxim :  Its  Importance  and  General  Operation. — 
The  tirst  maxim  in  the  list  has  been  stated  in  somewjiat;  yarying^ 
language  by  different  text-writers,  but  without  anj'  substantial 
variation  in  the  meaning.  I  think  the  following  form  is  both  strict- 
ly accurate  and  sufficiently  comprehensive  in  expressing  the  equit- 
able principle :  Equity  regards  and  treats  that  a.s  done  which  in 
good  conscience  ought  to  be  done.  Some  Avriters  have  failed  ta 
apprehend  the  full  significance  of  this  maxim,  and  have  described 
its  effects  in  altogether  a  too  narrow  and  partial  manner.^  Others 
have  correctly  looked  upon  it  as  the  very  foundation  of  all  dis- 
tinctively equitable  property  rights,  of  all  equitable  estates  and 
interests,  both  real  and  personal.-  It  is  in  fact  the  source  of  a  large 
part  of  that  division  of  equity  jurisprudence  which  is  concerned 
with  equitable  propert}^;  the  doctrines  and  rules  which  create  and 
define  equitable  estates  or  interests  are  in  great  measure  derived 
from  its  operation.  So  far  from  the  maxim  being  confined  to  ex- 
press executory  contracts,  and  to  those  dispositions  of  property 
which  give  rise  to  an  e(iuitable  conversion,  it  has  been  applied  by 
the  most  eminent  courts  to  all  classes  r,f  equities;  to  every  instance 
where  an  equitable  onijJit  with  respect  to  the  subject-matter  rests 
upon  one  person  towards  anqther;  to  every  kind  of  case  where  an 
affirmative  equitable  duty  to  do  some  positive  act  devolves  upon 
one  party,  and  a  corres|)onding  equitable  right  is  held  by  another 
party.^     Whenever  courts  of  high   authorit}^  have   dealt   with   the 

'Thus  Mr.  Justice  Story  (I  Eq.  Jur.,  §  64  g),  and  Mr.  Snell  (Snell's  Equity, 
37)  following  him,  say:  "The  true  meaning  of  this  maxim  is,  that  equity  will 
treat  the  subject-matter  of  a  contract,  as  to  collateral  consequences  and  inci- 
dents, in  the  same  manner  as  if  the  final  acts  contemplated  by  the  parties  had 
been  executed  exactly  as  they  ought  to  have  been,  not  as  they  might  have  been, 
executed.  .  .  .  1'he  most  frequent  cases  of  the  application  of  the  rule  are 
under  agreements."  This  description  is  merely  the  substituting  one  practical 
result   of   the  principle  in   the   place  of  the   principle   itself. 

-Adaius  Equity,  135  (6th  Am,  ed.,  p.  295).  See  2  Spence's  Eq.  Jur.  2.'j3  «=t 
seq. 

^Frederick  v.  Frederick,  1  P.  Wms.  710,  1  Scott  311.  A  person  had  contrac- 
ted to  become  a  citizen  of  London,  but  died  before  he  had  carried  this  agreement 
info  effect  by  taking  up  his  freedom.  His  widow  thereupon  brought  a  suit  to 
])rocure  his  personal  estate  to  be  distributed  in  accordance  with  the  customs 
of  London,  which  ap])lied  to  citizens  only,  and  which  prescribed  a  very  diff- 
erent mode  of  distribution  from  that  wliich  prevailed  under  the  statue  in  other 
parts    of    England.      The    court,    invoking    the    maxim,    held    that    the    deceased 


157  REGAh'DS    THAT    DOXK    WlIlCll    OUGHT    TO    BE    DONE.  §  3G5 

principle  in  a  narrower  manner,  and  have  given  to  it  a  more  re- 
stricted operation  and  effect,  their  language,  although  perhaps  very- 
general  in  its'  terms,  should  be  taken  as  confined,  and  as  intended 
by  the  court  to  be  confined,  to  the  particular  application  of  the 
maxim  then  under  judicial  investigation.* 

§  365.  Its  Meaning  and  Effects.— What  is  the  true  meaning  of 
the  principle,  taken  in  its  most  comprehensive  and  generic  sense? 
and  what  are  its  true  effects  upon  the  system  of  distinctive  doc- 
trines and  rules  which  constitute  the  equity  jurisprudence"?  In  the 
first  place,  it  should  be  observed  that  the  principle  involves  the 
notion  of  an  equitable  ohligation  existing  from  some  cause;  of  a 
present  relation  of  equitable  right  and  duty  subsisting  between  two 
parties, — a  right  held  by  one  party,  from  whatever  cause  arising, 

should  be  regarded  as  though  he  were  actually  a  citizen  at  the  time  of  his  death, 
and  that  his  estate  should  be  distributed  in  pursuance  of  the  custon.  This  de- 
cision clearly  exhibits  tiie  universality  of  the  maxim.  Coventry  v.  Barclay  3 
DeGex,  J.  &  S.  320,  328,  per  Lord  Chancellor  Westbury.  Jn  this  case  the  ques- 
tion in  dispute  was,  wheflier  a  partner — Bevan — was  bound  by  certain  accounts 
settled  with  his  co— partners,  or  whether  he  could  disregard  them,  and  have 
a  general  accounting  gone  into.  By  the  partnership  articles  it  was  stipulated 
that  on  a  certain  day  of  each  year  the  accounts  of  the  whole  past  year  should  be 
made  up,  presented  to  all  the  partners,  settled,  and  signed  by  each.  At  the 
appointed  day  in  one  year  the  accounts  were  thus  made  up,  and  laid  before  all 
tlie  firm,  except  Bevan,  settled  and  signed  by  them.  Bevan  was  not  jDresent, 
on  account  of  illness,  and  never  signed  these  accounts,  but  afterwards  saw  them, 
and  verbally  assented  or  agreed  to  their  correctness.  The  same  took  place  on 
another  year.  On  these  facts  Lord  Westbury  said  (p.  228)  :  "It  is  the  rule  of 
a  court  of  equity  to  consider  that  as  done  which  ought  to  be  done;  and  if, 
tiierefore,  I  find  that  the  accovuits  and  valuation  of  July.  I860,  at  the  making 
of  which  Mr.  Bevan  was  not  present,  were  afterwards  accepted  and  agreed  to 
by  him,  I  shall  hold  that  the  account  was  in  equity  signed  by  him  at  the  time 
A\  hen  it  was  so  accepted."  Here,  it  will  be  seen,  this  most  able  judge  applied  the 
maxim,  not  to  the  title  and  pro]ierty  in  land  or  chattels,  but  to  a  purely  per- 
sonal act,  and  held  that  equity  would  regard  sucli  a  personal  act  as  done,  al- 
though in  fact  it  never  was  done,  because  it  ought  to  be  done.  The  case  is  in 
exact  harmony  with  Frederick  v.  Frederick,  1  P.  Wms.  710.  In  Sourwine 
v.  Supreme  Lodge,  12  Ind.  App.  447,  452,  453,  54  Am.  St.  Rep.  532,  530, 
40  M.  E.  646,  I  Scott  320,  a  member  of  a  beneficial  association  in  good  stand- 
ing and  entitled  imder  its  constitution  and  bylaws  to  be  transferred  from 
one  endowment  class  to  another,  requested  to  be  so  transferred,  and  did  all 
that  could  be  required  of  him  to  enter  such  class,  biit  his  request  was  wrongfully 
and  arbitrarily  refused.  After  his  death,  the  court,  recognizing  the  flexi- 
bility of  equitable  remedies,  and  quoting  the  above  passage  of  the  text,  granted 
relief  as  though  tlie  transfer  had  been  effected.  See,  also,  Ames  v.  Richardson, 
20  IMinn.  330.  13  X.  W.  137.  Sh.  64. 

*  This  is  the  universal  rule  for  the  interpretation  of  judicial  dicta,  and  it 
is  the  only  mode  of  avoiding  irreconcilable  conflict  of  opinion.  The  narrow  and 
restricted  effect  given  to  the  maxim  is  most  frequently  foimd  in  decisions 
concerning  equitable  cnvvprFswn:  and  it  has  no  other  hvijitiniate  meaning  than 
that  of  defining  the  limits  within  which  the  principle  can  operate  in  such  cases. 


5^  ;jU«j  equity     JURlr?l"l!CDi:XCK.  158 

that  the  other  sJiould  do  some  act,  and  the  eorrespondinu'  duty,  the 
ought  resting  upon  the  latter  to  do  such  act.  Equit}-  does  not  I'e- 
g'ard  and  treat  as  done  what  might  be  done,  or  what  could  be  done, 
but  only  what  ougJit  to  be  done.  Nor  does  the  principle  operate  in 
favor  of  every  person,  no  matter  what  nuiy  be  his  situation  and  re- 
lations, but  only  in  favor  of  him  Avho  holds  the  equitable  right  to 
have  the  act  performed,  as  against  the  one  upon  whom  the  duty  of 
such  performance  has  devolved.^  Wherever  between  two  parties, 
A  and  B,  an  "equity"  exists  with  respect  to  a  subject-matter  held 
by  one  of  them,  B,  in  favor  of  the  other.  A,  then  as  between  these 
t^^o  a  court  of  equity  regards  and  treats  the  subject-matter  and 
the  real  beneficial  rights  and  intei'ests  of  A  as  though  the  "equity'* 
had  actual]}^  been  worked  out,  and  as  impressed  with  the  character 
and  having  the  nature  which  they  then  would  have  borne.  V7hen 
in  this  proposition  it  is  said  that  an  "equity"  exists  between  the 
two  ])arties,  the  meaning  is,  that  some  equitable  obligation  to  do 
^■(>me  positive  act  with  respect  to  the  subject-matter,  arising  from 
a  cause  recognized  by  the  rules  of  equity  jurisprudence,  rests  upon 
B,  and  a  corresponding  equitable  right  to  have  the  act  done  by  B 
with  respects  to  the  same  subject-matter  springing  from  the  same 
efficient  cause,  is  held  by  A.  This  active  relation  subsisting  be- 
tween the  two  parties,  a  court  of  efpiity,  partly  acting  upon  its 
fundamental  principle  of  going  beneath  the  mere  external  form 
and  appearance  of  things  and  dealing  with  the  real  fact,  the  real 
beneficial  truth,  and  partly  for  the  purpose  of  making  its  remedies 
more  complete,  treats  the  resulting  rights  of  A  as  though  the  obli- 
gation of  B  had  already  been  performed;  regards  A.  in  fact,  as 
clothed  with  the  same  ultimate  interests  in  the  subject-matter  which 
he  would  receive  and  hold  if  B  had  actually  fulfilled  his  obligation 
by  doing  the  act  which  he  ought  to  do.  Of  course  this  interest  thus 
j)osse.ssed  by  A  is  and  must  be  a  purely  equitable  one.  recognized 
by  courts  of  equity  alone,  since  no  legal  interest  in  the  subject- 
matter  could  become  vested  in  A  except  by  the  complete  perform- 
ance of  his.  obligation  on  the  part  of  B. — his  really  doing  the  act 
which  his  duty  bound  him  to  do. 

§  366.  Is  the  Source  of  Equitable  Property — Sources  of  Legal 
Property  or  Titles.— All  kinds  of  equitable  property,  as  distin- 
guished from  legal  ownership,  are.  Avith  perhaps  one  or  two  parti- 
cular exceptions,  derived  from  this  fruitful  and  most  just  principle. 
Its  full  operation  can  best  be  understood  and  appreciated  from  a 
brief  comparison   of  the   modes   in   which   absolute   property — that 

'  Btn-soss  V.  Wheate,  1  \V.  Hlaok.  12:^  129.  ]  Eden  177.  1  Scott  316;  Daggett 
V.   Rankin.   .31    Cal.    .321.    .12(i.    per   rurrcv.   / 


159  KEC.AKDS    THAT    DOXi:    WUICJI    OlGllT    TO    HE    DONE.  §  oHi) 

is,  the  perfect  right  of  ownership,  doniiuium — arises  or  is  acquired 
at  law,  with  the  modes  in  which  the  analogous  right  of  property 
arises  according  to  the  doctrines  of  equity.  In  the  earliest  and 
rudest  periods  of  the  common  law  absolute  property  could  only  be 
acquired  inter  vivos  by  the  accurate  observance  of  certain  arbitrary, 
external  forms,  or  symbolic  acts  and  gestures.^  Although  Avith  an 
advancing  civilization  these  external  and  symbolic  acts  have  dis- 
ni)peared,  still,  down  to  the  present  time  the  only  absolute  property 
or  right  of  ownership  which  the  law  recognizes,  and  Avhich  courts 
oi  law  protect  by  their  legal  actions  and  remedies,  whether  in  land 
or  in  things  personal,  nuist  arise  and  be  acquired  in  certain  fixed, 
determinate  methods,  wdiich  alone  constitute  the  "titles"  known  to 
the  laAV, — using  that  word  in  its  strict  and  true  sense  as  means  of 
acquiruKj  property.  Without  following  some  one  of  these  certain 
modes,  no  legal  property  can  be  obtained  or  transferred  as  between 
persons  in  their  private  capacitie.s.-  The  most  important  of  these 
connnon-laAV  methods  Avhich  must  be  pursued  in  order  that  a  legal 
property  may  be  acquired  in  land  are :  A  conveyance  under  seal 
whereby  the  seisin  was  transferred;  a  will;  inheritance;  marriage 
whereby  a  freehold  estate  for  life  might  be  vested  in  one  of  the 
spouses;  actual  disseisin  with  an  adverse  possession  during  the 
period  prescribed  by  the  statute  of  limitations;  and  under  very 
special  circumstances,  accession.^  The  important  modes  of  acquir- 
ing a  legal  property  in  things  personal  are :  A  true  present  sale 
or  bailment  where  the  chattel  is  in  existence  and  capable  of  im-. 
mediate  manual  transfer;  a  will;  a  succession  in  case  of  intestacy 
as  regulated  by  the  statute  of  distributions;  marriage;  adverse  pos- 
session aided  by  the  statute  of  limitations;  occupancy;  and  the  vari- 
ous acts  which  are  included  under  the  generic  term  "accession."* 

'This  is  true  of  every  system  of  national  law  in  its  earliest,  senii-bar- 
l)aroiis,  and  purely  cu(?tomary  stage.  The  'iivery  of  seisin"  of  the  Saxon  and 
ancient  common-law  was  identical  in  principle  witli  tlie  "mancipation"  by  whitli 
complete  dominion  could  alone  bo  transferred  in  the  primitive  Roman  law, — 
the    early    jus    civile. 

-  As  I  am  speakinir  only  of  private  relations.  I  purposely  omit  all  mention  of 
the  public  modes  in  which  property  might  be  acquired  by  the  state, — escheat, 
forfeiture,  eminent  domain,  and  tlie  like, — and  also  those  somi-]mblic  methods 
allowed  by  statutes  in  which  property  is  vested  in  certain  oflicial  persons,  such 
as  assignees  in  bankruptcy  or  insolvency,  and  the  like. 

'The  case  of  "alluvion"  where  the  proprietor's  land  c/roirs.  as  it  were. 

*  In  all  the  instances  where  property  is  divested  and  transferred  through  the 
agency  of  some  administrative  oflicer. — e.  g..  a  sheriff  acting  in  pursuance  of 
a  judicial  authority, — the  final  means  of  transfer  and  of  acquisition  is  a  sale 
in  case  of  chattels,  and  a  conveyance  in  case  of  land.  The  only  real  distinction 
between  these  cases  and  those  of  ordinary  sales  and  conveyances  lies  in  the 
pcr'^oii    \\l\o  as   vendor  or  grantor   makes   the  transfer.    ■ 


§  367  EQUITY    JURISPRUDENCE.  160 

Unless  a  person  has  obtained  the  legal  property  in  a  specific  tract 
of  land  through  some  one  of  the  foregoing  modes,  he  cannot  as 
demandant  maintain  a  real  action  to  recover  such  land,  or  as  lessor 
of  the  plaintiff  under  the  ancient  practice,  or  as  plaintiff  under  the 
modern,  maintain  an  action  of  ejectment  for  the  same  purpose.  A 
legal  estate  acquired  by  some  legal  title  is  indispensable.  Upon  the 
same  principle,  unless  a  person  has  a  legal  property  in  a  specific 
chattel,  obtained  through*  some  mode  recognized  by  the  law,  he  can. 
not  as  plaintiff*  maintain  any  of  the  proprietary  actions  at  law  for 
the  purpose  of  recovering  the  article  itself,  or  its  value  in  money, 
or  damages  for  an  invasion  of  his  ownership,  replevin  or  detinue, 
trespass  or  trover.  While  he  may  have  legal  rifjhts  with  respect  to 
the  thing,  Avhich  courts  of  law  will  protect,  and  for  the  violation 
of  Avhich  he  may  be  entitled  to  appropriate  legal  remedies,  his  legal 
right  of  property  can  only  arise  and  exist  upon  the  occasion  of  cer- 
tain, determinate  acts  or  events. 

§  367.  Effect  of  an  Executory  Contract  at  Law. — What  is  the 
effect  at  law  of  a  contract  whereby  the  owner  agrees  to  sell  and 
convey  a  designated  tract  of  land,  but  which  is  not  a  true  convey- 
ance operating  as  a  present  transfer  of  the  legal  estate  and  the 
legal  seisin?  It  is  wholly,  in  every  particular,  executory,  and  pro- 
duces no  effect  upon  the  respective  estates  and  titles  of  the  parties, 
and  creates  no  interest  in  nor  lien  or  charge  upon  the  land  itself. 
The  vendor  remains,  to  all  intents,  the  owner  of  the  land;  he  can 
convey  it  to  a  third  person  free  from  any  legal  claim  or  encum- 
brance; he  can  devise  it  in  the  same  manner;  on  his  death  inte- 
state, it  descends  to  his  heirs.  The  contract  in  no  manner  inter- 
feres with  his  legal  right  to  and  estate  in  the  land,  and  he  is  simply 
subject  to  the  legal  duty  of  performing  the  contract,  or  to  the  legal 
liability  of  paying  such  damages  for  its  non-performance  as  a  jury 
may  award,  which  are  collectible  from  his  property  generally.  On 
the  other  hand,  the  vendee  acquires  no  interest  nor  property  right 
whatever;  he  can  maintain  no  proprietary  nor  possessory  action 
for  its  recovery;  his  right  is  a  mere  thing  in  action  to  recover  com- 
pensation in  damages  for  a  breach  from  the  vendor,  and  his  duty 
is  a  debt,— an  obligation  to  pay  the  stipulated  price ;  on  his  death 
both  this  right  and  this  duty  pass  to  his  personal  representatives, 
and  not  to  his  heirs.  In  short,  the  vendee  obtains  at  law  no  real 
property  nor  interest  in  real  property.  The  relations  between  the 
two  contracting  parties  are  wholly  personal.  No  change  is  made 
until,  by  the  execution  and  delivery  of  a  deed  of  conveyance,  the 
estate  in  the  land  passes  to  the  vendee.  It  is  unnecessary  to  describe 
the  similar  legal  effects  produced  by  agreements  to  sell   chattels, 


161  IJEGAHDS   THAT   DOXK    WHICH    OUGHT   TO    BE   DONE.  §  368 

sales  of  articles  to  be  acquired  by  the  vendor  in  the  i'uture,  and  all 
other  contracts  which  are  executory  in  their  nature. 

§368.  Effect  of  an  Executory  Contract  in  Equity. — The  full 
sigrnificanee  of  the  principle  that  equity  regards  and  treats  as  done 
what  ought  to  be  done  throughout  the  whole  scope  of  its  effects 
upon  equity  jurisprudence  is  disclosed  in  the  clearest  light  by  the 
manner  in  which  equity  deals  with  executory  contracts  for  the 
sale  of  land  or  chattels,  which  presents  such  a  striking  and  com- 
plete contrast  with  the  legal  method  above  described.  While  the 
legal  relations  between  the  two  contracting  parties  are  wholly  per- 
sonal,— things  in  action, — equity  views  all  these  relations  from  a 
very  different  stand-point.  In  some  respects,  and  for  some  pur- 
poses, the  contract  is  executory  in  equity  as  well  as  at  law;  but  so 
far  as  the  interest  or  estate  in  the  land  of  the  two  parties  is  con- 
cerned, it  is  regarded  as  executed,  and  as  operating  to  ti-ansfer  the 
estate  from  the  vendor  and  to  vest  it  in  the  vendee.  By  the  terms 
of  the  contract  the  land  ought  to  be  conveyed  to  the  vendee,  and 
the  purchase  price  ought  to  be  transferred  to  the  vendor;  equity 
therefore  regards  these  as  done :  the  vendee  as  having  acquired  the 
property  in  the  land,  and  the  vendor  as  having  acquired  the  prop- 
erty in  the  price.  The  vendee  is  looked  upon  and  treated  as  the 
oivner  of  the  land:  an  equitable  estate  has  vested  in  him  commensur- 
ate with  that  provided  for-  by  the  contract,  whether  in  fee,  for  life, 
or  for  years;  although  the  vendor  remains  owner  of  the  legal  estate, 
he  holds  it  as  a  trustee  for  the  vendee,  to  whom  all  the  beneficial 
interest  has  passed,  having  a  lien  on  the  land,  even  if  in  possession 
of  the  vendee,  as  security  for  any  unpaid  portion  of  the  purchase- 
money.^  The  consec{uences  of  this  doctrine  are  all  followed  out. 
As  the  vendee  has  acquired  the  full  equitable  estate, — although  still 
wanting  the  confirmation  of  the  legal  title  for  purposes  of  security 

'  Farrar  v.  Winterton,  5  Beav.  1,  8:  Haughwout  v.  Murphy,  22  X.  J.  Eq. 
531,  Sh.  19S.  It  is  a  great  mistake,  opposed  to  the  fundamental  notions  of 
equity,  to  suppose  that  the  equity  maxim  does  not  operate,  and  the  vendee  does 
not  become  equitable  owner  until  and  as  far  as  he  has  actually  paid  the  stipu- 
lated price.  This  erroneous  view  has  sometimes  been  suggested,  and  sometimes 
even  held,  in  a  few  American  decisions;  but  it  shows  a  misconception  of  the 
whole  equitable  theory.  In  truth,  the  vendee  becomes  equitable  owner  of  the 
land,  and  the  vendor  equitable  owner  of  the  purchase-money,  at  once,  upon  the 
execution  and  delivery  of  tlie  contract,  even  before  any  portion  of  the  price 
is  paid.  It  is  true  that  tlie  vendee's  equitable  estate  is  encumbered  or  charged 
with  a  lien  as  security  for  tlie  iinpaid  price,  and  he,  therefore,  may,  by  the  en- 
forcement of  this  lien  upon  his  final  default  in  making  payment,  lose  his 
whole  estate,  in  the  same  manner  as  a  mortgagor  may  lose  his  interest  by 
a  foreclosure.  But  this  lien  of  the  vendor  is  not  inconsistent  witli  the  vendee's 
equitable  estate,  any  more  tiian  the  equitable  lien  of  an  ordinary  mortgage  is 

inconsistent  with  the  mortgagor's  legal  estate. 
11 


§  368  EC^UITY    JUKl.Sl'KUDKXCK.  162 

ayainst  third  persons, — he  may  convey  or  encumber  it ;  may  devise 
it  by  will ;-  on  his  death  intestate,  it  descends  to  his  heirs,  and  not 
to  his  administrators;''  in  this  country,  his  wife  is  entitled  to  dower 
in  it;*  a  specific  performance  is,  after  his  death,  enforced  bj^  his 
heirs;  in  short,  all  the  incidents  of  a  real  ownership  belong  to  it. 
As  the  vendor's  legal  estate  is  held  by  him  on  a  naked  trust  for  the 
vendee,  this  trust,  impressed  upon  the  land,  follows  it  in  the  hands 
of  other  persons  who  may  succeed  to  his  legal  title, — his  heirs  and 
his  grantees,  who  take  with  notice  of  the  vendee's  equitable  right. 
Tn  other  words,  the  vendee's  eiinitable  estate  avails  against 
the  vendor's  heirs,  devisees,  and  other  voluntary  assignees, 
and  his  grantees  with  notice ;  it  is  only  when  the  vendor 
has  conveyed  the  land  to  a  third  person  who  is  a  bona, 
fide  purchaser  for  value  without  notice  that  other  equit- 
able principles  come  into  play,  and  cut  off  the  vendee's  equitable 
Cbtate.^  It  follows  also,  as  a  necessary  consequence,  that  the  vendee 
is  entitled  to  any  improvement  or  increment  in  the  value  of  the  land 
after  the  conclusion  of  the  contract,  and  nnist  himself  bear  any 
and  all  accidental  injuries,  losses,  or  wrongs  done  to  the  soil  by  the 
operations  of  nature,  or  by  tortious  third  persons  uot  acting  under 
the  vendor.**     The  equitable  interest  of  the  vendor  is   correlative 

-  Daire  v.  Beversliam,  Nelson  76,  1  Ch.  Ca.  ^9,  1  Ames  Cas.  Eq.  Jur.  192; 
Buck  V.  Buck,   11   Paige  170,  2  Keener  337. 

■'Milner  v.  .Mills,  ]\Ios.  123,  1  Ames  Cas.  Eq.  Jur.  191;  Langford  v.  Pitt,  2  P, 
Wms.  629,  2  Scott  405,  2  Keener  333;  Townsend  v.  Champernowne.  9  Price  130, 
2  Scott  410,  2  Keener  335;  House  v.  Dexter,  9  Mich.  246,  2  Scott  414  (lieir 
of  vendee's  assignee).  Therefore,  the  vendee's  heir  or  devisee  may  compel  his 
executor  or  administrator  to  pay  the  unpaid  purchase  money  out  of  the  vendee's 
])ersonalty;  ^lilner  v.  51ills,  supra.  If  the  contract  was  valid  and  enforceable 
at  the  vendee's  death,  but  was  afterwanls  rescinded,  equity  will  not  suffer  the 
heir  to  be  disappointed,  but  will  compel  the  administrator  to  pay  him  an  amount 
from  the  personalty  equivalent  to  the  price  of  the  land:  Matthews  v.  Gadd, 
.")  South  Austr.  L.  R.  129,  1  Ames  Cas.  Eq.  Jur.  193;  Lysaght  v.  Edwards.  2 
(h.  D.  499,  521,  2  Keener  360;  but  if  the  contract  was  not  valid  and  enforce— 
:il)Ie  at  the  vendee's  death  there  being  then  no  conversion,  the  heir  has  no  claim 
1o  the  purchase  money;  Green  v.  Smith,  1  Atk.  572,  1  Ames  Cas.  Eq.  Jur.  193. 
1    Scott   313. 

'Thompson  v,  Thompson,  1  Jones  (X.  C.)  430.  1  Ames  Cas.  Eq.  Jur.  201 
Miolding  that  the  interest  of  the  vendee  is  an  equitable  "estate."  not  a  mere 
(■quitable  "right")  :  Bailey  v.  Duncan,  4  :Monr.  Hxy.)  256,  2  Keener  343,  2 
Scott  417. 

^  In  that  case  the  vendor  is  accountable  as  a  trustee  to  the  vendee  for  the  price 
received  by  him  for  the  land;  Taylor  v.  Kelly.  3  Jones  Eq.  (N.  C.)  240,  1 
Ames  Eq.  Jur.  215;  Haughwout  v.  INTnrphy.  22  X.  J.  Eq.  531,  Sh,  198.  See, 
also.  White  v.   Patterson,   139  Pa.   St.   420.  21    All.   360. 

"Loss  by  earthquake:  (\ass  v.  Puddle.  2  Vcni.  2S0.  2  Scott  48S.  Loss  by 
fire:  Paine  v.  Aleller,  6  Ves.  349.  1  Ames  luj.  .Tur.  227.  2  Scott  450,  2  Keener 
403:   Marks  v.  Tichenor.  So  Kv.  536.  4  S.  XA".  22.").  2  Keener  430,  H.  &  B.  662; 


1G3  KEGAIJUS    THAT    DOXK    WHICH    OUGHT    TO    BE    DON"  E.  ^  3GS 

with  that  of  the  vendee;  his  beneficial  interest  in  the  laud  is  gone, 
and  only  the  naked  legal  title  remains,'  which  he  holds  in  trust  for 
the  vendee,''  accompanied,  however,  by  a  lien  upon  the  land  as 
security  when  any  of  the  purchase  price  remains  unpaid.  This  lien, 
like  every  other  eipiitable  lien,  is  not  an  interest  iu  ihe  land,  is 
neither  a  jus  ad  rem  nor  a  jus  in  re,  but  merely  an  encumbrance." 
The  vendor  is  regarded  as  owner  of  the  purchase  price,  and  the 
vendee,  before  actual  payment,  is  simply  a  trustee  of  the  purchase- 
money  for  him.  Equity  carries  out  this  doctrine  to  its  conse- 
(luences.  Although  the  land  should  remain  in  the  possession  and 
in  the  legal  ownership  of  the  vendor,  yet  equity,  in  administering 
his  whole  propei'ty  and  assets,  looks  not  upon  the  land  as  land, — 
for  that  has  gone  to  the  vendee, — but  looks  upon  the  money  which 
has  taken  the  place  of  the  land ;  that  is,  so  far  as  the  land  is  a  re- 
Brewer  V.  Herbert,  30  Md.  301,  96  Am.  Dee.  582,  1  Scott  425,  2  Keener  421; 
but  see  Goldman  v.  Rosenberg,  116  N.  Y.  78,  15  Am.  St.  Rep.  410,  22  N.  E.  397, 
2  Keener  431;  compare  actions  at  law  where  the  loss  fell  on  the  vendor: 
Tliompson  v.  Gould,  20  Pick.  134,  1  Ames  Eq.  Jur.  234,  2  Keener  40G:  (iould 
V.  Murch,  70  Me.  288,  35  Am.  Rep.  325,  2  Keener  426,  H.  &  B.  661.  Of  course, 
by  special  stipulation  the  risk  of  loss  may  fall  on  the  vendor:  Counter  v.  Mac- 
plierson,  5  Moore  P.  C.  C.  83,  2  Keener  412;  Combs  v.  Fislier,  3  Bibb  (Ky.) 
iJl.  2  Scott  453;  and  if  at  the  time  of  the  loss  the  contract  was  not  binding 
upon  and  enforceable  against  the  vendee,  by  reason  of  a  defect  in  title,  etc.,  the 
vendor  mv.st  bear  the  loss:  Phinizy  v.  Guernsey,  111  Ga.  346,  78  Am.  St.  Rej). 
207.  36  S.  E.  796,  H.  &  B.  671;  Lombard  v.  Chicago  Sinai  Cong.  75  111.  271, 
2  Keener  398;  Blew  v.  McClelland,  29  Mo.  304,  1  Ames  Eq.  Jur.  237  (contract 
not  in  writing).  Similarly,  loss  by  the  happening  of  other  contingencies  falls 
upon  the  vendee;  as  where  an  estate  for  lives  is  purchased,  and  one  or  all  of 
the  lives  drop  before  conveyance,  the  vendee  is  nevertheless  compelled  to  pay  the 
purchase  price:  White  v.  Nutt,  1  P.  Wms.  61,  1  Ames  Eq.  Jur.  226,  2  Scott 
450,  2  Keener  404;  Kenney  v.  We.xham,  6  Madd.  355,  2  Keener  80.  Since  tlie 
vendor  is  in  most  respects  a  trustee  for  the  vendee,  it  would  seem  clear  tliat 
insurance  monej^  paid  to  the  vendor  in  case  of  loss,  by  fire  should  be  held  by 
him  in  trust  for  the  vendee;  see  Phinizy  v.  Guernsey,  supra;  Reed  v.  Lukens, 
44  Pa.  St.  200,  84  Am.  Dec.  425,  and  note,  2  Scott  455;  but  it  has  been  held 
otiierwise,  in  England,  by  a  divided  court ;  Rayner  v.  Preston,  L.  R.  18  Ch.  D.  1, 
1  Ames  Eq.  Jur.  229,  2  Scott  458;  and  see  Castellain  v.  Preston,  L.  R.  11  (,). 
15.  D.  380,  2  Keener  427  (vendor  nnist  refinid  the  insurance  money  paid  him 
to   the   insurer). 

"  His  widow  has  no  dower  in  lands  which  he  contracted  to  sell  before  liis 
carriage;   Dean's  Heirs  v.  ^slitcholl's  Heirs,  4  J.  J.  Marsh    (Ky.)    451,   1   Ames 

■q     Jur.    204. 

'^^  It  is  therefore  the  duty  of  the  vendor  in  possession  to  take  reasonable  care 
.o  preser\'e  the  property  in  the  condition  in  which  it  existed  at  the  time  of  the 
cr.traot;  Foster  v.  Deacon,  3  Madd.  394,  2  Keener  341:  Phillips  v.  Silvester, 
.-.  R.  8  Ch.  App.   173,  2  Keener  356;   Clarke  v.  Ramuz    (1891),  2  Q.  B.  456,   1 

Ar.ies  Eq.  Jur.  222.  2  Keener  380.  2  Scott  424:  Bostwick  v.  Beach.  105  N.  Y. 
6(?1.   12   N.   E.   32.   H.   &   B.   663;    compare   Carrodus  v.   Sharp,  20   Beav.   56,   2 

■  an^T  350,  2    Scott  421. 
•As  to  tlie  vendor's  lien,  see  i)ost,  iJi?  12G0.  1261. 


§  369  EQUITY     JUmsPHUDEXCE.  164 

presentative  of  the  vendor's  property,  so  far  as  it  is  an  element  in 
his  total  assets,  equity  treats  it  as  money,  as  though  the  exchanyt^ 
had  actually  been  made,  and  the  vendor  had  received  the  money 
and  transferred  the  land.  Although  the  legal  title  to  the  land 
would  still  descend  to  the  vendor's  heirs  upon  his  death,  still  when 
the  vendee  afterwards  completes  the  contract,  takes  a  conveyance 
of  the  legal  title  from  the  heirs,  and  pays  the  price,  the  money,  be- 
ing all  the  time  an  element  of  the  vendor's  assets,  and  be- 
ing, therefore,  all  the  time  a  part  of  his  personal  and  not  of  his 
real  property,  goes  to  his  administrators  or  executors,  to  be  by  them 
administered  upon  with  the  rest  of  his  personal  assets,  and  does  not 
go  to  the  heirs. ^° 

§  369.  Sources  of  All  Equitable  Property. — In  the  foregoing'  de- 
scription is  shown  how,  in  one  particular  manner,  by  the  operation 
of  the  fundamental  principle,  the  equitable  estate  in  land,  the 
beneficial  property,  the  real  ownership,  arises,  although  no  one  of 
the  acts  or  events  has  taken  place  which  the  common  law  so  im- 
peratively demands  as  a  prerequisite  to  the  existence  of  ownership 
or  property.  This  instance  is  given  simply  as  an  example.  An 
analj^sis  of  all  the  different  equitable  estates,  property,  and  inter- 
ests analogous  to  property,  either  real  or  personal,  known  to  the 
equity  .lurisprudence  will  disclose  the  fact  that  nearly  all,  if  not 
absolutely  all,  arise  in  the  same  general  manner,  by  the  operation 
upon  the  particular  circumstances  of  the  same  fundamental  prin- 
ciple, and  with  the  same  general  results.^  Thus  an  assignment  oi- 
conveyance  of  that  peculiar  interest  in  land  called  a  "possibility" 
is  at  the  common  law  a  mere  nullity,  so  far  at  least  as  it  attempted 
to  create  or  transfer  any  ownership.  At  the  time  when  the  instru- 
ment is  executed  there  is  no  present,  certain,  vested  property  right 

»Bubb's  Case,  Freem.  Ch.  38,  1  Ame.'?  Eq.  -Tur.  194;  Hoddel  v.  Pugh,  .3.3 
Beav.  489,  2  Scott  412;  Keep  v.  IMiller.  42  N.  J.  Eq.  100,  6  Atl.  495,  1  Keener 
328,  H.  &  B.  1.57;  Mayer  v.  Gowland,  2  Dick.  563,  2  Scott  408,  1  Ames  Eq.  ,Tur. 
195  (does  not  go  to  the' devisee  of  the  vendor)  ;  Potter  v.  Ellice,  48  IST.  Y.  321. 
2  Scott  415.  So,  if  the  contract  Avas  valid  at  the  time  of  the  vendor's 
death,  but  subsequently  became  unenforceable  because  of  the  vendee's  laches, 
equity  will '  not  suffer  the  vendor's  next  of  kin  to  be  disappointed,  but  the 
land  Avill  go  to  the  administrator  as  personal  assets;  Curre  v.  Bowyer,  5 
J>oav.  G,  note  (b),  1  Ames  Eq.  .Jur.  196:  and  see  Lysaght  v.  Edwards,  L.  P. 
2  Ch.  D.  499,  518,  519,  2  Keener  360;  Keep  v.  Miller,  42  N.  .1.  100.  6  Ail. 
495,  2  Keener  328,  H.  &  B.  157.  Otherwise,  of  course,  if  the  contract  was 
unenforceable  at  the  time  of  the  vendor's  death,  since  in  that  case  there  is  no 
conversion;  Thomas  v.  Howell,  L.  R.  34  Ch.  D.  166,  1  Ames  Eq.  -Tur.  196: 
Lysaght  v.  Edwards,  2  Ch.  D.  499,  515,  2  Keener  360.  As  to  rights  of  heirs  and 
y)ersonal  representatives  of  a  vendor  who  has  given  an  option  to  purchase,  which 
is  exercised  after  his  death,  see  post,  §   1163. 

*  Sourwine  v.  Supreme  Lodge,  12  Ind.  App.  447,  54  Am.  St.  Rep.  532.  40  X. 
E.   646,   1    Scott.   320. 


IGo  keoai;d8  that  doxk  wiiicn  ougjit  to  be  done.  §  'Mjd 

in  the  assigTior  upon  which  its  granting  language  can  attach;  and  if 
iit  some  future  time  the  contingency  happens,  the  possibility 
'lianges  into  a  certainty,  and  a  property  right  becomes  vested  in 
the  assignor,  the  arbitrary  and  technical  rules  of  the  common  law 
concerning  conversances  of  real  estate  did  not  allow  the  words  of 
assignment  to  act  upon  this  newly  arisen  and  vested  interest  so  as 
to  transfer  it  to  the  assignee.  The  efit'ect  of  such  a  transaction  in 
efiuity  is  wholly  different.  Although  when  the  assignment  is  exe- 
cuted there  is  no  present  certain  right  of  property  in  the  assignor 
which  can  l)e  ti-ansferred,  yet  in  the  view  of  equity  the  instrument 
operates  at  least  as  an  executory  agreement  on  the  part  of  the  as- 
signor, and  creates  a  present  obligation  resting  upon  him  with 
reference  to  the  land,  which  obligation,  though  iioiv  contingent,  may 
in  future  become  absolute.  If,  therefore,  at  a  subsequent  time  the 
contingency  happens,  and  a  certain  present  property  thereupon 
vests  in  the  assignor,  the  obligation,  now  become  absolute,  at  once 
attaches  to  it.  By  virtue  of  that  obligation  this  property  or  estate 
of  the  assignor  onglit  to  be  conveyed  to  the  assignee  by  an  efficient 
legal  assurance;  and  equity,  regarding  what  ought  to  be  done  as 
done,  treats  the  property  as  transferred,  and  the  assignee  as  vested 
with  the  complete  beneficial  ownership.  In  this  manner  equity',  in 
inirsuance  of  the  fundamental  principle  under  discussion,  gives  full 
effect  to  an  assignment  or  conveyance  of  a  "possibility,"  and 
makes  it  the  source  of  an  equitable  property  in  land.  Again,  a  sale 
of  a  chattel  not  yet  in  existence,  or  not  yet  in  the  possession  of  the 
vendor,  but  to  be  acquired  in  future,  passes  no  property  in  the 
thing-  to  the  buyer  at  law,  even  when  it  subsequently  comes  into  the 
seller's  ownership  and  possession.  Such  contract  gives  to  the 
buyer  a  right  of  action  for  damages,  but  no  property;  he  can  main- 
tain an  action  of  assumpsit,  but  not  replevin,  or  trover,  or  trespass.^ 
But  as  such  a  contract,  although  using:  language  in  praesenti,  is,  in 
effect,  an  executory  agreement,  and  creates  a  definite  obligation 
uj-)on  the  vendor,  e(juity,  upon  the  same  principle  and  in  the  same 
inanner  as  last  above  explained,  regards  it  as  an  assignment;  and 
vrhen  the  thing  comes  into  existence,  or  into  the  ownership  of  the 
seller,  the  real,  beneficial  property  in  it  is  at  once  transferred  to 
and  vested  in  the  buyer,  and  he  is  the  equitable  OAvner.  It  is  in 
consequence  of  the  same  principle  that  an  assignment  of  a  thing 
in  action,  completely  nugatory  at  the  common  law  as  a  transfei', 
and  indeed  opposed  to  the  ancient  theories  of  the  law,  is  regarded 
in  equity  as  clothing  the  assignee  with  all  the  rights  of  his  assignor. 

^  I  am  stilting  of  course,  the  freneral  rule,  and  need  not  describe  the  special 
excoptcd  ease  of  tilings  liaving  a  "potential  existence,"  such  as  an  expected  crop, 
etc. 


§  371  EQUITY     JUI!lt^ri;UDEXCK.  1(30 

These  illustrations  have  all  been  taken  from  express  contracts.  The 
principle  also  extends  to  cases  where  the  leual  relations  arise  from 
conveyances  inter  vivos,  or  wills  in  which  one  of  the  parties  is  a 
volunteer,  and  even  to  transactions  in  which  the  legal  relations 
arise  from  no  such  definite  cause,  but  are  merely  implied  from  tlie 
prior  conduct  of  the  parties.  In  all  express  active  trusts  to  convey 
the  corpus  of  the  trust  property  directly  to  the  cestui  tjue  trust,  and 
in  all  express  passive  trusts  to  hold  the  land  for  the  use  of  the  cestui 
que  trust,  created  either  by  deed  or  by  will,  an  equity  exists  between 
the  beneficiary  and  the  trustee,  an  oblii»-ation  rests  upon  the  latter, 
and  this  equity  is  treated  as  w^orked  out,  the  obligation  a.s  per- 
formed, and  the  beneficiary  as  clothed  with  an  equitable  estate,  de- 
pending in  kind,  (luality,  and  degree  upon  the  special  provisions  of 
the  instrument.  Finally,  in  trusts  arising  by  operation  of  law,  im- 
plied, constructive,  and  resulting  trusts,  the  equity  subsisting  be- 
tween the  cestui  que  trust  and  the  holder  of  the  legal  title,  and  the 
obligation  resting  upon  the  latter,  are  treated  as  though  worked 
out,  by  regarding  the  beneficiary  as  vested  with  an  equitable  but  no 
less  real  ownershij). 
§370.     The    Equitable    Estates    Derived    from    This    Principle. 

§371.  Conversion. — One  of  the  most  direct  and  evident  results 
of  the  principle  is  the  equitable  property  which  arises  from  the 
doctrine  of  conversion, — Avhen  real  estate  is  treated  by  equity  as 
])ersonal  property,  or  personal  estate  as  real  property;  land  as 
money,  or  money  as  land, — "nothing  is  better  established  than  this 
})rinciple.  that  money  directed  to  be  employed  in  the  purchase  of 
land,  and  land  directed  to  be  .sold  and  turned  into  money,  are  to  ])e 
considei-ed  as  that  species  of  property  into  which  they  are  directed 
to  be  converted;  and  this  in  whatever  manner  the  direction  is  giv- 
en, whether  by  will,  by  way  of  contract,  marriage  articles,  settle- 
ment, or  otherwise,  or  whether  the  money  is  actually  deposited,  or 
only  covenanted  to  be  paid;  whether  the  land  is  actually  conveyed, 
or  only  agreed  to  be  conveyed ;  the  owner  of  the  fund  or  the  con- 
tracting i)arties  may  make  land  money  or  money  land."^  A  con- 
version may  thus  take  place  where,  by  a  will,  a  deed,  or  family 
settlement,  land  is  actually  devised  or  conveyed,  or  money  or  securi- 
ties are  actually  assigned  to  trustees,  Avith  directions  in  the  one 
case  to  sell  the  land,  and  pay  over  the  proceeds  to  the  beneficiary, 
and  in  the  other  to  invest  the  fund  in  the  purchase  of  the  land  to 
he  then  conveyed  to  him  -.  or  it  may  in  like  manner  take  place 
where,  by  marriage  articles  or  other  executory  agreement,  land  is 

^  Fletelier  v.  Ashburner,  1  Brown  Cli.  407.  1  Load.  Cas.  Eq.,  4tli  Am.  ed., 
1118,  1120,  1  Scott  ()0(>,  per  Sir  Tlioinas  Sowoll.  :\I    R. 


16?  REGAi;US   THAT    UOXK    WHICH    Orcil'P    TO    l',E   DONK.  §  :5Mr 

covenanted  to  be  conveyed,  or  money  is  covenanted  to  be  assigned, 
iti  like  manner  and  for  like  purposes.  The  effect  of  the  conversion  ' 
is  a  direct  conseciuence  of  the  principle  in  c[uestion.  Personal  estate 
becomes,  to  all  intents  and  purposes,  in  the  viev^^  of  equity,  real, 
<tnd  real  estate  personal.  Money  directed  to  be  invested  in  land 
ilescends  to  the  heir  of  the  oriuinal  beneficiary,  or  passes  under  a 
t?:eneral  description  of  real  property  in  his  will,  while  land  directed 
to  be  converted  into  monej'  goes  to  his  personal  representatives,  or 
is  included  in  a  residuary  bequest  of  his  "personal  pi'operty." 
These  are  some  of  the  incidents  of  a  conversion,  and  are  sufficient 
at  present  to  illustrate  its  nature  and  results.- 

§  372.  Contracts  for  the  Purchase  and  Sale  of  Lands.^— 
S  373.  Assignments  of  Possibilities ;  Sales  of  Chattels  to  be  Ac- 
quired in  the  Future;  Assignments  of  Things  in  Action;  Equitable 
Assignments  of  Moneys;  and  Equitable  Liens.'  .  .  .  and  from  a 
jnortgage  or  other  transfer  inoperative  as  such  at  law,  or  from  the 
mere  executory  stipulations  of  an  agreement,  complete  equitable 
lien.s-  upon  specific  lands,  chattels,  or  funds  are  created."^ 

^  374.  Express  Trusts.^  ...  In  another  class  of  express 
active  trusts,  where  by  the  terms  of  the  creation  the  possession  of 
the  subject-matter,  and  the  control,  management,  and  disposition 
of  it  during  the  time  for  which  the  trust  is  to  last,  are  given  to  the 
trustee,  to  be  exercised  by  him  according  to  his  own  discretion. 
110  such  equitable  property  passes  to  the  cestui  que  trust,  and  his 
right  for  the  time  being  is  only  a  thing  in  action,  not  an  estate;  no 
obligation  rests  upon  the  trustee  as  a  part  of  his  fiduciary  duty  to 
make  a  transfer  of  the  title  to  the  beneficiary;  the  "ought"  re- 

=  Fletc!ier  v.  Aslibunicr.  1  Brown  Ch.  497,  1  Lead.  Cas.  Eq.,  4tli  Am.  e(l.,]118, 
112.3,  1157,  1  8cott  OOfi;  (Jiiidot  v.  Cuidot,  3  Atk.  254,  1  Keener  949,  1  Scoti 
fiOO;  Craig  v.  Leslie,  3  Wheat.  503,  577,  H.  &  B.  39,  Sh.  66.  1  Scott  611: 
Tazewell  v.  Smith's  Adm'rs,  1  Rand.  313,  320,  10  Am.  Dec.  533.  See,  further, 
post,    §§     1159-1178. 

^  See  ante,  §  368. 

'  See  ante.  §  369. 

-In  describinji  equitable  liens,  Carrey,  C.  J.,  in  Daggett  v.  Rankin,  31  Cal. 
:321,  .326.  used  the  following  language:  "The  doctrine  seems  to  be  well  estab- 
lished that  an  agreement  in  writing  to  give  a  mortgage,  or  a  mortgage  de- 
fectively executed,  or  an  imperfect  attempt  to  create  a  mortgage,  or  to 
a.ppro|)riate  specific  property  to  the  discharge  of  a  particular  debt,  will  create 
a  i)if)rtgage  in  equity,  or  a  .specific  [equitable]  lien  on  the  property  intended  1o 
be  mortgaged.  The  maxim  of  equity  upon  which  this  doctrine  rests  is,  that 
equity  looks  upon  things  agreed  to  bo  done  as  actually  performed;  the  true 
meaning  of  Avhich  is.  that  equity  will  Ireat  the  subject-matter,  as  to  collateral 
consequences  and  incidents,  in  the  same  manner  as  if  the  final  acts,  contemplated 
l>v  the  parties,  had  been  executed  exactly  as  they  ought  to  have  been."  See,  also 
post,    §    12.37. 

'  See  ante,  S  369. 


§  37(J  EQUITY    JURISPKUDEXCE.  1<^8 

(liiired  by  the  maxim  is  not  present,  and  the  principle  itself  does 
not  apply  as  long,  at  least,  as  the  trust  remains  alive. 

§  375.  Trusts  Arising  by  Operation  of  Law.  ,  .  .  The  bene- 
liciary  may  not  have  anything  which  the  law  requires  as  a  "title," 
lie  may  even  be  without  any  written  evidence  of  his  right,  his  pro- 
prietorship may  rest  wholly  upon  acts  and  words,  but  still  he  is 
the  eciuitable  owner  because  eciuity  treats  that  as  done  which  in 
good  conscience  ought  to  be  done.^ 

§376.  Mortgage;  Equity  of  Redemption. — There  remains  but 
one  important  equitable  estate  to  be  considered,  that  of  the  mort- 
gagor, called  his  equity  of  redemption ;  and  a  careful  analysis  will 
show  that  the  existence  of  this  as  a  part  of  equity  jurisprudence 
can  be  accounted  for  upon  no  principle  whatever  other  than  the 
one  under  discussion.  By  a  mortgage  in  fee  the  legal  estate  is 
vested  in  the  mortgagee,  and  upon  the  condition  being  broken,  this 
legal  estate  becomes  absolute.  Nevertheless  an  equity  with  respect 
to  the  land. exists  between  the  two  parties,  a  right  in  the  mortgagor 
and  an  obligation  upon  the  mortgagee.  "Etiuity  of  redemption" 
is  only  an  abbreviation  of  "right  in  equity  to  have  a  redemption." 
The  mortgagor  is  clothed  with  this  equitable  right  to  a  redemption, 
or  in  other  words,  this  right  to  compel  a  reconveyance  and  redeliv- 
ery of  possession  at  any  time  upon  payment  of  the  debt  secured 
and  interest,  while  the  corresponding  obligation  rests  on  the  mort- 
gagee to  make  the  conversance  and  delivery.  I'pon  the  universal 
principle  of  treating  everything  as  done  which  in  good  conscience 
ought  to  be  done,  equity  regards  this  right  of  the  mortgagor,  not 
as  a  mere  thing  in  action,  but  as  property,  as  an  estate,  as  the  real, 

'  See  ante,  S  369.  The  opinion  of  tlie  lord  cliancellov,  Lord  St.  Leonards,  will 
apply  to  all  such  cases.  A  man  had  conveyed  his  land  in  fee  by  a  deed  which  was 
fraudulent  as  against  himself,  so  that  he  could  have  procured  the  deed  to  bo 
set  aside  in  equity;  still  the  legal  estate  was  wholly  conveyed  to  the  grantee. 
-Afterwards  the  grantor  devised  the  same  land,  and  the  question  was,  What 
interest  did  he  have  in  the  land,  and  was  it  devisable  ?  See  Stump  v.  CJaby. 
2  De  Gex,  M.  &  G.  623,  630.  Lord  St.  Leonards  said :  "What.  then,  is  the  interest 
of  a  party  in  an  estate  which  he  has  conveyed  under  circumstances  which  would 
give  a  right  in  this  court  to  have  the  deed  set  aside?  In  the  view  of  this  court 
he  remains  the  owner,  and  the  consequence  is,  that  he  may  devise  the  estate,  not 
as  a  legal  estate,  but  as  an  equitable  estate.  The  testator  therefore  had  a 
devisable  interest."  Now,  where,  as  in  this  case,  the  legal  title  had  vested  in 
the  grantee,  upon  what  principle  was  the  grantor  still  regarded  as  the  equi- 
table owner,  with  all  the  incidents  of  the  beneficial  ownership?  Plainly  because 
from  the  fraud  an  equity  with  respect  to  the  land  existed  between  the  grantee 
and  the  grantor,  and  an  obligation  rested  upon  the  former  to  reconvey. 
since  the  grantee  in  good  conscience  ought  to  reconvey,  equity  treated  the  parties 
as  though  this  had  been  done,  and  the  grantor  as  holding  the  equitable  proper- 
ty. Upon  the  same  principle  is  based  the  notion  of  equitable  property  in  the 
beneficiary  in   all  constructive  and  other  implied  trusts. 


169  LOOKS    TO    INTENT    HATH  Kit    THAN    TO    FORM.  §  3T8 

beneficial  ownership  of  the  hmd,  siil).ie('t.  however,  to  the  lien  created 
by  the  mortgage  as  a  security  to  the  mortgagee  for  the  payment 
of  his  demand.  The  mortgagor's  equitable  property  is,  in  this 
respect,  exactly  analogous  to  the  equitable  estate  of  a  vendee  sub- 
ject to  a  lien  in  favor  of  the  vendor  as  security  for  payment  of  the 
purchase  price. 

§  377.  Conclusions. — In  the  foregoing  discussion  I  have  shown, 
in  the  mo.st  conclusive  manner,  that  every  species  of  purely  e(iuit- 
;^ble  property,  and  of  equitable  interests  analogous  to  property, 
except  those  which  are  intentionally  created  by  the  direct  and 
affirmative  ojieration  of  some  instrument  similar  in  its  actiou  to  a 
conveyance  at  law.^  is,  a  certain  and  necessary  result  of  the  prin- 
ciple, that  equity  treats  that  as  done  which  in  good  conscience 
ought  to  be  done.  It  is  uo  exaggeration,  therefore,  to  say  that  the 
principle  lies  at  the  very  f(Mmdation  of  the  department  of  equity 
.iurisprudence  Avhich  deals  with  equitable  estates,  property,  and  in- 
terests analogous  to  property. 


SECTION  II. 
EQUITY  LOOKS  TO  THE  INTENT  RATHER  THAN  TO  THE  FORM. 

*  ANALYSIS. 

§  378.  Its  nieanin!?  and   effoct. 
!?  379.  Legal   requireinents   of   mere   form. 
f§  380-384.  Is  the  source  of  equitable  doctrines. 
S   380.  Of    equitable    property. 
I   381.  Of  penalties   and   forfeitures. 
§   382.  Of  jnortn-aoes. 
S    383.   Effect    of    tbe    seal. 
§   384.  Other  special   instances. 

§  378.  Its  Meaning  and  Effect. — The  principle  involved  in  this 
maxim,  which  is  one  of  great  practical  importance,  pervades  aiul 
atTects  to  a  greater  or  less  degree  the  entire  system  of  equity  juris- 
prudence, and  is  inseparably  connected  Avith  that  which  forms  the 
subject  of  the  preceding  section.  In  fact,  it  is  only  hi/  looh'nr/  at  tlio 
intent  ratlipv  tJinn  at  tlir  form,  that  pqnity  is  ahle  to  treat  that  as  (tone 
ii'hich  in  r/ond  ronsripnce  ovr/hf  to  he  rfnnc.  In  explaining  the  mean- 
ing and  operation  of  the  one  maxim,  and  the  effects  produced  by  it. 
I  have  necessarily  described  the  sioi'nificance  and  workings  of  Ihi^ 
other.     The  two  principles  act  together  and  aid  each  othei'.  and  it 

'The  lien  held  by  the  mortcairee.  created  by  the  affirmative  operation 
of  tlie  mortofa^e.  and  some  other  equitable  liens,  are  examples  of  this  class. 


§  :3T9  EQUITY    JUIUSJPKUDENCE.  ITO 

is  by  their  universality  and  truth  that  much  of  equity  jurisprudence 
which  is  peculiar  and  distinctive,  in  contrast  with  the  law,  has  been 
developed.  Equity  always  attempts  to  get  at  the  substance  of  things, 
and  to  ascertain,  uphold,  and  enforce  rights  and  duties  which  spring 
from  the  real  relations  of  parties.  It  will  never  suffer  the  mere 
appearance  and  external  form  to  conceal  the  true  purposes,  objects, 
and  consequences  of  a  transaction.  This  principle  of  looking  after 
tlie  intent  and  giving  it  efifect  was  fully  recognized  and  distinctly 
formulated  at  an  early  day.  In  one  leading  case  Lord  Chancelloi" 
Macclesfield  said:  "The  true  ground  of  relief  against  penalties 
is  from  the  original  intent  of  the  case,  where  the  penalty  is  designed 
only  to  secure  money,  and  the  court  gives  the  party  all  that  he 
expects  or  desired."^  In  another  case  Lord  Thurlow  said:  "The 
rule  is,  that  where  a  penalty  is  inserted  merely  to  secure  the  en- 
joyment of  a  collateral  object,  the  enjoyment  of  that  object  is  con- 
sidered as  the  principal  intent  of  the  deed,  and  the  penalty  only  as 
occasional."^  It  is  true  that  in  both  of  these  cases  the  court  was 
dealing  with  penalties;  but  the  principle  stated  in  them  is  of  uni- 
versal application,  that  equity  always  seeks  for  the  real  intent 
under  the  cover  of  whatever  forms  and  appearances,  and  will  give 
elfect  to  such  intent  unless  prevented  by  some  positive  and  manda- 
tory rule  of  the  law. 

§  379.  Legal  Requirements  of  Form. — The  ancient  common  law 
paid  great  deference  to  matters  of  pure  forhi,  as,  for  example,  in 
the  symbolical  process  called  "livery  of  seisin,"  by  which  alone  a 
freehold  estate  in  land  could  be  transferred.  Although  such  ob- 
servances have  long  been  abandoned,  still  the  present  rules  of  the 
law  permit  property  in  land  or  chattels  to  be  created,  transferred, 
or  acquired  only  in  certain  defined  modes,  by  means  of  the  certain 
specified  acts  or  events  which  constitute  all  the  possible  legal  titles. '^ 
It  was  also  one  characteristic  feature  of  the  ancient  law  that  it 
held  contracting  parties  to  a  most  rigid  observance  of  all  the  stipu- 
lations of  their  valid  agreements;  performance  to  the  very  letter 
of  every  covenant  or  promise  was  the  inflexible  rule.*    Still  another 

'  Peachy  v.  Duke  of  Somerset,  1  Strange,  447,  Prec.  Ch.  5GS,  2  Eq.  Cas.  Abr. 
227,    228. 

'Sloman  v.  Walter,  1  Brown  Ch.  418.  And  see  2  Lead.  Cas.  Eq.  4th  Am.  ed., 
2014,   2022,   and   notes. 

'  See  an  enumeration  of  these  modes,  ante,  §   366. 

-For  example,  if  A  borrowed  one  hundred  pounds  to  be  repaid  in  six  months, 
and  as  security  gave  his  creditor  a  conditional  conveyance  in  fee  of  an  estate 
worth  one  hundred  thousand  pounds,  to  become  void  if  the  money  was  paid  on 
the  specified  day,  and  in  default  of  such  payment  to  be  absolute,  and  for  any 
reason  the  debtor  suffered  the  pay  day  to  pass  without  performance,  the  ancient 
law  would  no  more  relieve  the  debtor  fro/r  the  onerous  provisions  of  his  con- 


171  LOOKS    TO    iXlT.NT    IIATIIKU    THAN    TO    FORM.  §  3S'' 

purely  formal  element  of  the  law  consisted  in  the  extreme  import- 
ance which  it  attached  to  the  seal.  The  momentous  and  often  most 
arbitrary  results  which  flowed  from  the  presence  or  absence  of  a 
seal,  and  its  effect  upon  private  riylits  of  property  and  of  contract, 
rendered  many  of  the  rules  of  the  early  law  peculiarly  rigid  and 
almost  barbarous.  The  ecjuity  jurisprudence,  in  all  these  respects, 
differed  widely  from  the  common  law;  from  the  very  beginning  it 
was  distinguished  by  an  entire  absence  of  these  arbitrary  and 
purely  formal  incidents.  That  they  have  now,  in  a  great  degree, 
disappeared  from  the  law  itself,  which  has  in  consequence  become 
more  enlightened  and  more  just,  is  wholly  due  to  its  gradual  adop- 
tion of  equitable  principles,  to  its  acceptance  of  doctrines  originat- 
ing in  the  court  of  chancery.^ 

§  380.  Is  the  Source  of  Equitable  Doctrines— Of  Property.— I 
shall  now  state,  by  way  of  illustration,  some  of  the  most  important 
instances  in  which  the  principle  has  been  applied,  and  the  settled 
doctrines  of  equity  jurisprudence  which  are  its  immediate  results. 
The  first,  and  by  far  the  most  important  consequence  of  the  prin- 
ciple, reaching  through  a  large  part  of  the  equity  jurisprudence,  is 
fonnd  in  every  species  of  equitable  property,  estate,  or  interest,  and 
of  eciuitable  lien,  so  far  as  these  exist  by  the  doctrines  of  equity, 
but  not  by  those  of  the  law.  While,  as  is  shoAvn  in  the  last  section, 
all  these  purely  equitable  property  interests  and  liens  arise  from 
the  direct  operation  of  the  grand  principle,  equity  treats  that  as 
done  which  in  good  conscience  ought  to  be  done,  still  this  maxim 
could  only  produce  such  effects  in  consequence  of  the  other  prin- 
ciple, that  equity  looks  at  the  intent  rather  than  at  the  form.^  In 
every  kind  of  equitable  property,  or  interest  analogous  to  property, 

vevance,  or  modify  their  rigor,  than  it  would  discharge  him  from  his  obligation 
to  pay  the  debt  of  one  hundred  pounds:  both  would  be  regarded  as  standing 
u[>on   exactly  the   same  foundation   of   express   contract. 

"■  Pom.  Eq.  .Tur.  §  70.  "In  most  of  the  states  all  distinction  between  sealed 
iuid  unsealed  instruments  is  abolished,  except  so  far  as  the  statute  of  lim- 
ifations  operates  to  bar  a  right  of  action;  in  others,  the  only  effect  of  the  seal 
upon  executory  contracts  is  to  raise  a  prima  facie  presumption  of  a  considera- 
tion, while  it  is  still  required  on  a  conveyance  of  land:  in  a  very  few,  the 
common-law  rule  is  retained,  which  makes  the  seal  conclusive  evidence  of  a 
consideration.  By  this  legislation,  all  the  distinction  between  the  legal  and 
the  equitable  doctrines  concerning  contracts  and  other  rights,  except  those 
growing  out  of  a  conveyance  of  land,  founded  upon  the  presence  or  absence 
f)f  the  seal,  has  been  abrogated.  The  equitable  doctrines,  of  course,  remain,  but 
Oiey  have  become  a  part  of  the  law,  and  no  necessity  remains  of  applying  to 
courts  of  equity  for  their  enforcement.  Even  the  equitable  rule  permitting  a 
sealed  agreement  to  be  modified  or  replaced  by  subsquent  parol  contract  is 
generally  adopted  by  the  law  courts,  except  in  cases  where  the  statute  of  fraudi 
prevents    its    operation." 

'Clarke  v.  Clarke,  40  S    C.  2.'^n,  57  Am.  St.  Rep.  fi75. 


§  382  EQUITY    JUKISPItrDKXCE.  172 

the  external  acts  or  events  pei'eniptoi'ily  recinired  by  the  hnv  in 
order  to  the  existence  of  any  property  are  wholly  wanting;  so  that 
if  the  external  form  of  the  transaction  had  been  regarded,  no  pro{)- 
ert}',  nor  right  resembling  property,  could  possibly  exist.  It  is  by 
disregarding  these  forms  and  looking  at  the  real  relations  involved 
in  the  acts  of  the  parties,  at  the  real  substance  and  intent  of  the 
transaction,  that  the  court  of  chancery  has  built  up  its  magnificent 
structure  of  equitable  property,  estates,  and  proprietary  interests. 
The  same  is  true  of  a  large  part  of  equitable  liens.  The  external 
form  is  either  an  assignment,  which  at  the  law  is  wholly  nugatory, 
or  an  executory  agreement,  which  at  law  only  creates  a  mere  per- 
sonal right  of  action, — at  most  a  claim  for  damages;  but  equity, 
going  below  this'  mere  appearance,  and  seeing  the  real  intent,  gives 
effect  thereto  by  treating  the  assignment  or  agreement  as  creating 
a  definite  lien  upon  specific  lands,  or  chattels,  or  securities,  or 
other  kind  of  fund,  as  the  case  may  be.^  The  discussions  of  the 
last  preceding  section  fully  illustrate  and  demonstrate  the  correct- 
ness of  this  conclusion. 

§  381.     Penalties  and  Forfeitures.^ —    .     .    . 

§  382.  Mortg-ages. — Another  most  remarkable  application  of  the 
principle,  from  which  arose  an  entire  department  of  equity  juris- 
prudence, was  the  equity  of  redemption, — the  equitable  right  and 
estate  of  the  mortgagor,  after  the  legal  title  of  the  mortgagee  had 
become  absolute  by  a.  non-performance  of  the  condition.  Look- 
ing at  the  real  intent  of  th-^  parties,  and  considering  the  debt  as 
the  substantial  feature,  and  the  conveyance  as  a  security,  only,  for 
its  payment,  the  court  of  chancery  declared  that  a  breach  of  the 
condition  was  in  the  nature  of  a  penalty  which  ought  to  be  relieved 
against,  and  that  the  mortgagee  had  an  equity  to  redeem  on  pay- 
ment of  the  debt  and  inte-rest,  notwithstanding  the  forfeiture  at 
law;  and  furthermore,  that  this  right  of  redemption  could  not  be 

'  Ah  instrument  purportii'.g  to  be  a  mort^ase  of  law,  but  imperfectly  executed 
by  the  omission  of  the  seal,  or  in  some  other  manner,  so  as  to  be  defective  in 
form,  is  wholly  nugatory  at  law  as  a  valid  mortgage,  or  as  giving  any  interesr 
in  or  claim  upon  the  parcel  of  land  described.  Equity,  however,  not  saying  that 
tiie  instrument  is  a  triie  legal  mortgage,  declares  that  it  is  an  efficient  agree- 
ment to  give  a  mortgage,  and,  as  such,  tliat  it  creates  an  equitable  lien  upon 
the  land,  valid  for  all  purposes,  and  as  against  all  parties,  except  a  purchaser 
of  the  land  for  a  valuable  consideration  and  without  notice:  See  Love  v. 
Sierra  Nevada,  etc.,  Co.,  32  Cal.  039,  G33,  G54,  91  Am.  Dec.  G02,  and  cases  cited, 
and    post,    S  1237. 

A  deed  defective  in  form  will  generally  be  treated  in  equity  as  a  contract 
to  convey,  specific  performance  of  which  Avill  be  decreed  when  that  remedy  is 
not  inequitable.  See  Sparks  v.  Woodstock  Iron,  etc.,  Co.,  87  Ala.  294,  6  South. 
195     (defective    attestation). 

'See  post,    §S  433,    450,   456. 


173  LOOKS    TO    IXTKXT    R^TIIEIJ    TIIAX    TO    FORM.  §  383 

tjiven  up.  -vvjiivt'd.  or  parted  with  by  any  stipulation  or  covenant 
in  tlie  tleeil.'  Tiie  whole  system  of  equity  jurisprudence  presents 
no  finer  example  of  the  triumph  of  equitable  principles  over  the 
arbitrary  and  unjust  doojmas  of  the  common  law  than  this. 

§  383.  Effect  of  the  Seal. — The  important  part  played  by  the 
seal  in  the  early  common  law,  and  the  intensely  technical  and  arbi- 
trary effects  produced  by  it  according  to  the  legal  rules,  are  too 
well  known  to  require  any  statement.  Equity  has  applied  its  prin- 
ciple of  looking  at  the  intent  rather  than  at  the  form,  in  some  in- 
stances, by  treating  the  presence  of  a  seal  as  a  matter  of  no  conse- 
(luence,  as  producing  no  effect  upon  rights  and  duties  of  parties; 
in  other  instances,  by  disregarding  its  absence  where  such  absence 
would  be  fatal  at  the  law.  .Although  the  common  law,  in  theory, 
rcfjuired  a  valuable  consideration  in  order  to  render  any  agreement 
valid  and  binding,  yet  it  declared  that  a  seal  was  conclusive  evi- 
dence of  such  a  consideration,  and  under  no  circumstances  would 
it  permit  this  arbitrary  eft'ect  to  be  removed  by  evidence  showing, 
no  matter  how  clearly,  the  absence  of  any  consideration.  Equity, 
(^.isregarding  such  form  and  looking  at  the  reality,  always  requires 
an  actual  consideration,  and  permits  the  want  of  it  to  be  shown, 
notwithstanding  the  seal,  and  applies  this  doctrine  to  covenants, 
settlements,  and  executory  agreements  of  every  description.^  An- 
other application  of  the  principle  is  still  more  striking  and  just. 
The  early  common  law  attributed  such  an  efficacy  to  the  seal  that  a 
written  obligation  under  seal  could  only  be  discharged  by  an  instru- 
ment of  the  same  high  character, — that  is,  by  a  writing  under  seal. 
A  subsequent  written  but  not  sealed  agreement,  revoking  or  modi- 
lying  the  term.i  of  the  prior  specialty,  or  a  parol  accord,  or  even 
paj-ment  in  full  unaccompanied  ])y  technical  release,  or  any  other 
matter  in  pais  could  not  alter  the  rights  and  liabilities  arising  from 
the  sealed  instrument;  it  could  still  be  enforced  against  the  obligor 
hi'  an  action  at  law,  and  such  acts  furnished  him  no  legal  defense 
whatever.  Such  a  doctrine  was  abhorrent  to  the  spirit  of  equity. 
I'aying  no  attention  to  the  form  of  the  transaction,  if  the  act  done 
was,  in  substance,  ?.  discharge,  the  court  of  equity  treated  it  as 
etpiivalent  in  its  effects  to  a  technical  release,  and  would  relieve 
the  obligor  in  any  manner  required  hy  the  circumstances  of  the 
case,  even  by  a  decree  for  r  delivery  up  or  cancellation  of  the  sealed 

'Howard  v.  Harris.  1  Vcrii.  190,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1945,  1949, 
19S3,  Sh.  57;  Casbornc^  v.  Scarfc,  I  Atk.  003,  Sh.  213,  1  IScott  33. 

'.lefferys  v.  Jefferys,  Craio-  &  P.  138,  141.  1  Ames  Eq.  Jur.  261,  2  Keener  760, 
1  Scott,  303,  2  Scott  1.54:  .Miiiturn  v.  Seymour,  4  Johns.  Ch.  497,  1  Scott  302 j 
.-■elby  V.  Case,  S7  JMd.  459,  39  Atl.   1041, 


§  384  EQUITY     JUKISPKUDEXCE.  174 

undertaking-.-  One  most  important  consequence  of  this  principle 
is  seen  in  the  legal  and  equitable  liabilities  of  sureties.  Where  the 
surety's  contract  is  under  seal,  he  is  not,  by  the  strict  common-law 
rules,  discharged  by  any  conduct  of  the  creditor  towards  the  prin- 
cipal debtor,  by  an  alteration  of  the  principal  debtor's  undertaking, 
or  by  an  agreement  with  the  principal  debtor  extending  his  time 
of  payment,  since  the  surety's  liability  could  only  be  discharged  by 
an  instrument  under  seal.-*  Equity  was  therefore  compelled  to  in- 
terfere under  these  circumstances,  and  relieve  the  surety  by  re- 
straining the  creditor  from  suing  at  law,  and  compelling  him  to 
surrender  and  cancel  the  guaranty.*  There  are  other  instances  of 
the  disregard  sho^vn  by  ecfuity  to  the  presence  or  absence  of  a  seal 
in  tletermining  the  rights  of  parties.  If,  for  an  example,  an  instru- 
ment, from  its  imperfect  execution  in  wanting  a  seal,  is  inoperative 
at  law  as  a  conveyance  or  as  a  mortgage  of  land,  equity  may  treat 
it  as  an  agreement  to  convey  or  to  give  a  mortgage,  and  as  there- 
fore creating  an  ecpiitable  interest  in  or  lien  upon  the  land.^ 
§  384.     Other  Special  Instances.^ —     .     .     . 

-  Ot  course  the  discharge  must  be  upou  a  valuable  consideration  in  order  that 
equity  might  enforce  it:  JNJcCveey  v.  Day,  119  N.  Y.  1,  23  N.  E.  198,  16  Am.  St. 
Kep.  793,  6.  L.  R.  A.  .50(1  The  earh'  common  law  was  so  monstrous  in  its  ad- 
herence to  this  rule,  that  if  the  debtor  on  a  bond  or  other  specialty  had  paid  the 
demand  in  full,  and  had  even  taken  a  written  receipt  therefor,  but  had  failed  to 
procure  a  surrender  up  of  the  instrument  or  a  release  of  his  liability,  the  creditor 
might  still  sue  at  law  and  recover  the  full  amount  again,  and  the  law  gave 
no  redress  or  defense.  One  of  tlie  first  steps  by  which  equity  broke  in  upon 
tiie  rigor  of  the  law  was  the  remedy  which  it  gave  to  the  obligor  under  these 
circumstances,  as  stated  in  the  text.  It  is  a  fact  that  the  common-law  lawyers 
vehemently  inveighed  against  the  court  of  chancery  for  this  alleged  invasion 
of  legal  rules.  The  equitable  doctrine  long  ago  became  a  part  of  the  law,  but 
it  should  not  be  forgotten  that  it  originated  in  the  court  of  chancery. 

■■  In  most  of  our  states,  if  not  indeed  in  all,  this  particular  rule  of  the  com- 
mon   law  does  not   prevail. 

*Rees  V.  Berrington,  2  Ves.  540.  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1867,  1870,  1896. 

*  Frost  V.  Wolf,  77  Tex.  455,  19  Am.  St.  Rep.  761,  14  S.  W.  440;  Allis  v» 
Jones,    45     P"ed.     148. 

^One  of  the  most  striking  applications  of  this  maxim  is  the  doctrine  re- 
lafing   to   Merger;     see   post,    §    786. 


175  HE  WHO   SEEKS  EQUITY  MUST  DO  EQUITY.  §  oS'i 


SECTION  III. 

HE   WHO   SEEKS    EQllJ  V    MUST   DO   EQUITY. 


§  385.  Goneriil   meaning   of   the   principle. 

|§  386.387.  In   what   cases  applicable. 

§  388.  Is   a   general    rule   regulating   the   administration   of   reliefs. 

§§  389-393.  Illustrations   of  the  principle. 

§   389.  The    wife's   equity. 

§   390.  Equitable   estoppel. 

§  391.  Relief   against   usury. 

§§  392,393.  Other  special  instances. 

§§  394-390.  Is  also  the  source  of  certain  equitable  doctrines. 

§  395.  Of    election. 

§   390.  Of    marshaling    securities. 

§385.  Its  Meaning. — This  maxim  expresses  the  o-overning  prin- 
ciple that  every  action  of  a  court  of  equity,  in  determininji'  rights 
and  awarding  remedies,  must  be  in  accordance  with  conscience  and 
good  faith.  In  its  broadest  sense  it  ma^^  be  regarded  as  the  founda- 
tion of  all  equity,  as  the  source  of  every  doctrine  and  rule  of  equity 
jurisprudence;  since  it  is  undeniable  that  courts  of  equity  do  not 
recognize  and  protect  the  eqtiitable  rights  of  litigant  parties,  unless 
such  rights  are,  in  pursuance  of  the  settled  juridical  notions  of 
morality,  based  upon  conscience  and  good  faith.  Bitt  as  a  practical 
principle,  guiding  the  equity  courts  in  their  administration  of  jus- 
tice, the  maxim  is  only  used  in  a  much  narrower  and  more  special 
meaning.  Even  in  this  narrow  signification  it  is  a  principle  of  most 
extensive  application;  it  may  be  applied,  in  fact,  in  ever^^  kind  of 
litigation  and  to  every  species  of  remedy.  The  meaning  is,  that 
whatever  be  the  nature  of  the  controversy  between  two  definite 
parties,  and  whatever  be  the  nature  of  the  remedy  demanded,  the 
court  will  not  confer  its  equitable  relief  upon  the  party  seeking  its 
interposition  and  aid,  unless  he  has  acknowledged  and  conceded, 
or  will  admit  and  provide  for,  all  the  equitable  rights,  claims,  and 
demands  justly  belonging  to  the  adversary  party,  and  growing  out 
of  or  necessarily  involved  in  the  subject-matter  of  the  controversy.' 
It  says,  in  effect,  that  the  court  will  give  the  plaintifip  the  relief 
to  which  he  is  entitled,  only  u{)on  condition  that  he  has  given,  or 
con.sents   to   give,   the   defendant   such   corresponding   rights   as   he 

'Charleston  &  W.  V.  Ry  Co.  v.  Hughes.  105  Ca.  1.  70  Am.  St.  Rep.  17.  .30 
S.  E.  972;  Hooper  v.  Central  Trust  Co.,  81  Md.  559,  32  Ail.  505,  29  L.  R.  A. 
262. 


§  3SG  EQUITY     JURISI'KUDKNCE.  17'6 

also  may  be  entitled  to  in  respect  of  the  subject-matter  of  the  suit.- 
This  meaning-  of  tlie  principle  was  more  definitely  expressed  by  an 
eminent  judge  in  the  following  terms:  "The  court  of  equity  refuses 
its  aid  to  give  to  the  plaintiff  what  the  law  would  give  him  if  the 
courts  of  common  law  had  jurisdiction  to  enforce  it,  without  im- 
jxising  upon  him  conditions  which  the  court  considers  he  ought 
to  comply  with,  although  the  subject  of  the  condition  should  be 
one  which  the  court  would  not  otherwise  enforce."  In  this  nar- 
row and  particular  sense  the  principle  becomes  a  universal  rule 
governing  the  courts  of  ecpiity  in  administering  all  kinds  of  equit- 
able relief,  in  any  controversy  where  its  application  may  be  neces- 
sary to  work  out  complete  justice.^ 

§  386,  When  Applicable. — If  we  analyze  this  general  formula, 
we  shall  obtain  a  more  accurate  notion  of  the  real  scope  and  effect 
of  the  principle.  In  the  first  place,  the  rule  only  applies  where 
a  party  is  appealing  as  actor  to  a  court  of  eijuity  in  order  to  obtain 
some  equitable  relief;  that  is,  either  some  relief  equitable  in  its 
essential  nature,  as  an  injunction  or  a  cancellation,  or  equitable 
because  it  ma^^  come  Avithin  the  power  of  the  court  to  administer 
by  virtue  of  its  concurrent  jurisdiction,  as  an  accounting,  or  a 
pecuniary  recovery;  and  it  is  necessarih'  assumed  that  the  party 
would,  but  for  the  operation  of  the  rule,  be  entitled  to  all  the 
relief  which  he  demands.^  Unless  the  party  were  otherwise  so  en- 
titled, there  would  plainly  be  no  occasion  for  invoking  the  rule. 
With  respect  to  the  terms  vrhich  may  be  imposed  upon  the  party 
as  a  condition  to  his  obtaining  the  relief  in  accordance  with  the 
rule, — that  is,  the  "equity"  which  he  must  do, — it  is  undoubtedly 
true,  as  said  by  Vice-Chancellor  Wigram,  that  the  court  obtains 
no  authority  from  this  principle  to  impose  any  arbitrary  conditions 
not  warranted  by  the  settled  doctrines  of  equity  jurisprudence ; 
the  court  cannot  deprive  a  plaintiff'  of  his  full  equitable  rights, 
under  the  preten.se  of  awarding  to  the  defendant  something  to 
which  he  has  no  equitable  right,  something  which  equity  juris- 
prudence does  not  recognize.  The  principle  only  requires  the 
plaintiff  to  do  "ec|uity."  According  to  its  true  meaning,  therefore, 
the  terms  imposed  upon  the  plaintiff",  as  the  condition  of  his  ob- 
taining the  relief,  must  consist  of  the  awarding  or  securing  to  the 
defendant  something  to  which  he  is  justly  entitled  by  the  principles 

'Charleston  &  W.  C.  R'y  Co.  v.  Hughes.  105  Gn.  1.  70  Am.  St.  Rep.  17,  30 
«.  K.  972;  .Mack  v.  Hill.  2S  Mont.  HO.  72  Pac.  307. 

^Hanson  v.  Keating-.  4  Hare.  1.  4.  1  Seott.  274.  per  Wigram.  V.  C. :  Stargis 
V.  Champnevs.  5  Mylne  &-  C.  97,  101,  per  Lord  Cottenham ;  Otis  v.  Cregory, 
111    Ind.   504,   13   N.   E.   39. 

'Otis  V.   Gregory,   IIT  Tnd.    504,    13    X.    E.    39. 


ITT  IIE   ^V1I0    .SKKKS   EQUITY    MUST   DO   EQUITY.  §  3S7 

and  doctrines  of  equity,  although  not  perhaps  by  those  of  the 
common  law, — something  over  which  he  has  a  distinctively  equit- 
able right.  In  many  eases,  this  right  or  relict*  thus  secured  to  or 
obtained  by  the  defendant,  under  the  operation  of  the  rule,  might 
be  recovered  by  him,  if  he  as  plaintitif,  the  parties  being  reversed, 
had  instituted  a  suit  in  equity  for  that  purpose.  But  this  is  not 
indispensable,  nor  is  it  even  always  possible.  The  rule  may  apply, 
and  under  its  operation  an  ecpiitable  right  ma^'  be  secured  or  an 
equitable  relief  awarded  to  the  defendant  which  could  not  be 
obtained  by  him  in  any  other  manner, — that  is,  which  a  court  of 
equity,  in  conformity  with  its  settled  methods,  either  would  not, 
or  even  cuiild  not,  have  secured  or  conferred  or  awarded  by  its 
decree  in  a  suit  brought  for  that  purpose  by  him  as  the  plaintitf.- 
§  387.  Finally,  the  principle  will  not  applj'  so  as  to  compel  the 
plaintiff  to  do  equit3%  where  the  relief  sought  by  the  plaintiff,  and 
the  equitable  riglit  or  relief  secured  or  awarded  to  the  defendant, 
belong  to  or  grow  out  of  two  entirely  separate  and  distinct  mat- 
ters.    The  true  meaning  of  the   rule  in  this   respect  is,   that   the 


=  De  Walsh  v.  Braman,  IfiO  111.  415,  43  N.  E.  597;  Farmers'  Loan  &  T.  Co. 
V.  Denver,  L.  &  G.  R.  Co.,  120  Fed.  4(1,  51.  One  or  two  simple  examples  Avill 
illustrate.  One  of  the  most  familiar  applications  of  the  rule  is  the  '"wife's 
equity,"  so  called,  the  securing  to  her  a  portion  of  her  own  property,  to  which 
her  husband  becomes  legally  entitled  by  the  marriage ;  whenever  her  husband 
or  his  assignee  comes  into  a  court  of  equity  and  seeks  its  aid  to  reach  her 
property,  the  court  may,  luider  certain  circumstances,  compel  the  plaintiff, 
as  a  condition  of  his  obtaining  relief,  to  secure  a  portion  of  the  property 
to  tlie  separate  use  of  the  wife  by  a  settlement,  although  at  law  she  has  no 
right  over  it.  This  is  sometimes  done  in  a  case  where  the  wife  herself  could,  by 
means  of  her  own  suit,  have  obtained  the  same  relief;  but  it  may  also  be  done 
where,  under  the  settled  doctrines  of  equity,  no  such  suit  could  be  maintained 
by  the  wife.  Under  statutes  against  usury,  which  make  void  all  usurious 
debts  and  Obligations,  the  debtor  may  maintain  a  suit  in  equity  for  the  pur- 
pose of  procuring  the  usurious  bond  or  other  security  to  be  surrendered  up  and 
canceled ;  but  this  relief  will  only  be  granted  upon  the  condition  that  the 
plaintiff  does  equity  by  repaying  to  his  creditor  the  amount  which  was  actually 
loiined  upon  tbe  security.  In  this  instance,  by  the  operation  of  the  principle, 
the  defendant  ol)tains  a  relief  Avhich  he  could  not  possibly  have  obtained  in  any 
other  manner:  for  if  he  had  sued  the  debtor  either  at  law  or  in  equity  to  en- 
force the  security  and  recover  the  debt,  the  defense  of  usury  would  be  a  com- 
plete bar.  Again,  in  many  of  the  states  a  tax-payer  may  maintain  a  suit  in 
equity  and  restrain  the  collecting  officer  from  enforcing  payment  of  illegal 
taxes;  but  the  relief  of  injuction  will  not  be  granted  unless  the  plaintiff  pays 
in  full  all  that  part  of  the  tax  assessed  against  him  which  is  legal.  Here  also 
the  defendant  obtains  a  relief,  under  Ihe  operation  of  the  principle,  which  he 
could  obtain  from  the  court  of  equity  in  no  other  manner;  for  the  coun 
would  not  sustain  a  suit  in  equity  bronglil  by  llie  collecting  officer  to  enforce 
payment   of  the  tax:     his   only   affirmative   remedy  would   be   either   at  law   oi 

by   special   statutory   proceedings. 
12 


§391  EQUITY    JL  i;isi'i;ldi:-\c'K.  178 

tHjuitable  right  or  relief  secured  to  or  conferred  upon  the  defend- 
ant must  be  something  connected  with  the  subject-matter  of  the 
very  suit  or  controversy  for  the  proper  decision  of  which  the  prin- 
ciple is  invoked.  Or,  to  slate  the  same  doctrine  in  more  detaiknl 
and  particular  terms,  "the  rule  is  applied  where  the  adverse 
■equity  to  be  secured  or  awarded  to  the  defendant  grows  out  of 
the  very  controversy  before  the  court,  or  out  of  such  transactions 
as  the  record  show^s  to  be  a  part  of  its  history,  or  where  it  is  so 
connected  with  the  cause  in  litigation  as  to  be  presented  in  the 
pleadings  and  proofs,  with  full  opportunity  afforded  to  the  party 
thus  recriminated  to  explain  or  refute  the  charges."^  If  the  con- 
duet  of  the  plaintiff,  growing  out  of  matters  entirely  distinct  and 
unconnected  with  those  embraced  within  the  suit,  can  affect  his 
I'ight  to  obtain  relief  which  would  be  otherwise  proper,  it  must  be 
by  virtue  of  another  equitable  maxim.  He  who  comes  into  a  court 
of  equity  must  come  with  clean  hands'. 

§  388.  Is  a  General  Rule  Regulating  Equitable  Reliefs.— With 
this  explanation  of  its  scope  and  meaning,  it  may  be  regarded, 
as  a  universal  rule  governing  the  court  of  equity  in  the  administra- 
tion of  its  remedies,  that  whatever  may  be  the  nature  of  the  relief 
sought  by  the  plaintiff,  the  equitable  rights  of  the  defendant, 
growing  out  of  or  intimately  connected  with  the  subject  of  the 
controversy  in  question,  will  be  protected;  and  for  this  purpose 
the  plaintiff  will  be  required,  as  a  condition  tc  his  obtaining  the 
relief  which  he  asks,  to  acknowledge,  admit,  provide  for,  secure,  or 
allow  whatever  equitable  rights  (if  any)  the  defendant  may  have, 
and  to  that  end  the  court  will,  by  its  affirmative  decree,  aAvard  to 
the  defendant  whatever  reliefs  may  be  necessary  in  order  to  protect 
and  enforce  those  rights.  This  principle  is  not  confined  to  any 
particular  kind  of  equitable  rights  and  remedies,  but  pervades  the 
entire  equity  jurisprudence,  so  far  as  it  is  concerned  Avith  the 
administration  of  equitable   remedies.^ 

§389.     Illustrations:     The  Wife's  Equity.^—     ,     .     . 

§  390.     Equitable  Estoppel.^— 

§  391.  Usury. — Another  remarkable  application  of  the  principle 
is  seen  in  the  action  of  the  courts  towards  parties  seeking  its  aid 
imder  the  statutes  against  usury.    Wherever  the  statutes  have  made 

'Comstock  V.  Johnson,  40  X.  Y.  615,  H.  &  B.  26,  Rh.  108:  City  of  Chicago  v. 
Union  Stpek  Yards  &  Transit  Co..  164  111.  224.  4.5  N.  E.  430,  35  L.  R.  A.  281; 
Bethea  v.  Bethea,   116   Ala.  265,  22   South.  561. 

*  Shuttleworth  v.  Laycoek.  T  ^'em.  244.  1  Scolt,  264;  Peacock  v.  Evans.  HI 
Ves.  512;  Fanning  v.  Dunham,  5  -Johns,  Ch.  122,  9  Am.  Dec.  283,  1  Scott,  271; 
Price  V.  Stratton    (Fla.)    33   South.   044. 

^See    post.    §     1114. 

SSee    post,    §§    818,    1241. 


179  HE   WIJO    SKJiK.s    j:(^L  ITY    .MUST   DO    EtiUlTY.  §  •i9--3 

usurious  loans  and  obligations  absolutely  void,  if  a  borrower  brings 
a  suit  in  equity  for  tiie  purpose  of  having  a  usurious  bond  or  other 
security  surrendered  up  and  canceled,  the  relief  will  be  granted 
only  upon  condition  that  the  plaintitf  himself  does  equity  by  repay- 
ing to  his  creditor  what  is  justly  and  in  good  faith  due,  that  is, 
the  amount  actually  advanced,  with  lawful  interest;  unless,  indeed, 
the  statute  has  gone  so  far  as  to  expressly  prohibit  the  court  from 
imposing  such  terms  as  the  price  of  its  relief.^  The  same  principle 
lias  been  applied  to  a  lender  seeking  the  aid  of  the  court  to  reform 
a  security  tainted  with  usury.-  The  case  is  entirely  different,  and 
another  maxim  governs  its  decision,  when  the  lender  sues  in  a  court 
of  equity  to  enforce  a  usurious  obligation.  The  borrower  may  set 
up  the  defense  and  defeat  the  suit  without  repaying  any  amount. •' 
The  rule  extends  to  all  cases  where  a  party  seeks  to  have  a  con- 
tract set  aside  and  canceled  on  the  ground  of  its  illegality  in  vio- 
lating the  provisions  of  some  statute;  the  court  will  require  him, 
as  a  condition  to  its  granting  the  relief,  to  pay  what  is  really  due 
on  the  agreement,  unless  the  illegality  is  a  malum  in  se,  or  the  stat- 
ute itself  prevents  the  imposition  of  such  terms.* 

§  392.  Other  Special  Instances. — It  is  also  an  application  of  the 
[)rinciple,  that  where  there  has  been  some  misdescription  of  the 
property  on  the  part  of  the  vendor,  a  court  of  equity  will  not  decree 
a  specific  performance  of  the  contract  at  his  suit,  except  upon  the 
terms  that  he  makes  proper  compensation  for  the  injury  which 
the  defendant  has  sustained  from  the  misdescription.  Indeed, 
it  is  also  by  virtue  of  the  rule,  that  the  decree  is  made  in  all  suits 
for  specific  performance  of  contracts,  the  plaintiff",  whether  pur- 
chaser or  vendor,  being  compelled  to  perform  his  part  of  the  agree- 
ment as  a  condition  to  his  obtaining  relief  against  the  defendant.' 
The  same  is  true  with  respect  to  the  relief  granted  in  suits  for 
redemption  brought  either  b}'  a  mortgagor  or  by  a  subsequent  en- 
cumbrancer.-    ... 


U-'aniiing  v.  Dunham,  5  Johns.  Ch.  122,  142,  143,  144,  9  Am.  Dec.  283,  1 
.Scott  G48;  American  Freehold  L.  &  M.  Co.  v.  «ewell,  !)2  Ala.  1G3,  9  South.  143, 
13  L.  R.  A.  299.  See  Missouri  K.  &  T.  Co.  v.  Krumseig  172  U.  S.  359,  19 
Sup.  Ct.   182;     S.  C.  77   Fed.  32,  23   C.   C.  A.   1. 

-Corby  v.  Bean,  44  Mo.  379. 

'The  niaxinij  He  who  conies  into  a  court  of  equity  must  come  with  clean 
hands,  applies  to  the  plaintiff  in  this  case:     Union  Bank  v.  Bell,  14  Ohio  St.  200. 

'Dean  v.  Robertson,  64  Miss.  195,  1  Soutli.  159;  New  England  M.  S.  Co.  v. 
I^owell.   97   Ala.   483.    12  'South.   5.5.      See,   also,   post,    §937. 

Mlanson  v.    Keating.  4   Hare,   1,  4,  5,   1   Scott  274,  per  VVigram,  V.   C. 

-Levi  V.  Bhxekwell,  35  S.  C.  511,  15  S.  E.  243;  Mack  v.  Hill,  28  Mont.  99, 
72  Pac.  307. 


§  395  EQUITY    (JTKISl'RUDEXCE.  "  180 

§  393.  ...  In  states  Avhere  a  court  of  equity  exercises  a 
jurisdiction  to  set  aside  or  to  restrain  the  collection  of  illegal 
assessments  or  taxes,  the  relief  will  not  be  granted  unless  the 
plaintitf  pays  such  portion  of  the  tax  or  assessment  as  is  lawful 
and  justly  due.^  .  .  .  Some  further  illustrations  may  be  found 
in  the  footnote. - 

§  394.  Is  the  Source  of  Certain  Equitable  Doctrines. — Thus  far 
I  have  discussed  the  principle  in  the  view  taken  of  it  by  the  great 
majority  of  judicial  opinions,  namely,  as  a  universal  rule  guiding 
the  court  of  equity  in  its  administration  of  every  kind  of  relief, 
and  to  be  applied  in  practice  according  to  the  circumstances  of  the 
j)articular  case  before  the  court  for  decision.  In  this  aspect  of  the 
principle  it  is  not  regarded  as  the  source  of  any  special  doc+rine 
of  the  equity  jurisprudence,  nor  as  the  foundation  of  an.v  special 
e([uitable  interest  or  primary  right.  There  is,  however,  an- 
other phase  of  the  principle ;  it  may  be  looked  upon  in  another 
light.  It  is  not  wholly  a  rule  for  the  guidance  of  the  equity  judge 
in  measuring  out  and  apportioning  reliefs  among  litigants.  It  has 
exercised  a  molding  influence  in  the  development  of  important 
liianches  of  the  equit}^  jurisprudence;  certain  doctrines  are  plainly 
derived  from  it  as  their  chief,  though  not  perhaps  their  onl_y, 
source.  The  full  scope  and  effect  of  such  doctrines  can  onl}^  be 
understood  by  a  clear  perception  of  the  relations  which  connect 
them  with  this  their  common  origin.  I  shall  therefore  conclude 
the  diseus.sion  of  the  present  section  by  a  brief  mention  of  the  doc- 
trines which  are  thus,  as  it  seems  to  me,  directly  referable  to  the 
principle  that  he  who  seeks  equity  must  do  ecpity. 

§  395.     Of  Election.'—     .     .     . 

'See  Peoples'  Xat.  Bank  v.  :Mavyp.  101  U.  S.  272,  24  Sup.  Ct.  68;  but  see 
Boals  V.   Baehnian,  201   111.    340,  66  N.  E.  336. 

-  Setting  aside  invalid  tax  deed  of  plaintiff's  land,  only  on  condition  that 
he  refund  all  the  taxes  which  had  been  advanced  or  paid  by  the  party  to  whom 
the  deed  was  given;  Alexander  v.  ?ileriick.  121  111.  GOO,  13  X.  E.  190.  A 
mortgagor  wlio  seeks  to  cancel  a  mortgage  on  his  homestead  as  a  cloud  on  his 
1  itle,  on  the  general  ground  of  defects  in  its  execution  and  acknowledgment, 
must  offer  to  do  equity  by  refunding  the  mortgage  money  with  lawful  interest; 
(Jrider  v.  American  F.  E.  &  :\r.  Co.,  99  Ala.  281,  12  South.  775,  42  Am.  St.  Rep. 
.is.  A  widow  suing  for  dower  must  account  for  the  use,  rent  and  profits  of  the 
land  which  she  has  occupied  in  excess  of  her  third:  McLaughlin  v.  McLaughlin, 
20  N.  J.  Eq.  190.  That  the  maxim  applies  to  an  intervener  in  the  suit,  see 
Charleston  &  >A\  C.  R.  Co.  v.  Hughes,  10.5  (;;a.  1.  70  Am.  St.  Rep.  12.  30  S.  E.  972. 

For  the  important  application  of  1lie  maxim  to  parties  seeking  rescission 
or  cancellation  of  transactions  on  the  ground  of  fraud,  mistake,  etc.,  and  the 
0(pii(able  theory  of  restoring  all  the  jiarties  to  their  original  position,  see  § 
:'10.  For  its  application  to  the  cancellalion  of  deeds,  etc..  of  in.sane  persons, 
see  §  940.  For  its  ap])lication  in  behalf  of  persons  holding  under  defective  title 
who  in  good  faith  have  made  improvements,  see  §  1241,  note. 


181  MUST    COME    INTO    KC^'ITY    WJTli    CLKAN     IIAXDti.  §  307 

§  396.  Of  Marshaling. — The  second  duclrine  whieli  1  shall  notice 
is  that  known  as  tlie  UKU-shitHiig  uf  (>('(  urities. — "If  a  person  who  has 
two  real  estates  mortgages  both  to  one  person,  and  afterwards  only 
one  estate  to  a  second  mortgagee,  the  court,  in  oi-der  to  relieve  tlie 
second  mortgagee,  has  directed  the  first  to  take  his  satisfaction  ont 
of  that  estate  only  which  is  not  in  mortgage  of  the  .second  mort- 
gagee, if  that  is  sufficient  to  satisfy  the  first  mortgage,  in  order  to 
liiake  room  for  the  second  mortgage."^  The  same  rule  applies 
wherever  one  has  any  lien  or  security  on  two  funds,  and  another 
has  a  subsequent  lien  on  only  one  of  them.-  This  doctrine  is 
■  Wainly  referable  to  the  principle.  The  holder  of  the  security  on 
two  funds  is  compelled  to  shape  his  own  remedy,  so  as  to  preserve, 
if  possible,  the  equity  of  the  one  whose  lien  extends  to  but  one 
fund."'  In  fact,  the  whole  theory  with  respect  to  the  marshaling 
of  assets  seems  to  be  derived,  in  part  at  least,  from  the  same  source. 
A  few  other  doctrines  miu'ht.  I  think,  be  specified  as  thus  related 
l)y  a  common  descent :  but  enough  has  already  been  said  to  show 
the  great  importance  of  the  principle.  He  who  seeks  e(iuity  must 
do  equity,  both  as  a  practical  rule  governing  the  administration 
of  remedies,  and  as  the  germ  of  equitable  doctrines. 


SECTION  IV. 
HE    WHO    COMES    INTO    EQUITY    INIUST    COME    WITH    CLEAN    HANDS. 

AXALYSI,S. 

§  307.  General  meaning  of  this  principle. 
§  398.  Is   based   upon    conscience   and    good    faith. 
S  399.  Limitations  upon  it. 
§§  400-403.  Illustrations  of  its  application. 
§  400.  In    specific    performance. 
§  401.  In  eases  of  fraud. 
§  402.  In  eases  of  illegality. 
§  403.  Limitations  in   cases  of   fraud   and   illegality;     parties  not   in   pari 

delicto. 
§   404.  Conclusion. 

§  397.     Its  General  Meaning". — This  maxim  is  sometimes  expressed 

^  See  post,  §  46.5. 

'Lanoy  v.  Duke  of  Athol.  2  Atk.  44fi.  1  Scott.  374.  per  Lord  Hardwicke; 
Dorr  V.  Shaw,  4  Johns.  Ch.   17;    Kendall  v.  New  England  Co.,  13  Conn.  384. 

=  Wyman  v.  Ft.  Dearborn  Nat.  Bank,  54  N.  E.  040.  ISl  111.  279.  H.  &  B. 

^  Boone  v.  Clarke.  129  111.  466.  21  N.  E.  S.^0.  r,  L.  B.  A.  276:  Breed  v.  National 
Bank  of  Auburn.  68  N.  Y.  Suppl.  68,  57  App.  Div.  4G8,  afTirmed,  171  N.  Y. 
648,   63   N.   E.    II 15. 


^  oVS  Ec^uiTY  ji  KisrurDHxci:.  183 

in  the  form,  He  that  hath  coniniitted  iniquity  shall  not  have  equity. 
Like  the  one  described  in  the  preceding  section,  it  is  not,  in  its 
ordinar}^  operation  and  effect,  the  foundation  and  source  of  any 
equitable  estate  or  interest,  nor  of  any  distinctive'  doctrine  of  the 
e((uity  jurisprudence;  it  is  rather  a  universal  rule  guiding  and 
regulating  the  action  of  equity  courts  in  their  interposition  on  be- 
lialf  of  suitors  for  any  and  every  purpose,  and  in  their  administra- 
tion of  any  and  every  species  of  relief.  Kesend)ling  the  former 
maxim  in  this  respect,  it  differs  from  that  principle  in  some  most 
important  and  essential  features.  In  applying  the  maxim.  He  who 
seeks  equity  must  do  eciuity,  as  a  general  rule  regulating  the  action 
of  courts,  it  is"  necessarily  assumed  that  different  equitable  rights 
have  arisen  from  the  same  subject-matter  or  transaction,  some  in 
favor  of  the  plaintiff  and  some  of  the  defendant;  and  the  maxim 
requires  that  the  court  should,  as  the  price  or  condition  of  its 
enforcing  the  plaintiff''s  equity  and  conferring  a  remedy  upon 
him,  compel  him  to  recognize,  admit,  and  provide  for  the  coi-res- 
ponding  equity  of  the  defendant,  and  award  to  him  also  the  proper 
i'elief.  The  maxim  does  not  assume  that  the  plaintiff'  has  iJone  any- 
tiiing  unconscientious  or  inequitable;  much  less  does  it  refir<e  to 
him  all  relief;  on  the  contrar.y,  it  grants  to  him  the  remedy  to 
which  he  is  entitled,  but  upon  condition  that  the  defendant's  c(iuit- 
able  rights  are  protected  by  means  of  the  remedy  to  which  he 
is  entitled.  On  the  other  hand,  the  maxim  now  under  considera- 
;ion.  He  wiio  comes  into  equity  must  come  with  clean  hands,  is 
nmch  more  efficient  and  restrictive  in  its  operation.  It  assumes 
that  the  suitor  asking  the  aid  of  a  court  of  etpiity  has  himself 
been  guilty  of  conduct  in  violation  of  the  fundamental  conceptions 
of  equity  jurisprudence,  and  therefore  refuses  him  all  recognition 
and  relief  with  reference  to  the  subject-matter  or  transaction  in 
question.  It  says  that  whenever  a  party,  who,  as  actor,  seeks  to  set 
the  jttdicial  machinery  in  motion  and  obtain  some  remedy,  has 
violated  conscience,  or  good  faith,  or  other  erptitable  principle,  in 
l:is  ])rior  condttct,  tlien  the  doors  of  the  court  Avill  be  shut  against 
him  in  limine;  the  cottrt  will  i-efttse  to  interfere  on  his  behalf,  to 
acknowledge  his  right,  or  to  award  him  any  remedy.^ 

§  398,  Is  based  upon  Conscience  and  Good  Faith. — The  prin- 
ciple involved  in  this  maxim  is  merely  the  expression  of  one  of 
the  elementary  and  fttndamental  conceptions  of  eqitity  jurispntd- 
t-nce.  We  have  seen  that  in  the  origin  of  the  jurisdiction  the 
theory  was  adopted  that  a  court  of  equity  interposes  only  to  en- 

'  Lewis  V.  Holdreo-o.  ofi  Xcl).  .370.  TH  X.  W.  SOO :  :\Ii(liioan  Pipe  Co.  v» 
Fremont  Ditch,  etc.,  Co.,   Ill   Fed.  284,  40  C.   C.  A.  324. 


IS.'i  MUbT    COME    INTO    KljriTY    WITH    CLEAN    ilANDS.  §  3\)d 

forct  C',^"^  jiequirements  ol'  conscience  and  good  i'aitli  with  respect  to 
matters  lying  outside  of,  or  sometimes  perhaps  opposed  to,  the  law. 
The  action  of  the  court  was,  in  pursuance  of  this  theory,  iu  a  cer- 
tain sense  discretionary;  and  the  terms  ''discretionary"  and  "dis- 
cretion" are  still  occasionally  used  by  modern  equity  judges  while 
speaking  of  their  jurisdiction  and  remedial  functions.  Whatevei- 
may  be  the  strictly  accurate  theory  concerning  the  nature  of 
equitable  interference,  the  principle  was  established  from  the  earli- 
est days,  that  while  the  court  of  chancery  could  interpose  and  com- 
pel a  defendant  to  comply  with  the  dictates  of  conscience  and  good 
faith  with  regard  to  matters  outside  of  the  strict  rules  of  the  law, 
or  even  in  contradiction  to  those  rules,  while  it  could  act  upuii  the 
conscience  of  a  defendant  and  force  him  to  do  right  and  justice,  it 
W(juld  never  thus  interfere  on  behalf  of  a  plaintiff  wiiose  own 
conduct  in  connection  w^ith  the  same  matter  or  transaction  had  been 
unconscientious  or  unjust,  or  marked  by  a  want  of  good  faith,  or 
had  violated  any  of  the  principles  of  equity  and  righteous  dealing 
which  it  is  the  purpose  of  the  jurisdiction  to  sustain.  While  a  court 
of  equity  endeavors  to  promote  and  enforce  justice,  good  faith, 
uprightness,  fairness,  and  conscientiousness  on  the  part  of  the  par- 
ties who  occupy  a  defensive  position  in  judicial  controversies,  it 
no  less  stringently  demands  the  same  from  the  litigant  parties 
who  come  before  it  as  plaintiffs  or  actors  in  such  controversies.  This 
fundamental  principle  is  expressed  in  the  maxim.  He  who  comes 
into  a  court  of  equity  must  come  with  clean  hands;  and  although 
not  the  source  of  any  distinctive  doctrines,  it  furnishes  a  most 
important  and  even  universal  rule  affecting  the  entire  administra- 
tion of  equity  jurisprudence  as  a  system  of  remedies  and  remedial 
rights.^ 

§  399.  Its  Limitations. — Broad  as  the  principle  is  in  its  opera- 
tion, it  must  still  be  taken  with  reasonable  limitations;  it  does  not 
a{)ply  to  every  unconscientious  act  or  inequitable  conduct  on  the 
part  of  plaintiff.  The  maxim,  considered  as  a  general  rule  con- 
trolling the  administration  of  equitable  relief  in  particular  con- 
troversies, is  confined  to  misconduct  in  regard  to,  or  at  all  events 
connected  w4th,  the  matter  in  litigation,  so  that  it  has  in  some 
measure  affected  the  equitable  relations  subsisting  between  the 
tAvo  parties,  and  arising  out  of  the  transaction  -.  it  does  not  extend 
to  any  misconduct,  however  gross,  which  is  unconnected  with  the 
matter  in  litigation,  and  with  Avhich  the  opposite  party  has  no  con- 
cern.    When  a  court  of  equity  is  appealed  to  for  relief  it  will  not 

'  I'.lciiklcy's  Appeal.  (IfJ  Pa.  St.  1S7.  H.  &  15.  31.  Sli.  1 11  ;  Mic-luRan  Pipe  Co.  v. 
FrpiiK.ni  Ditili,  etc.,   Co.,   Ill    Fed.   284,  4!)  C.   C.   A.   324. 


§  400  EQUITY    Jlin.Sl'lU'DKXCi:.  184 

,u()  outside  of  the  subjec-t-iiiatter  of  the  controversy,  cind  make 
its  interference  to  depend  upon  the  character  and  conduct  of  the 
moving  j^arty  in  no  way  affecting  the  equitable  right  which  he 
asserts  against  the  defendant,  or  the  relief  which  he  demands.^ 
§  400.  Illustrations — Specific  Performance. — I  shall  now  give 
some  examples  to  illustrate  the  circumstances  under  which  this 
principle  operates  in  the  administration  of  equitable  relief,  and 
the  manner  in  which  it  is  applied.  The  first  instance  which  I  shall 
mention  is  found  in  the  familiar  doctrine  which  controls  the  equit- 
able remedy  of  the  specific  performance  of  contracts.  A  contract 
may  be  perfectly  valid  and  binding  at  law ;  it  nuiy  be  of  a  class 
which  brings  it  within  the  equitable  jurisdiction,  because  the  legal 
remedy  is  inadequate;  but  if  the  plaintiff's  conduct  in  obtaining 
it.  or  in  acting  under  it,  has  been  unconscientious,  inequitable,  or 
ehai'aeterized  by  bad  faith,  a  court  of  equity  will  refuse  him  the 
remedy  of  a  specific  performance,  and  Avill  leave  him  to  his  legal 
remedy  by  action  for  damages.  It  is  sometimes  said  that  the  rem- 
edy of  specific  performance  rests  with  the  discretion  of  the  court; 
but,  rightl}'  viewed,  this  discretion  consists  mainly  in  applying 
to  the  plaintiff'  the  principle.  He  who  comes  into  a  court  of  ecjuity 
nuTst  come  with  clean  hands,  although  the  remedy,  under  certain 
circumstances,  is  regulated  by  the  principle,  He  who  seeks  equity 
inust  do  equity.  The  doctrine,  thus  applied,  means  that  the  party 
asking  the  aid  of  the  court  must  stand  in  conscientious  relations 
towards  his  adversary;  that  the  transaction  from  which  his  claim 
arises  must  be  fair  and  just,  and  that  the  relief  itself  must  not 
be  harsh  and  oppressive  upon  the  defendant.  B}'  virtue  of  this 
principle,  a  specific  performance  will  always  be  refused  Avhen  the 
plaintiff!  has  obtained  the  agreement  by  sharp  and  unscrupulous 
practices,  by  overreaching,  by  concealment  of  important  facts,  even 
though  not  actually  fraudulent,  by  trickery,  by  taking  undue 
advantage  of  his  position,  or  ])y  any  other  means  which  are  un- 
conscientious; and  when  the  contract  itself  is  unfair,  one-sided, 
unconscionable,  or  affected  by  any  other  such  ine(iuitable  fea- 
ture; and  when  the  specific  enforcement  would  be  op]>ressive  ui)on 
the  defendant,  or  would  prevent  the  enjoyment  of  his  own  rights, 
or  would  in  any  other  manner  work  injustice.^     This   application 

'Lewis's  Appeal,  67  Pa.  St.  IGG:  City  of  Cliicago  v.  Union  Stock  Yards  & 
Transit  Co.,  164  111.  224,  45  N.  E.  43,  .So  L.  R.  A.  281 ;  Brown  v.  .Jacobs  Pharmacy 
Co.,  115  Ga.  429,  41   S.  E.  553,  00  Am.  8t.  Rep.   126,  57  L.  R.  A.  547. 

MVniard  v.  Tayloe.  8  Wall.  557.  565.  1  Ames  Eq.  .Tur.  404.  2  Keener.  1020, 
Sh.  112,  2  Scott  33.  per  Field.  J.;  IVlarWe  Co.  v.  Ripley.  10  Wall.  330.  356.  357, 
Sh.  251;  ]\Iicliii[ran  Pipe  Co.  v.  Fremont  Ditch,  etc..  Co.,  Ill  Fed.  2S4,  40  C.  C.  A. 
324:  Fish  v.  Leser,  60  111.  394,  H.  &  B.  650;  Stone  v.  Pratt,  25  111.  25,  H.  & 
B.   652.  2   Scott   203.     See  post,  §  1405,  notes. 


185  MUST    CO.ME    ]XTO    IXiUITY    WITH     CLEAN    HANDS.  §  401 

of  the  principle,  better  perhaps  than  any  other,  illustrates  its  full 
meaning  and  effect;  for  it  is  assumed  that  the  contract  is  not 
illegal;  that  no  defense  could  be  set  up  against  it  at  law;  and  even 
that  it  possesses  no  features  or  incidents  which  could  authorize 
a  court  of  equity  to  set  it  aside  and  cancel  it.  Specific  perform- 
ance is  refused  simply  because  the  plaintiff  does  not  come  into 
court  with  clean  hands. 

5j  401.  Fraud. — Another  familiar  illustration  of  the  principle 
may  be  found  in  all  cases  where  the  plaintiff's  claim  is  affected 
by  his  own  fraud.  Whatever  be  the  nature  of  the  plaintiff's 
claim  and  of  the  relief  which  he  seeks,  if  his  claim  grows  out  of 
or  depends  upon,  or  is  inseparably  connected  with,  his  own  prior 
fraud,  a  court  of  equity  Avill,  in  general,  deny  him  any  relief,  and 
will  leave  him  to  whatever  remedies  and  defenses  at  law  he  may 
have.^  The  maxim  is  more  frequently  invoked  in  cases  upon  fraud- 
ulent contracts.  If  a  contract  has  been  entered  into  through  fraud, 
or  to  accomplish  anj^  fraudulent  purpose,  a  court  of  equity  will 
not,  at  the  suit  of  one  of  the  fraudulent  parties, — a  particeps  doli, 
— while  the  agreement  is  still  executory,  either  compel  its  execu- 
tion or  decree  its  cancellation,  nor  after  it  has  been  executed,  set  it 
aside,  and  thus  restore  the  plaintiff*  to  the  property  or  other  inter- 
ests which  he  had  fraudulently  transferred.-  Equity  will  leave 
such  parties  in  exactly  the  position  in  which  they  have  placed 
themselves,  refusing  all  afjirniatire  aid  to  either  of  the  fraudulent 
l)articipants.  The  only  equitable  remedies  which  they  can  obtain 
are  purely  defensive.  Upon  the  same  principle,  wherever  one 
party,  in  pursuance  of  a  prior  arrangement,  has  fraudulently  ob- 
tained property  for  the  benefit  of  another,  equity  will  not  aid  the 
fraudulent  beneficiary  by  compelling  a  conveyance  or  transfer 
thereof  to  him;  and  generally,  where  two  or  more  have  entered  into 
a  fraudulent  scheme  for  the  purpose  of  obtaining  property  in  which 
all  are  to  share,  and  the  scheme  has  been  carried  out  so  that  all 
the  results  of  the  fraud  are  in  the  hands  of  one  of  the  parties,  a 

'Overton  v.  Banister,  3  Hare.  50.3,  50G;  Trice  v.  Conistoek,  115  Fed.  7t).5; 
Jileakley's  Appeal,  66  Pa.  St.  187.  H.  &   B.  .31,  Sli.   111. 

-Reynell  v.  Sprye,  1  De  (Jex,  M.  &  (J.  660,  668,  669;  Bartle  v.  Xntt,  4 
Pet.  184,  Sh.  109;  Kirkpatrick  v.  Clarke,  132  111.  342,  22  Ain.  St.  Hei).  .j.31, 
24   X.    E.    71,   8   L.   R.   A.   511. 

One  of  the  most  common  occasions  for  the  enforcement  of  this  rule  arises  in 
cases  where  a  debtor  has  conveyed  or  assigned  or  in  any  manner  transferred 
his  property  for  the  purpose  of  defrandinsr  his  creditors,  and  afterwards  seeks 
to  set  aside  the  transfer  as  against  the  grantee  or  assignee  and  recover  back 
the  ))roperty.  Tlie  door  of  a  court  of  equity  is  always  shut  against  such  a 
claimant.  Pride  v.  Andrews,  51  Ohio  St.  405,  38  N.  E.  84;  Massi  v.  Lavine, 
(.Mich.)    102  X.   W.  665,   1   Scott  286. 


§  405  EQLITY    JUniSI'iaDKXCE.  18G 

court  of  equity  will  nut  interfere  on  behalf  of  the  others  to  aid 
tlieni  in  obtaining  their  shares,  but  will  leave  the  parties  in  the 
[losition  where  they  have  placed  themselves.'' 

<  402.     Illegality.!—     .     .     . 

§  404.  Conclusion. — The  special  rule.s  contained  in  the  foregoing 
paragraphs  will  serve  to  illustrate  the  meaning  and  operation  of 
the  principle,  lie  who  comes  into  a  court  of  equity  must  come  with 
clean  hands;  but  they  by  no  means  exhaust  its  scope  and  effeet. 
It  i.s  not  alone  fraud  or  illegality  which  will  prevent  a  suitor  from 
entering  a  court  of  equity;  any  really  unconscientious  conduct,  con- 
nected with  the  controversy  to  which  he  is  a  party,  will  repel  him 
from  the  forum  wdiose  verv  foundation  is  good  conscience.^ 


SECTION  V. 

EQUALITY    IS    EQUITY. 

AXALYSI.S. 

§  40.5.  Its  ffeneral  iiieaning. 
§S  406-411.  Its  pfl'ects  upon  certain  equitable  doctrines. 
§S   40(1,407.  Of    pro    rata    distribution    an«l    contribution. 

S  408.  Ownershij)    in    conuiion. 

§  409.  Joint  indebtedness:    liability  of  estate  of  deceased  joint  debtor. 

§   410.  [Settlement  of  insolvent  estates:  niarshalinj,'-  of  assets. 

§  411.  Abatement  of  legacies:  apportionment  of  liens:  appointment  un- 
der trust  ])o\\crs:  contribution  anionji  co-sureties  and  co-eon- 
Iractnrs. 

§   412.  Conclusion. 

§  405.  Its  General  Meaning-. — We  have  seen  in  the  opening 
paragraphs  of  the  introductory  chapter  that  the  notion  of  eqtiality 
or  impartiality — aequum — lay  at  the  very  fotindation  of  the  aequitas 
as  conceived  of  by  the  Roman  jurists;  the  same  idea  was,  from  the 
outset,  incorporated  into  the  equity  .iurisprudence  created  by  the 
Engli.sh  court  of  chancery,  and  has  been  perpetuated  in  all  of  its 
doctrines  into  which  the  notion  could  possibly  enter,  until  the 
]«resent  day.  While  the  common  law  looked  at  and  protected  the 
I'ights  of  a  person  as  a  separate  and  distinct  individual,  equity 
rather  regards  aiul  maintains,  as  far  as  possible,  the  riahts  of  all 
who  are  connected  by  an//  common  bond  of  interest  or  of  obligation. 

=*  Bleakley's  Appeal.  66  Pa.  St.  187,  H.  &  P..  31.  Sh.  Ill:  Milliaus  v.  Sally, 
43  S.  C.  318,  21  S.  E.  268.  88.5.  49  Am.  St.  Pep.  834;  LaA^-ton  v.  Este.s,  167 
Mass.    181,   45  X.  E.   90.   57   Am.   St.   Pvcp.   4.50. 

^See    post.     §§     940-942. 

iProtzman's   Api)ea1.    119   Pa.   St.   645,    13   Atl.   483. 


187  EQL  ALITV     IS     IIC^IITY.  §  406 

The  priiit'ii)le,  EqualiU'  is  equity,  or  Equity  delighteth  in  e(iuality, 
is  of  very  wide  and  general  application.  It  is  the  immediate  and 
conceded  source  of  several  important  and  distinctive  doctrines  of 
the  equity  jurisprudence.  But  this  is  not  all.  It  furnishes  a  prac- 
tical rule  for  the  guidance  of  equity  courts  in  their  administration 
of  reliefs,  whenever  they  obtain  jurisdiction  over  a  great  variety 
of  cases,  unless  some  compulsory  dogma  of  the  law  stands  in  the 
v.'ay.  I  shall  briefly  mention  the  important  equitable  doctrines 
which  are  derived  h-om  this  principle,  and  indicate  a  few  of  the 
cases  in  which  it  operates  as  a  rule  controlling  the  administration 
of  reliefs. 

§  406.  Is  the  Source  of  Certain  Equitable  Doctrines — Pro  Rata 
Distribution  and  Contribution. — Wlierever  a  number  of  persons 
had  sei)arate  claims  against  the  same  individual  or  the  same  fund, 
llie  law  generally  gave  certain  classes  of  such  claimants  a  com- 
plete precedence,  even  to  the  exhaustion  of  the  fund  if  necessary, 
over  the  others,  ai-ising  solely  from  the  form  of  their  security;  as, 
for  example,  bond  and  other  specialty  creditors  over  simple  con- 
tract creilitors.  Also,  among  several  persons  having  claims  of  the 
.same  grade  against  a  single  individual  or  fund,  the  one  who  by 
his  superior  activity,  either  by  means  of  action  and  judgment  or 
not,  obtains  payment  of  his  demand  the  first  in  order  of  time,  is 
entitled  at  law  to  the  precedence  thus  acquired  over  the  others, 
even  though  the}^  should  thereby  be  prevented,  in  whole  or  in 
part,  from  procuring  satisfaction.  Conversely,  it  is  a  familiar 
doctrine  of  the  laAV,  that  when  a  creditor  has  a  single  claim  against 
several  persons,  each  of  such  debtors  is  regarded  as  so  completely 
and  individually  liable  that  the  creditor  may  enforce  payment  of 
the  entire  demand  from  any  one  of  the  number.  The  law  will  not 
interfere  with  the  action  of  the  creditor;  it  will  not  compel  him  in 
any  manner  to  obtain  satisfaction  from  all  of  the  debtors,  pari  passu  : 
and  after  one  of  the  number  had  thus  been  obliged  to  pay  the 
A\'hole  amount,  the  ancient  common  law,  prior  to  its  adoption  of 
doctrines  borrowed  from  equity,  failed  to  give  him  any  right  of 
j'ecourse  upon  his  co-debtors  by  means  of  which  the  burden  might 
finally  be  distributed  among  them  all  in  just  proportions.  The 
rules  of  the  modern  law  giving  such  right  of  reimbursement  ai'e 
a  direct  importation  from  the  e<|uity  jurisprudence.  Finally,  the 
common  law,  prior  to  statutory  changes,  exhibited  a  decided  pref- 
<-rence,  in  fact  leaned  very  strongly,  in  favor  of  joint  ownership 
over  ownership  in  common,  and  in  favor  of  a  joint  right  among 
creditors  over  a  several  right,  and  a  joint  lial)ility  among  debtors 
over  a  several  or  joint  and  several  liability,  with  all  the  legal  con- 
.^equences  of  "survivorship,"  and  of  an  extinction  of  the  right  or 


§  408  EQUITY    JUKISriJUDKNCE.  188 

liability  on  the  part  of  ain"  one  of  the  creditors'  or  debtors  who 
dies.  Under  all  these  conditions  of  fact,  equity  proceeded  upon  a 
xevy  ditit'erent  principle,  upon  the  principle  that  equality  is  equity, 
that  the  right  or  burden  should  be  equalized  among  all  the  persons 
entitled  to  participate.  It  must  not  be  understood,  however,  that 
a  court  of  equity  would  always  directly  interfere  with  parties 
under  the  circumstances  above  mentioned,  for  the  purpose  of  carry- 
ing out  the  principle  of  equality;  it  could  not,  for  example,  restrain 
a  creditor  from  prosecuting  his  legal  demand  by  legal  means,  ruerchj 
on  the  ground  that  the  result  Avould  give  him  a  precedence  over 
others;  in  other  words,  the  principle  of  equality  is  equity  was  not 
or  itself  the  source  of  an  ecpiitable  jurisdiction  which  would  not 
ocherwise  have  existed.  The  true  doctrine  is,  that  wherever  a 
court  of  equity,  upon  any  ground  of  equitable  cognizance,  acquires 
jurisdiction  over  a  case  falling  under  the  general  condition  of  fact 
mentioned  above,  it  will  apply  the  principle  of  eciuality  in  deter- 
mining the  collective  rights  and  liabilities  of  all  the  parties. 

!^  407.  Under  the  limitation  last  stated,  that  the  subject-matter 
properly  belongs  to  the  equitable  jurisdiction,  the  following  gen- 
end  principle  may  be  regarded  as  firmly  established  and  of  wide 
application:  Whenever  several  persons  are  all  entitled  to  partici- 
pate in  a  common  fund,  or  are  all  creditors  of  a  common  debtor, 
equity  will  award  a  distribution  of  the  fund,  or  a  satisfaction  of 
the  claims,  in  accordance  with  the  maxim,  Equality  is  equity;  in 
other  words,  if  the  fund  is  not  sutYicient  to  discharge  all  claims 
upon  it  in  full,  or  if  the  debtor  is  insolvent,  equity  will  incline 
to  regard  all  the  demands  as  standing  upon  an  equal  footing,  and 
will  decree  a  pro  rata  distribution  or  payment.  On  the  other  hand, 
whenever  a  common  liability  rests  upon  several  persons  in  favor 
of  a  single  claimant,  equity  will  enforce  such  liability  upon  all  the 
class  in  accoi-dance  with  the  same  maxim.  Equality  is  equity.  It 
will  apply  the  maxim  either  directly,  by  apportioning  the  burden 
ratably  among  all  the  individuals  upon  whom  the  common  liability 
rests,  or  indirectly,  by  giving  a  right  of  contrihution  to  the  member 
of  the  class  from  whom  a  payment  of  the  whole  demand  has  been 
obtained,  and  enabling  him  to  recover  contributory  shares  of  the 
amount  from  the  other  members  of  the  class,  by  which  means  the 
entire  burden  is  finally  adjusted  upon  and  among  them  all.  It 
will  be  easily  seen  upon  examination  that  this  comprehensive  prin- 
ciple of  equity  lies  at  the  foundation  of  several  well-settled  doc- 
tiines  of  the  jurisprudence,  and  that  it  furnishes  the  rule  upon 
wl^ich  a  court  of  equity  proceeds  to  aw^ard  its  relief  in  numerous 
cases  wdiich  do  not  fall  within  either  of  these  special  doctrines. 

^  408,     Ownership    in    Common. — One    of   the    most    remarkable 


189  EQUALITY    IS    EQUITY,  §  408 

illustrations  of  the  principle,  hcinu'  in  diriH-t  antai^'onism  with  a 
specially  favorite  dogma  of  the  old  eoninion  law.  is  seen  in  the 
preference  which  equity  gives  to  ownership  in  eomnion  over  joint 
ownership  of  lands.  It  may  be  stated  as  a  general  proposition 
that  equity  always  leans  in  favor  of  ownership  in  common,  and 
wherever  it  is  possible  to  do  so,  will  hold  an  ownership  to  be  in 
common,  and  thereby  disregard  the  legal  right  of  survivorship, 
although  at  law  the  ownership  would  be  strictly  joint.  It  was 
an  invariable  rule  of  the  common  law  that  when  purchasers  take  a 
conveyance  to  themselves  and  their  heirs,  they  will  be  joint  tenants, 
and  upon  the  death  of  one  of  them  the  estate  will  go  to  the  survivor. 
The  same  rule  prevails  in  equity,  unless  circumstances  exist  fr^m 
which  a  contrary  intention  of  the  parties'  may  be  presumed,  en- 
abling a  court  of  equity  to  disregard  the  legal  rule.^  The  same  is 
true  of  a  joint  contract  to  purchase  land,  made  by  two  or  more 
vendees,  where  they  have  paid  or  agreed  to  pay  the  purchase  price 
in  equal  proportions.  Equity  would  regard  their  right  as  a  joint 
one,  and  upon  the  death  of  one  vendee  would  not  decree  a  convey- 
ance to  the  survivor  and  the  heirs  of  the  deceased  vendee  as  own- 
ers in  common.'  Although  the  legal  rule  Avas  allowed  to  operate 
under  these  special  circumstances,  still,  equity  leans  very  strongly 
against  joint  ownership.  Whenever  circumstances  occur  from 
Avhieh  it  can  reasonably  be  implied  that  a  tenancy  in  common  was 
intended,  a  court  of  equity  will  hold  the  ownership,  to  be  in  com- 
mon, and  will  disregard  the  legal  right  of  survivorship  by  declar- 
ing the  survivors  to  be  trustees  of  the  legal  estate  for  the  represent- 
atives of  the  deceased  ])urchaser  or  owner.  In  pursuance  of  this 
view,  the  doctrine  was  well  settled,  long  previous  to  all  legislation 
on  the  subject,  that  where  two  or  more  purchase  lands  and  advance 
or  agree  to  pay  the  purchase-money  in  unequal  proportions,  this 
makes  them  in  the  nature  of  partners,  and  hoAvever  the  legal  Estate 
may  survive  on  the  death  of  one  of  them,  the  survivor  will  be 
considered  in  equity  as  only  a  trustee  for  the  representatives  of 
the  other,  in  proportion  to  the  sums  advanced  by  each  of  them." 
This  equitable  doctrine  is  always  applied  to  mortgagees.  Where 
money  is  advanced  by  two  or  more  persons,  no  matter  whether 
in  equal  or  unequal  proportions,  and  they  take  a  mortgage  to  them- 
selves jointly,  in  law  their  estate  is  joint,  and  on  the  death  of  one 
the   debt   and  the  security  would   belong  wholly   to   the   survivor. 

'Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  200,  pi.  3,  1  Scott  367:  Rigden  v.  Vallicr, 
3  Atk.  735,  2.  Ves.  Sr.  258;   Harris  v.  Ferguson,   10  8ini.  308. 

=  Lake  v.  Gibson,  1  Eq.  Cas.  Abr.  294,  p.  3,  1  Lead.  Cas.  Eq.,  4tli  Am.  ed., 
2fJ4,  2()8,  1  Sentt  307;  Aveling  v.  Knipo,  10  Ves.  441,  per  8ir  William  Grant, 
M.     II. 

^Eigden   v.   Vallier,   3    Atk.   735,   2    Ves.    Sr.   258. 


§  409  EQUITY    JURISPRUDENCE.  190 

In  equity,  however,  the  interest  of  the  niortgao'ees  is  iu  common, 
and  on  the  death  of  one  the  survivor  is  held  a  trustee  for  the  per- 
sonal representatives  of  the  deceased  mortg-agee.*  These  equitable 
doctrines,  drawing  such  a  distinction  between  conveyances,  con- 
tracts for  purchase,  and  mortgages  at  law  and  in  equity,  were 
established  before  any  statutes  had  changed  the  legal  view,  but 
they  have  become  unnecessary  and  obsolete  iu  the  United  States, 
in  consequence  of  modern  legislation.  This  legislation  throughout 
all  the  states  has  declared  that  a  conveyance  of  land  to  two  or 
more  grantees  shall,  unless  a  contrary  intention  is  clearly  expressed, 
create  an  ownership  in  common,  and  not  a  joint  ownership.  As  the 
original  doctrine  of  equity  is  thus  incorporated  into  the  law  by 
statute,  there  is  no  longer  any  need  of  the  equitable  rule  as  above 
described.  Furthermore,  either  as  an  inference  from  the  statutes, 
or  from  the  gradual  adoption  of  equitable  principles,  the  right  and 
interest  of  two  or  more  vendees  in  a  contract  for  the  purchase 
of  land  is  no  longer  strictly  joint,  even  at  law,  in  a  great  majority 
of  the  states;  that  is,  the  right  and  interest  of  the  heirs  and  rep- 
r'esentatives  of  a  deceased  vendee  are  fully  recognized  and  pro- 
tected. Finally,  by  the  ecjuitable  theory  of  the  mortgage,  which, 
as  has  been  shown,  prevails  in  nearly  all  the  states,  the  interest 
of  the  mortgagee  being  regarded  as  personal  property,  and  not  as- 
an  estate  in  the  land,  the  right  of  two  or  more  mortgagees  is  not 
strictly  joint,  _  when  considered  with  reference  to  third  persons, 
or  even  to  the  mortgagor  himself. 

§  409.  Joint  Liability — Death  of  a  Joint  Debtor. — Another  ad- 
mirable illustration  of  the  principle  that  equality  is  equity  is  shown 
in  the  case,  analogous  to  the  one  last  described,  of  the  mode  in 
which  equity  treats  a  liability  arising  out  of  contract  joint  at  law. 
It  is  one  of  the  oldest  and  most  familiar  doctrines  of  the  law.  that 
when  two  or  more  persons  promise  or  bind  themselves  to  pay  a  sum 
of  money,  or  to  do  any  other  act,  their  o])ligation  and  liability  are 
joint.  It  followed  from  the  legal  conception  of  a  joint  obligation 
that  when  one  of  the  joint  debtors  dies,  the  liability  on  his  part 
and  on  the  part  of  his  estate  ipso  facto  ceases,  and  the  only  obliga- 
tion for  the  entire  debt  rests,  at  law,  upon  the  survivor  or  surviv- 
ors; he  or  they  alone  could  be  sued  at  law  by  the  creditor.^  The 
injustice  Avhich  might  result  from  this  purely  technical  rule  of  the 
law  is  very  apparent.  The  doctrine  of  equity  is  ({uite  diti'erent. 
Presuming  upon  the  reasonable  presumption  that  it  is  the  intention 
of  the  parties  in  every  such  agreement  that  the  creditor  shall  have 
the  several   as  well   as  the   joint   obligation   of  each   debtor  as   a 

*Goochvin  v.  Richanlson.   11   :\Iass.  469;    Kinsley  v.  Abbott,  19  Me.  430,  434. 
'Ex   parte   Kendall,    17    Ves.    525. 


191  EQUALITY    IS    EQUITY.  §  40r> 

security  for  the  payment  or  perfonnauce,  equity  declares,  as  a 
jjeneral  rule,  that  every  contract  merely  joint  at  law  shall  be  ro- 
o-arded,  as  aiiainst  the  debtor  parties,  a  joint  and  several  under- 
taking, creating  a  joint  and  several  obligation.  As  a  consequence 
of  this  equitable  view  of  the  obligation,  the  doctrine  is  settled, 
that  upon  the  death  of  one  of  the  debtors  the  liability  does  not 
remain  upon  the  survivors  alone.  If  the  survivors  or  survivor  are 
insolvent,  or  if  the  creditor  has  exhausted  his  ordinary  legal  rem- 
edies against  them  in  vain,  by  means  of  a  judgment  and  an  execu- 
tion returned  un.satisfied,  then  such  creditor  may  maintain  a  suit 
in  equity  against  the  personal  representatives  of  the  deceased 
debtor,  and  enforce  payment  out  of  his  estate.-  In  England,  the 
doctrine,  as  settled  by  the  modern  decisions  is  still  broader  and 
more  efficient.  The  creditor  is  entitled  to  sue  the  personal  rep- 
resentatives of  the  decea.sed  debtor  in  equity  at  once,  without  at- 
tempting, much  less  exhausting,  any  legal  remedy  against  the  sur- 
vivor. In  other  words,  the  creditor  has  at  all  times  the  option  to 
sue  the  survivor  at  law  or  the  representatives  of  the  deceased  in 
equity,  whether  the  survivors  are  solvent  or  not;  and  this  rule  has 
been  adopted  in  some  of  the  American  states.^  In  certain  of  the 
states,  the  common-law  dogma  concerning  joint  debtors  has  been 
wholly  abrogated.  Special  provisions  of  their  codes  of  procedure, 
or  of  other  statutes,  expressly  authorize  a  legal  action  to  be  brought 
in  the  ilrst  instance  against  the  survivors  and  the  personal  rep- 
resentatives of  the  deceased  joint  debtor  or  even  against  some, 
any,  or  one  of  them,  at  the  option  of  the  creditor  who  sues."*  Tht^re 
is  one  important  exception,  as  established  by  the  courts  in  England 
and  in  many  of  the  United  States,  to  the  doctrine  that  equity  will 
regard  and  treat  a  joint  obligation  arising  from  contract  as  joint 
and  several,  so  as  to  render  the  estate  of  a  deceased  debtor  liable 
to  a  suit  in  equity  brought  by  the  creditor;  and  that  is,  Avhere 
the  deceased  debtor  is  a  surety.  It  is  well  settled,  "that  if  the 
joint  obligor  so  dying  be  a  surety,  not  liable  for  the  debt  irres- 
pective of  the  joint  obligation,  his  estate  is  absolutely  discharged 
both  at  law  and  in  eciuity,  the  survivor  only  being  liable.  In  such 
ease,  where  the  surety  owed  no  debt  outside  and  irrespective  of 
the  joint  obligation,  the  contract  is  the  measure  and  limit  of  his 
obligation.     Pie  signs  a  joint  contract  and  incurs  a  joint  liability, 

=  Pope  V.  Cole,  55  X.  Y.  124.  14  Am.  Rep.  198:  Hunt  v.  Rousmaniere,  8 
Wheat.  212,  213,  1  Pet.  Ifi:  Simpson  v.  Vatiglian,  2  Atk.  31,  2  Scott  542. 

MVilkinson  v.  Tlender^^on.  1  Wylne  &-  K.  582:  Braxton  v.  State.  25  Tnd.  82 
(under  cocle) . 

*Sellon  V.  Braden,  13  Iowa  3()5;  Burgoyne  v.  Ohio  Life  ins.  Co.,  5  Ohio 
St.   5SCj   5S7. 


§  411  EQUITY     JUKISPRUDEXCE.  192 

and  no   other.     Dying-  prior  to   his  co-maker,  the   liability  all   at- 
taches to  the  survivor.''"' 

§  410.  Settlement  of  Insolvent  Estates — Marshaling-  of  Assets. 
— Another  remarkable  and  most  just  application  of  the  principle, 
often  leadino-  to  results  very  different  from  those  produced  by  the 
operation  of  legal  rules,  may  be  seen  in  all  those  instances  where 
a  court  of  equity  acquires  jurisdiction,  from  any  cause,  to  wind  up, 
distribute,  or  settle  an  estate,  property,  or  fund  against  which  there 
are  a  number  of  separate  claimants.  One  example  is  that  of  settling 
the  affairs  of  an  insolvent  partnership,  corporation,  or  individual 
debtor  in  a  creditor's  suit  brought  by  one  on  behalf  of  all  other 
creditors,  Avhere  the  assets  are  not  sufficient  to  satisfy  all  demands 
in  full ;  the  court  always  proceeds  upon  the  principle  that  equality 
is  equity,  and  of  apportioning  the  property  pro  rata  among  all  the 
creditors.^  The  principle  is  carried  to  such  an  extent  in  the  settle- 
ment of  insolvent  partnerships,  and  partnerships  where  one  of  the 
members  has  died,  that  firm  creditors  are  compelled  in  the  first 
instance  to  resort  to  the  firm  assets,  and  creditors  of  the  individual 
partners  to  individual  assets,  before  either  class  can  have  recourse 
to  any  balance  left  remaining  of  the  other  kind  of  fund.  A  second 
example  is  that  of  marshaling  the  assets  in  the  administration  of 
the  estates  of  deceased  persons.  At  the  common  law  certain  classes 
of  creditors  enjoyed  a  precedence  over  others,  and  were  entitled 
to  be  paid  in  full,  even  to  the  exclusion  of  the  inferior  orders,  by 
the  administrator  or  executor  out  of  the  legal  assets  of  the  de- 
cedent's estate,  according  to  their  established  priority  of  right. 
But  a  court  of  equity,  having  obtained  jurisdiction  over  an  ad- 
ministration, regards  all  debts,  in  general,  as  standing  upon  an 
equal  footing,  and  as  entitled  to  payment  pro  rata  out  of  the  equit- 
able assets,  if  the  estate  is  not  sufficient  to  pay  them  all  in  full. 
Avithout  any  reference  to  their  legal  right  of  priority.  In  order  to 
attain  this  result,  and  to  carry  out  the  principle  of  equality  is 
equity  in  administrations,  the  doctrine  of  marshaling  assets  was 
established. 

§411.  Abatement  of  Legacies;^  Apportionment  of  Liens;-  Ap- 
pointment under  Trust  Powers;'-  and  Contribution  among  Co-con- 
tractors and  Co-sureties.^ — 

^  Getty  V.  Binsse,  49  N.  Y.  .385,  388,  .389.  10  Am.  Rep.  370;  Jones  v.  Beach, 
2    DeOex,    M.    &    G.    886. 

Mn  re  Lord  &  Polk  Chemical  Co.,  Del.  Ch.  248,  44  All.  775. 
SSee    post,    §§    1135-1143. 
^^See    post,    §§     1221-1226. 
^See  post,   §   1002. 
*  tSee  post,  §  1418. 


193  EQUAL    EQUITIES^    FIllST    IN    ORDER    OE    TIME.  §  414 


SECTION  VI. 

WHERE    THERE    ARE    EQUAL    EQUITIES,    THE    FIRST    IN    ORDER    OP 
TIME    SHALL    PREVAIL. 

ANALYSIS. 

§  413.  Its    application. 

§  414.  Its  true  meaning;    opinion  in  Rice  v.  Rice. 

I   415.  Its    eft'eot    upon    equitable    doctrines. 

§413.  Its  Application. — The  "equities"  spoken  of  in  this 
maxim  embrace  both  equitable  estates,  interests,  and  primary 
riofhts  of  property,  such  as  the  cestui  que  trust's  estate  in  any 
species  of  trust,  the  mortgagee's  equitable  interest,  equitable  lietis, 
the  interest  of  the  assignee  under  an  equitable  assignment,  and  the 
like,  and  also  the  purely  remedial  rights,  or  rights  to  some  purely 
equitable  remedy,  to  which  the  distinctive  name  "equity"  has 
been  given  by  modern  .I'udges  and  text-writers;  such,  for  example, 
as  the  equitable  right  to  a  reformation.  With  respect  to  "equities" 
considered  in  this  comprehensive  manner,  and  to  many  legal  inter- 
ests, the  maxim,  Qui  prior  est  tempore,  potior  est  jure,  is  of  wide 
and  important  application  both  in  equity  and  at  law. 

§  414.  Its  True  Meaning — Rice  v.  Rice. — The  true  meaning  and 
effect  of  the  principle,  When  there  are  equal  equities,  the  first  in 
order  of  time  shall  prevail,  have  often  been  misunderstood ;  and  its 
correct  signification  cannot  be  better  explained  than  by  employing 
the  exact  language  used  by  a  very  able  English  equity  judge,  in  a 
recent  ease,^  as  follows:  "What  is  the  rule  of  a  court  of  equity 
for  the  determining  the  preference  as  between  persons  having  ad- 
verse equitable  interests?  The  rule  is  sometimes  expressed  in  this 
form.  As, between  persons  having  only  equitable  interests,  qui  prior 
est  tempore,  potior  est  jure.  This  is  an  incorrect  statement  of  the 
rule,  for  that  proposition  is  far  from  being  invariably  true.  In 
fact,  not  only  is  it  not  universally  true  as  between  persons  having 
only  equitable  interests,  but  it  is  not  universally  true  even  where 
their  equitable  interests  are  of  precisely  the  same  nature,  and  in 
ihat  respect  precisely  equal;  as  in  the  common  case  of  two  suc- 
cessive assignments  for  a  valuable  consideration  of  a  reversionary 
interest  in  stock  standing  in  the  names  of  trustees,  where  the  sec- 
ond assignee  has  given  notice   (to  the  trustee)    and  the  first  has 

'Rice  V.   Rice,  2  Drew.   73,  H.   &   B.   23,   1    Scott,   334.     A  grantor  conveyed 

land  without  receiving  liis  purchase-money,  but  the  receipt  of  it  was  indorsee' 

em   the   deed,   and  the  title   deeds   were   delivered  to   the   grantee.     Of   course 

a  vendor's  lien  at  once  arose  as  security  for  the  unpaid  price,  which  was  at 

13 


§414  EQUITY     jriUsrUUDEXCE.  194 

omitted  it.-  Another  form  of  stating  the  rule  is  this,  As  between 
persons  having  only  equitable  interests,  if  tlieir  equities  are  equal, 
(iui  prior  est  tempore,  potior  est  jure.  This  form  of  statiny  the 
rule  is  not  so  obviously  incorrect  as  the  former.  And  yet,  even 
this  enunciation  of  the  rule,  when  accurately  considered,  seems  to 
me  to  involve  a  contradiction.  For  when  we  talk  of  two  persons 
having  ecjual  or  unequal  equities,  in  what  sense  do  we  use  the  term 
'equity!'  For  example,  when  we  say  that  A  has  a  better  equity 
than  B,  what  is  meant  by  that?  It  means  only  that  according  to 
those  principles  of  right  and  justice  which  a  court  of  equity  recog- 
nizes and  acts  upon,  it  will  prefer  A  to  B,  and  will  interfere  to 
enforce  the  rights  of  A  as  against  B ;  and  therefore  it  is  impossible 
(strictly  speaking)  that  two  persons  should  have  equal  equities  ex- 
(;ept  in  a  case  in  which  a  court  of  equity  would  altogether  refuse 
to  lend  its  assistance  to  either  party  as  against  the  other.  If  the 
court  wull  interfere  to  enforce  the  right  of  one  against  the  other 
on  anjr  ground  whatever,  say  on  the  ground  of  priority  of  time^ 
b.ow  can  it  be  said  that  the  equities  of  the  two  are  equal?  i.  e.,  in 
other  words,  how  can  it  be  said  that  the  one  has  no  better  right  to 
call  for  the  interference  of  a  court  of  equity  than  the  other?  To 
lay  down  the  rule,  therefore,  with  perfect  accuracy,  I  think  it 
should  be  stated  in  some  such  form  as  this:  As  between  persons 
having  only  equitable  interests,  if  their  interests  are  in  all  other 
respects  equal,  priority  in  time  gives  the  better  equity;  or.  Qui 
prior  est  tempore,  potior  est  jure.  I  have  made  these  observations, 
jiot,  of  course,  for  the  purpose  of  mere  verbal  criticism  on  the 
enunciation  of  a  rule,  but  in  order  to  ascertain  and  illustrate  the 
real  meaning  of  the  rule  itself.  And  I  think  the  meaning  is  this: 
that  in  a  contest  between  persons  having  only  equitable  interests, 
priority  of  time  is  the  ground  of  preference  last  resorted  to;  i.  e., 
that  a  court  of  equity  will  not  prefer  the  one  to  the  other  on  the 
mere  ground  of  priority  of  time,  until  it  finds,  upon  an  examina- 
tion of  their  relative  merits,  that  there  is  no  other  sufficient  ground 
of  preference  between  them,  or  in  other  words,  that  their  equities 

Ica^t  valid  hetween  tlie  grantor  and  the  grantee,  and  was  prior  to  any  equity 
thereafter  created  l)y  the  grantee.  Tlie  grantee  afterwards  borrowed  money, 
and  to  secure  its  payment  made  an  equitable  mortgage  of  the  land  by  a  deposit 
of  the  title  deeds  with  the  creditor.  Held,  that  as  between  the  vendor's  lien 
and  the  lien  of  the  equitable  mortgage,  the  possession  of  the  title  deeds  liy  the 
grantee,  and  the  receipt  of  the  price  indorsed  on  the  deed  of  conveyance, 
operated  to  make  the  latter  lien  superior  to  the  former,  and  thus  overcame  the 
effect  of  priority.  The  two  equities  were  not  equal.  Tn  liis  opinion  the  vice- 
chancellor  used  the   language  quoted   in   the   text. 

^  Here   the    second   assignee    would    obtain    priority    over    the   first;      See    LoW 
eridge    v.    Cooper,    3    Euss.    30. 


195  Et^LAL    IXiLITlKS,    IIKST    IX    OKUKK    OF    XniE.  §  41.") 

me  in  all  respects  equal;  and  that  if  the  one  has  on  other  grounds 
a  better  ecjuity  than  the  other,  priority  of  time  is  immaterial,  in 
examining  into  the  relative  merits  (or  equities)  of  two  parties  hav- 
ing adverse  equitable  interests,  the  points  to  which  the  court  must 
direct  its  attention  are  obviously  these:  the  nature  and  condition 
of  their  respective  equitable  interests,  the  circumstances  and  man- 
ner of  their  acquisition,  and  the  whole  conduct  of  each  party  with 
respect  thereto.  And  in  examining  into  these  points;  it  must  apply 
the  test,  not  of  any  technical  rule,  or  any  rule  of  partial  applica- 
tion, but  the  same  broad  principles  of  right  and  justice  which  a 
court  of  equity  applies  universally  in  deciding  upon  contested 
rights.  "2 

§  415.  Its  Effect. — It  follows  from  this  explanation  of  the  prin- 
ciple that  when  several  successive  and  conflicting  claims  upou  or 
interests  in  the  same  subject-matter  are  wholly  equitable,  and 
neither  is  accompanied  by  the  legal  estate,  wdiich  is  held  by  some 
tliird  person,  anrl  neither  possesses  any  special  feature  or  incident 
which  would,  according  to  the  settled  doctrines  of  equity,  give  it 
a  precedence  over  the  others  wholly  irrespective  of  the  order  of 
time, — under  these  circumstances"  the  principle  applies,  and  priority 
of  claim  is  determined  b^--  priority  of  time.^  There  are,  however, 
many  features  and  incidents  of  equitable  interests  Avhich  prevent 
the  operation  of  this  rule,  and  which  give  a  subsequent  equity  the 
precedence  over  a  prior  one,  as  wnll  be  fully  shown  in  the  next 
chapter.  The  principle  embodied  in  this  maxim  lies  at  the  founda- 
tion of  the  important  doctrines  concerning  priorities,  notice,  and 
the  rights  of  purcha.sers  in  good  faith  and  for  a  valuable  considera- 
tion, which  so  largely  affect  the  administratiori  of  equity  juris- 
prudence in  England,  though  to  a  less  extent  in  the  United  States, 
and  v/hich  are  discussed  in  the  following  chapter.- 


SECTIOX  VII. 

WHERE    THERE    IS    EQUAL    EQUITY,    THE    LAW    MUST    PREVAIL. 

ANALYSIS. 

§  41G.  Its    a])i)lication. 

§   417.  Its    nieaniiij;    and    pffeots. 

'See,  also,  Phillips  v.  lMiillii)s.  4  DeCex,  F.  &  J.  208.  215,  H.  &  B.  72,  Ames 
Trusts    .3.3L    1     Srolt,    S.^.''..    .5]  1  :    Dufhcr    Watfh-Casp    'SUix.    Co.    v.    Daucrhcrly, 

02  Ohio  St.  580,  57  X.  E.  455. 

'  Brace  v.  Duehe-is  of  :\Iarlhoroiijih.  2  P.  Wms.  401.  1   Scott.  3:10.  350:  Berry  v. 
Mutual    Ins.    Co.,  2  Johns.   Ch.   fiO.S,    1    Scott   .3.31.   Shep.    104;    :Muir  v.    Schenck, 

3  Hill,  228.  .38  Am.  Dec.  G.3.3,  Shep.   10(1.  - 

=  The  text  is  quoted  in  Campbell   v.   Sidwell.   (11    Oliio  St.   170,  55  X.  E.   609. 


§  417  EQUITY    JL'IilttPKUUEXCE.  IDb 

§  416.  Its  Application. — This  maxim  and  the  one  examined  in 
the  last  preceding-  section  must  be  taken  in  connection,  in  order  to 
constitute  the  enunciation  of  a  complete  principle.  The  first  applies 
to  a  certain  condition  of  facts;  the  other  supplements  its  operation 
by  applying  to  additional  facts  by  which  equitable  rights  and 
duties  may  be  affected.  The  two  are  in  fact  counterparts  of  each 
other,  and  taken  together,  the}'  form  the  source  of  the  doctrines, 
in  their  entire  scope,  concerning  priorities,  notice,  and  purchasers 
for  a  valuable  consideration  and  '\\'ithout  notice.  Any  full  examina- 
tion of  these  two  maxims,  and  explanation  of  their  effects,  would, 
of  necessity,  be  a  complete  discussion  of  those  doctrines,  and  will, 
therefore,  not  be  attempted  at  present,  but  will  be  postponed  to 
a  subsequent  chapter. 

§  417.  Its  Meaning  and  Effects. — The  meaning  of  the  maxim  is, 
if  two  persons  have  equal  equitable  claims  upon  or  interests  in 
the  same  subject-matter,  or  in  other  words,  if  each  is  equally  en- 
titled to  the  protection  and  aid  of  a  court  of  ecpiity  with  respect 
of  his  equitable  interest,  and  one  of  them,  in  addition  to  his  equity, 
also  obtains  the  legal  estate  in  the  subject-matter,  then  he  who 
thus  has  the  legal  estate  will  prevail.  This  precedence  of  the  legal 
estate  might  be  worked  out  by  the  court  of  equity  refusing  to 
interfere  at  all,  and  thereby  leaving  the  parties  to  conduct  their 
controversy  in  a  court  of  law,  where  of  course  the  legal  estate  alone 
Avould  be  recognized.^  One  of  the  most  frequent  and  important 
consequences  and  applications  of  this  principle  is  the  doctrine,  that 
when  a  purchaser  of  property  for  a  valuable  consideration,  and 
Yt'ithout  notice  of  a  prior  equitable  right  to  or  interest  in  the  same 
subject-matter,  obtains  the  legal  estate  in  addition  to  his  equitable 
claim,  he  becomes,  in  general,  entitled  to  a  priority  both  in  equity 
and  at  law.- 

In  this  interesting  case  it  Avas  urged  that  the  maxim  should  be  applied  in  a 
certain  class  of  cases  where,  tlioagh  the  equities  are  admittedly  unequal, 
the  usual  rules  of  priority  cannot  be  applied  without  an  apparent  absurdity; 
viz.,  where  lien  A  is  superior  to  lien  B,  lien  B  is  superior  to  lien  C,  but  lien 
C  is  superior  to  lien  A — a  situation  by  no  means  uncommon.  In  the  particular 
case,  lien  A  was  a  grantor's  lien,  lien  B  that  of  a  judgment  against  the  grantee, 
lien  C  that  of  B's  bona  tide  mortgagee.  The  court  held  that  the  maxim 
should  be  confined  to  cases  where  tlie  liens  are  equitable  and  are  equal  in  all 
respects  save  time;  and,  the  property  being  insufficient  to  pay  the  mortgage  in 
full,  ordered  sufficient  of  the  proceeds  paid  to  discharge  the  judgment,  and 
the  rest  applied  upon  the  mortgage.  The  second  lien  was  thus  given  a  priority 
which  it  would  not  have  had  save  for  the  existence  of  the  tliird  lien. 

>Thorndike  v.  Hunt.  3  DeCex  &  J.  5fi.'?,  570.  .571:  Fitzsimmons  v.  Ogden, 
7  Cranch.  2,  IS. 

==  Basset   v.   Nosworthv,    Cas.   t.    Finch,    102,   2    Lead.    Cas.    Eq.    1,   and   notes. 


197  E(iLlTY    AIDS    Tlii:    ViUlLANT.  §  419 


SECTION  VIII. 

EQUITY     AIDS     THE     VIGILANT,     NOT     THOSE     WHO     SLUMBER     ON 

THEIR   RIGHTS. 

ANALYSIS. 

§  418.  Its  iiieanini^;     is  a  rule  coiitiolling  the  ailministration  of  remedies. 
§  419.   Its    application     and     effects. 

§418.  Its  Meaning;  Is  a  Rule  Controlling  the  Administration 
of  Remedies. — The  principle  embodied  in  this  maxim,  the  oritjcinal 
form  of  which  is,  Viuilantibus  non  dormientibus  aeqiiitas  snbvenit, 
operates  throug'hoiit  the  entire  remedial  portion  of  equity  .niris- 
dietion,  but  rather  as  furnishing  a  most  important  rule  controlling 
and  restraining-  the  courts  in  the  administration  of  all  kinds  of 
reliefs,  than  as  being  the  source  of  any  particular  and  distinctive 
doctrines  of  the  jurisprudence.  Indeed,  in  some  of  its  applica- 
tions it  may  properly  be  regarded  as  a  special  form  of  the  yet 
more  general  principle,  lie  who  seeks  equity  must  do  equity.^  The 
principle  thus  used  as  a  practical  rule  controlling  and  restricting 
the  award  of  reliefs  is  designed  to  promote  diligence  on  the  part 
of  suitors,  to  discourage  laches  by  making  it  a  bar  to  relief,  and  to 
prevent  the  enforcement  of  stale  demands  of  all  kinds,  wholly  inde- 
pendent of  any  statutory  periods  of  limitation.  It  is  invoked  for 
this  purpose  in  suits  for  injunction,  suits  to  obtain  remedy  against 
fraud,  and  in  all  classes  of  cases,  except  perhaps  those  brought 
to  enforce  a  trust  against  an  express  trustee.^ 

§  419.  Its  Application  and  Effects. — The  scope  and  effect  of  the 
general  principle  as  a  rule  for  the  administration  of  reliefs  ir- 
respective of  any  statutory  limitations  was  stated  by  an  eminent 
English  chancellor  in  the  following  language:     "A  court  of  equity, 

1  Scott,  340,  498;  LeNeve  v.  LeNeve,  And).  430,  2  Lead  Cas.  Kq.,  4th  Am.  ed. 
109,  and  notes,  1  Scott,  536;  Phillips  v.  Phillips,  4  De  Gex,  F.  &  J.  208,  1 
Scott,  333,  51  r,  H.  &  B.  72,  Ames  Trusts  331;  Economy  Savings  Bank  v. 
Gordon,  90  Aid.  486,  45  Atl.  176,  48  L.  R.  A.  63,  H.  &  B.  19. 

UJreat  Western  R'y  v.  Oxford,  etc.,  R'y.  3  De  Gex,  M.  &  G.  341,  359,  per 
Turner,  L.  J.:  "The  jurisdiction  to  interfere  is  purely  equitable,  and  it  must 
be  governed  by  equitable  principles.  One  of  the  first  of  those  principles  is, 
that  parties  coming  into  equity  must  do  equity:  and  this  principle  more 
than  reaches  to  cases  of  this  description.  If  parties  cannot  come  into  equity 
without  submitting  to  do  equity,  a  fortiori  they  cannot  come  for  the  summary 
interference  of  the  court  when  tiieir  conduct  before  coming  has  been  such  as 
to    prevent   equity   being   done." 

=  Great  Western  R'y  v.  Oxford,  etc.,  R'y,  3  DeGex,  M.  &  G.  341  •  The  text  is 
cited  in  Jackson  v.  Lvnch,  129  111.  72,  21  N,  E.  580,  22  N.  E.  246. 


§119  EQUITY    JLKJSI'I.M  1)1  NCi:.  VJS 

Avliieli  is  never  active  in  relief  against  eonseience  or  public  con- 
venience, lias  always  refused  its  aid  to  stale  demands,  where  the 
party  has  slept  upon  his  rights,  and  ac(iuiesced  for  a  great  length 
of  time.  Nothing  can  call  forth  this  court  into  activity  but  con- 
science,  good  faith,  and  reasonable  diligence.''^     The  principle   has 

^Per  Lord  Canuk'n  in  Smith  v.  Clay,  3  Brown  Cli.  038,  1  Scott,  379;  and 
see  also  Lacon  v.  Brigj^s,  3  Atk.  105,  2  Scott,  754  (suit  by  an  executor  to  re- 
cover a  debt  due  his  testator,  after  seventeen  years'  delay,  dismissed)  ;  Ellison 
V.  Moffatt,  1  Johns.  Ch.  46,  1  Scott,  387,  2  Scott,  758,  Shep.  118  (suit  for  an 
account  of  transactions  ended  twenty-six  years  before  the  bill  was  filed 
dismissed) . 

There  ap|)ears  to  be  a  fundamental  difference  of  opinion  as  to  the  ulti- 
mate reasons  in  ethics  or  in  public  policy  upon  which  the  doctrine  of 
laches  should  l)e  based.  Probably  the  majority  of  recent  cases  are  in  accord 
with  the  followino-  statement:  "Laches,  in  legal  significance,  is  not  mere  delay, 
but  delay  that  works  a  disadvantage  to  another.  So  long  as  parties  are  in  the 
same  condition,  it  matters  little  whether  one  presses  a  right  promptly  or  slowly, 
within  limits  allowed  by  law;  but  when,  knowing  his  rights,  he  takes  no  step  to 
enforce  them  until  the  condition  of  the  other  party  has,  in  good  faith,  become 
so  changed  tliat  he  can  not  be  restored  to  his  former  state,  if  the  right  be  then 
enforced,  delay  becomes  inequitable,  and  operates  as  estoppel  against  the 
assertion  of  the  right.  The  disadvantage  may  come  from  loss  of  evidence, 
change  of  title,  intervention  of  equities,  and  other  causes;  but  when  a  court 
sees  negligence  on  one  side  and  injury  therefrom  on  the  other  it  is  a  ground 
for  denial  of  relief."  Chase  v.  Chase,  20  R.  1.  202,  37  Atl.  804,  by  Stinness, 
C.  J.  See,  also,  Lindsay  Peti-oleum  Co.  v.  llurd,  L.  R.  5  P.  C.  221,  per 
Lord  Selborne;  Wilson  v.  Wilson,  41  Oreg.  4.")'.),  (U)  Pac.  923;  Citizens'  Nat. 
Bank  of  Judy,  140  liul.  322,  43  N.  E.  259,  3  Keener  433;  Pom.  Eq.  Rem. 
§21,  and  quotations.  Thus,  relief  is  often  denied  where,  owing  to  the  delay 
the  defendant  has  spent  large  sums  in  the  improvement  of  the  property; 
Gibson  v.  Herriott,  55  Ark.  85,  29  Am.  St.  Rep.  17,  17  S.  W.  589:  or  where, 
because  of  the  delay  important  evidence  on  the  defendant's  behalf  has  been  lost. 
as  by  the  death  or  incapacity  of  his  witnesses;  see  Baker  v.  Cunningham,  102 
Mo.  134,  85  Am.  St.  Rep.  490,  02  S.  W.  445:  or  where  the  "memories  of  those 
who  had  knowledge  of  the  material  facts  have  become  faded  and  weakened 
by  time";  Lutjen  v.  Lutjen,  04  N.  J.  Eq.  773,  53  Atl.  (525.  The  principle 
stated  above,  in  Chase  v.  Chase,  supra,  api)ears  to  be  at  variance  with  a 
long  series  of  cases  in  the  feder-al  courts,  which  lay  stress  upon  the  circumstance 
that  the  property  which  is  the  subject-matter  of  the  litigation  has  greatly 
risen  in  value  since  the  complainant's  cause  of  action  accrued;  and  base  the 
doctrine  of  laches  not  so  much  on  the  unfairness  of  the  complainant's  conduct 
as  on  general  motives  of  piddic  policy;  see  Oil  Co.  v.  Marbury.  91  U.  S. 
592.  23  L.  ed.  331,  Shep.  119:  Xaddo  v.  Bardon.  51  Fed.  493.  2  C.  C.  A.  33.5, 
4  I'.  S.  App.  042;    Pom.  Eq.  Rem.   §23.  quotations  and  note. 

That  the  doctrine  of  laches  does  not  apply  where  an  injunction  is  sought  in 
support  of  a  strict  legal  right,  see  post,  §  817:  Galway  v.  Met.  El.  R.  Co., 
128  N.  Y.  132,  28  N.  E.  479,  13  L.  E.  A.  788,  1  Ames  Eq.  Jur.  601,  1  Keener, 
822;    Ide  v.  Trorlicht  Co..  115  Fed.   137.   148,  1   Ames  Eq.  Jur.  042. 

As  to  excuses  for  laches,  see  Pom.  Eq.  Rem.  §§  20-30:  party's  ignorance 
of  his  rights;  Hall  v.  Otterson.  52  X.  J.  Eq.  522.  28  Atl.  907,  3  Keener  401, 
2  Scott.  035:  Binwiddie  v.  Self.  145  111.  290.  33  X.  E.  892.  3  Keener.  137  (de- 
lay of  twenty  years  in  suing  to  reform  a  deed  due  to  advice  of  reputable  attorney. 


l^n)  Eyurrv    AIDS   -iiu:   nicij.axt.  §41!) 

ill  fact  two  aspects,  one  of  them  wholly  iiidepeiKk'nl  of  any  statu- 
tiity  limitation,  and  the  other  with  reference  to  sucii  statute.  In 
the  earlier  forms  of  the  statute  of  limitations,  the  provisions  wore, 
in  express  terms,  confined  to  actions  at  law;  and  yet  courts  oF 
equity,  proeeedin<>'  upon  the  analogy  of  these  enactments  in  most 
.■^uits  to  enforce  equitable  titles  to  real  estate  and  equitable  per- 
sonal claims,  applied  the  statutory  periods.-  In  certain  kinds  of 
suits,  however,  especially  those  brought  against  trustees  to  en- 
Force  express  trusts,  the  analogy  of  the  statute  was  not  followed.^ 
The  modern  forms  of  these  statutes,  in  the  American  states,  gen- 
erally declare,  in  express  terms,  that  the  periods  of  limitation  shnll 
Apply  to  all  equitable  suits  as  well  as  to  legal  actions.  This  legis- 
lation has  not,  however,  abrogated  the  principle  under  considera- 
iion;  all  cases  not  falling  within  the  scope  of  the  statutory  limita- 
tions would  still  be  controlled  by  it.'* 

tliat  the  deed  correctly  expressed  the  grantor's  intention);  post,  §917;  but  see 
P.adger  v.  Badger,  2  Wall.  87,  95.  17  L.  ed.  836,  2  Scott,  766  (complainant 
must  show  liow  he  came  to  be  so  long  ignorant  of  his  rights).  A  party  in 
possession  of  land  who  resorts  to  a  court  of  equity  to  settle  a  question  of  title 
is  not  chargeable  with  laches,  no  matter  how  long  his  delay;  he  is  at  liberty 
to  wait  until  his  title  is  attacked  before  he  is  obliged  to  act;  Simmons 
Creek  Coal  Co.  v.  Doran,  142  U.  S.  417.  12  Sup.  Ct.  2.19,  35  L.  ed.  1063.  It  has 
been  held  that  the  plaintiff's  poverty  is  not  a  sufficient  excuse  for  his  laches; 
^■addo  V.  Bardon,  51  Fed.  493,  2  C.  C.  A.  335,  4  U.  S.  App.  642. 

"That  a  court  of  equity  will  usually  act  or  refuse  to  act  in  analogy  to  the 
statute  of  limitations  relating  to  actions  at  law  of  like  character,  but  is  not 
hound  by  the  analogy  of  the  statute  where  extraordinary  circumstances  exist, 
see  Kelley  v.  Boettcher,  85  Fed.  55,  62.  29  C.  C.  A.  14.  21,  56  U.  S.  App.  363, 
383;  Pom.  Eq.  Rem.  §  20:  Stevens  v.  Grand  Central  Min.  Co.,  C.  C.  A.  133 
Fed.    28. 

^  In  cases  of  express  trust,  neither  the  statute  of  limitations  nor  laches 
is  a  defense  to  a  suit  bj'  t1ie  cestui  que  trust,  unless  there  has  been  a  re— 
pmliation  or  breach  of  the  trust  brought  home  to  the  actual  knowledge  of  the 
cestui  que  trust:  New  Orleans  v.  Warner,  175  I'.  S.  120,  130,  20  Sup.  Ct. 
44,  44  L.  ed.  96:  Hovey  v.  Bradbury.  112  Cal.  620.  44  Pac.  1077. 

"Where  the  period  of  limitation  of  equitable  actions  is  fixed  by  express 
statute,  the  court  may  still  deny  relief  for  unreasonable  delay  (according  to 
the  weight  of  authority),  although  the  statutory  period  has  not  elapsed;  Cal- 
houn V.  Millard,  121  N.  V.  69.  8  L.  R.  A.  248.  24  N.  E.  27,  1  Scott  388; 
Patterson  v.  tlewitt,  195  U.  S.  309,  25  Sup.  Ct.  35,  49  L.  ed. 


§  423  EQUITY    JURISPliUDENCE.  200 


SECTION  IX. 
EQUITY    IMPUTES    AN    INTENTION     TO     FULFILL    AN     OBLIGATION. 

ANALYSIS. 

§  420.  Its   meaning  and   application. 
§§   421,  422.  Is  the  source  of  certain  equitable  doctrines. 
§  421.  Performance   of  covenants. 
§  422.  Trust  resulting  from  acts  of  a  trustee. 

§  420.  Its  Meaning  and  Application. — This  principle  is  the  state- 
ment of  a  general  presumption  npon  wliidi  a  court  of  equity  acts. 
It  means  that  wherever  a  duty  rests  upon  an  individual,  in  the 
absence  of  all  evidence  to  the  contrary,  it  shall  he  presumed  that 
he  intended  to  do  right,  rather  than  wrong;  to  act  conscientiously, 
rather  than  with  bad  faith ;  to  perform  his  duty,  rather  than  to 
violate  it.  The  principle  is  applied  in  those  ca.ses  Avhere  a  court 
of  equity  is  called  upon  to  determine  whether  an  equitable  estate 
or  interest  in  certain  subject-matter  belongs  to  A,  in  pursuance 
of  an  obligation  which  rested  upon  B,  although  B,  in  ae(|uiring 
the  subject-matter,  has  not  expressed  or  indicated  in  any  manner 
an  intention  on  his  part  of  performing  such  obligation;  that  is,  he 
did  not  acquire  the  subject-matter  for  the  avowed  purpose  of  ful- 
filling his  duty.  Notwithstanding  the  absence  of  such  avowed 
intention,  a  court  of  equity  may  proceed  upon  the  presumption 
that  B  did  intend  to  perform  his  duty;  may  hold  that  the  sub- 
ject-matter was  acquired  with  that  design,  and  that  in  consequence 
of  such  purpose  an  equitable  estate  in  it  belongs  to  A. 

§421.  Is  the  Source  of  Certain  Equitable  Doctrines:  Perform- 
ance of  Covenants.^ — 

§  422.     Trust  Resulting  from  Acts  of  a  Trustee.^ — 


SECTION  X. 
EQUITY    WILL    NOT    SUFFER    A    WRONG    WITHOUT    A    REMEDY. 

ANALYSIS. 

§  423.  Its    general    meaning    and    effects. 
§  424.  Limitations    upon    it. 

§  423.     Its  General  Meaning. — This  principle,  which  is'  the  some- 
what restricted  application  to  the  equity  jurisprudence  of  the  more 

*  See    post,    §     579. 
»See  post,   §    1049. 


201  WILL    NOT    SLl-lEU    WKONG    WITHOUT    UKMEDV.  §  i'i^ 

coiiii>reh('nsive  legal  maxim,  L'bi  jus  ibi  remedium, — wherever  a 
legal  right  has  been  iufriuged,  a  remedy  will  be  given, — is  the 
source  of  the  entire  equitable  jurisdiction,  exclusive,  concurrent, 
and  auxiliary.  A  full  treatment  of  it,  including  an  explanation  of 
its  scope  and  meaning,  with  its  various  applications  and  illustra- 
ti(ms,  would  simply  be  a  restatement  of  all  the  doctrines  and  rules 
concerning  jurisdiction  which  have  already  been  discussed  in  the 
first  part  of  this  work.  Xo  such  unnecessary  repetition  will  be  at- 
tempted. It  is  enouo'h  that  the  principle  finds  its  development  in 
ihe  M-hole  ])()dy  of  doctrines  and  rules  which  define  and  regulate 
tlie  equitable  jurisdiction  as  distinguished  from  the  jurisdiction 
at  law. 

§  424.  Its  Limitations. — There  are.  however,  certain  important 
limitations  upon  the  generality  of  the  maxim  which  may  properly 
be  stated  here,  although  they  have  all  been  referred  to  in  the  In- 
troductory Chapter,  where  the  nature  of  equity  is  described,  or  in 
the  chapters  of  Part  First.  Avhere  the  doctrines  concerning  the 
exclusive  and  concurrent  jurisdiction  are  explained.  The  first  of 
these  limitations  is.  that  equity  cannot  interfere  to  give  any  rem- 
edy, unless  the  richt  in  question,  the  invasion  of  which  constitutes 
the  wrong  complained  of.  is  one  which  comes  within  the  scope  of 
juridical  action,  of  juviflunJ  events,  rights,  and  duties.  The  right 
must  belong  to  the  purvieAv  of  the  municipal  law, — must  be  one 
which  the  municipal  law.  through  some  of  its  departments,  recog- 
nizes, maintains,  and  protects.  E(|uity  does  not  attempt,  any  more 
than  the  law,  to  deal  with  obligations  and  corresponding  rights 
which  are  'jriirehj  moral,  which  properly  and  exclusively  belong  to 
the  tribunal  of  conscience.^     The  second  limitation  is.  that  equity 

*  It  is  upon  tliis  ground  that  where  a  riglit,  undoubtedly  belonging  to  the 
domain  of  tlie  nuniicipal  law,  is  strictly  legal,  equity  will  not  intefere  merely 
because,  under  the  particular  circumstances  of  any  case,  every  legal  means 
ovfl  insfriiiueiil  of  ohtaininri  relief  has  been  tried  and  exhausted  withoiit 
avail.  It  is  plain  that  if  equity  should  interfere  in  any  such  case,  it  could 
only  be  on  the  ground  that  the  party  had  a  moral  right;  that  he  was  morally 
entitled  to  redress;  because  on  the  assumption,  the  right,  being  strictly  legal, 
comes  within  no  recognized  head  of  the  equitable  jurisdiction,  and  the  only 
possible  reason  for  interference  by  a  court  of  equity  would  be  that,  the  legal 
remedies  proving  absolutely  fruitless,  and  the  party  having  no  other  means 
of  redress,  he  has  a  claim  upon  a  court  of  equity  based  upon  the  intrinsic 
righteousness  of  his  demand.  To  such  a  purely  moral  claim  equity  does  not 
and  cannot  respond.  See  Finnegan  v.  Fernandina,  15  Fla.  379,  21  Am.  Rep. 
292;  Rees  v.  City  of  Watertown,  1!)  Wall.  121,  H.  &  B.  5.  Sh.  53.  1  Scott.  200. 
In  Rees  v.  Watertown,  a  holder  of  bonds  issued  by  the  city  alleged  in  his  bill  that 
he  had  obtained  judgment  thereon  against  the  city,  and  had  also  obtained  a  writ 
of  mandamus  to  compel  the  city  odicers  to  raise  and  apply  funds  to  satisfy  the 
judgment,  but  had  wholly  failed  of  f)I)taining  any  redress.  He  ])r;iyed  that  the 
taxable  property  of  tlie  citizens,  whicli  he  claimed  was  a  fund  for  the  payment 


§  424  EQUITY    JUKISl'KUDENCK.  202 

does  not  interfere  to  remedy  'any  wrong  where  the  right  and  the 
remedy,  assuming  that  the  right  falls  within  the  purview  of  the 
municipal  law,  both  completely  belong  to  the  domain  of  the  law. 
In  order  that  the  principle  may  applj-,  one  of  three  facts  must 
exist,  viz.,  either, — 1.  The  right  itself  must  be  one  not  recognized 
as  existing  by  the  law;  or  2.  The  right  existing  at  the  law,  the 
remedy  must  be  one  which  the  law  cannot  or  does  not  administer 
at  all;  or  3.  The  right  existing  at  the  law,  and  the  remedy  being 
one  which  the  law  gives,  the  remedy  as  administered  hy  the  law  must 
he  inadequate,  incomplete,  or  uncertain.  Of  these  three  alterna- 
tives, the  first  and  second  denote  the  exclusive  jurisdiction  of 
ecjuity;  the  third,  the  concurrent  jurisdiction.  The  third  limitation 
upon  the  principle  is,  that  it  does  not  apply  where  a  party,  whose 
case  would  otherwise  come  within  one  of  the  three  alternatives 
above  mentioned,  has  destroyed  or  lost  or  waived  his  right  to  an 
equitable  remedy  by  his  own  act  or  laches.  With  these  limitations 
upon  its  operation,  the  principle  has  been  developed  into  the  vast 
range  of  the  equitable  jurisdiction,  which,  considered  in  its  en- 
tirety, gives, — 1.  Legal  remedies  for  the  violation  of  legal  rights 
in  a  more  certain,  complete,  and  adequate  manner  than  the  laAV  can 
give;  2.  Equitable  remedies  for  the  violation  of  legal  rights,  which 
the  law  has  no  power  to  give  with  its  means  of  procedure;-  and  8. 
Remedies,  either  equitable  or  legal  in  their  nature  or  form,  for  the 
violation  of  rights  of  which  the  law  takes  no  cognizance,  rights  which 
the  law  does  not  recognize  as  existing,  and  which  it  either  cannot 
or  does  not  protect  and  maintain. 

of  municipal  debts,  might  be  subjected  to  the  payment  of  his  judgment,  and 
tliat  the  marshal  miglit  be  empowered  to  seize  and  sell  so  much  of  such  property 
as  should  be  necessary  for  that  purpose.  The  court  refused  relief  on  tlie  ground 
that  the  demand  was  wholly  a  legal  one.  and  the  proper  remedy  was  by  man- 
damus, and  the  mere  fact  that  the  mandamus  had  failed  under  the  particular 
circumstances  of  this  case  did  not  give  a  court  of  equity  any  jurisdiction. 
The  court  said  a  court  of  equity  "cannot  assume  control  over  that  large  class 
of  obligations  called  imperfect  obligations,  resting  upon  conscience  and  moral 
duty  only,  unconnected  with  legal  obligations."  The  decisions  in  the  other 
cases  above  cited  are  to  the  same  eflect.  Tliis  paragraph  of  the  text  is  cited 
in  Harrigan  v.  Gilchrist   (Wis.),  99  N.  W.  909,  9.S3. 

=  It  has  been  laid  down,  as  a  principle  of  jurisdiction,  that  equity  will  always, 
give  a  remedy  in  this  class  of  cases;  see  Gavin  v.  Curtin,  171  111.  C40,  49  N.  E. 
523,    40    L.    R.    A.    776. 


;303  EqilTY    l-OLLONVa    THE    LAW.  §  425 

SECTION  xr. 

EQUITY    F(3LL()\\S    THE    LAW. 

ANALYSIS. 

§§  425,426.  Twofold    nieaniiij;    of    tlu>    principle. 

§  425.  First,  in  obeying  the  law:  Heard  v.  Stainford,  per  Lord  Chan- 
cellor Talbot. 

§  426.  Second,  in  applying  certain  legal  rules  to  equitable  estates;  Cow- 
per  V.  Cowper,  per  Sir  J.  Jekyll,  M.  R. 

§   427.  Operates    A\ithin    very    narrow    limits. 

§  425.     Twofold    Meaning"— First.     In    Obeying    the    Law.— This 

maxim  in  its  Latin  form,  Aectnitas  seqiiitur  le.yem,  was  frequently 
(jiioted  by  the  earlier  chancellors  before  the  extent  of  the  equitable 
jiii'isdiction  had  been  fully  determined,  and  an  importance,  even  a 
.supreme  and  controlling"  efficac}',  has  been  attributed  to  it  by 
some  writers  which  it  does  not  and  never  did  possess.  So  far  as  it 
can  truly  be  called  a  general  principle,  giiiding  and  regulating 
the  action  of  equity  courts,  its  meaning  and  effect  are  now  settled 
^vithin  -well-defined  and  n'hrrow^  limits'.  As  a  practical  rule,  and  not 
a  mere  verbal  theory,  it  is  Mdiolly  restrictive  in  its  operation,  and 
its  only  object  is  to  keep  the  jurisdiction  of  equity  from  overstep- 
jiing  the  boundaries  which  have  been  established  by  the  prior 
cour.se  of  adjudication.  With  this  respect  the  maxim  has  a  double 
import  and  operation :  First.  Equity  follows  the  law,  in  the  sense 
of  obeying  it,  conforming  to  its  general  rules  and  policy,  whether 
contained  in  the  common  or  in  the  statute  laAV.  This-  meaning  of 
the  principle  was  very  clearly  stated  by  Lord  Chancellor  Talbot 
in  the  following  passage:  "There  are  instances,  indeed,  in  which 
a  court  of  equitj^  gives  a  remedy,  where  the  law  gives  none;  but 
Avhere  a  particular  remedy  is  given  by  the  law,  and  that  remedy 
bounded  and  circumscribed  by  particular  rules,  it  would  be  very 
improper  for  this  court  to  take  it  up  -where  the  law  leaves  it,  and 
to  extend  it  further  than  the  law  allows."^    It  should  be  observed, 

^  Heard  v.  Stamford,  Cas.  t.  Talb.  173,  1  Scott  293.  In  this  case  the  chan- 
cellor was  asked  to  disregard  a  well-settled  doctrine  of  the  conunon-law.  By 
the  then  existing  law,  if  a  man  married  he  at  once  became  personally  liable 
for  all  his  wife's  antenuptial  debts;  but  this  liability  ceased  upon  the  wife's 
death.  If  the  creditor  had  not  recovered  judgment  at  the  time  the  wife  died 
he  was  remediless,  no  matter  how  large  a  fortune  the  wife  may  have  brought 
to  and  left  with  her  husband.  This  rule  was  grossly  unjust  in  both  of  its 
branches.  Defendant's  wife  was  indebted  at  the  time  of  the  marriage,  and 
bi-ought  her  husband  a  large  fortune,  but  died  soon  after.  One  of  her  credi- 
tors brought  this  suit  against  the  husband,  urging  that  lie  should  be  held 
liable  in  equity,  under  the  circumstances.  The  chancelloi-  liild  Ihat  he  was  not 
liable,  and  lefused  to  decree  against  a  settled  rule  of  tJie  law.     See  in  general. 


^426  EQl'ITY    JUiaSriJUDEXCE.  L'O-t 

liovvevei",  that  equity  had  not,  in  developing  its  jurisdietion,  in- 
v'aded  the  particular  doctrine  of  the  common  law  which  was  in- 
volved in  this'  case ;  but  it  had  certainly  disregarded  other  rules 
as  positive  and  well  settled,  in  its  previous  course  of  decision. 

§  426.  Secondly.  In  Applying  Legal  Rules  to  Equitable  Es- 
tates.— Equity  follows  the  law  in  the  sense  of  applying  to  equitable 
estates  and  interests  some  of  the  same  rules  by  which  at  common 
law  legal  estates  and  interests  of  a  similar  kind  are  governed. 
Equity,  having  by  the  exercise  of  its  creative  power  called  into 
existence  the  system  of  equitable  estates,  determined  that  these 
estates  should  partake,  to  a  certain  extent,  of  the  quality  of  the 
corresponding  legal  estates.  Thus  a  use  in  fee  was  held  to  descend 
according  to  the  same  rules  as  a  legal  estate  in  fee,  and  the  hus- 
band was  entitled  to  curtesy  in  such  a  use.  It  should  be  carefully 
observed,  however,  that  courts  of  equity  carried  out  the  principle 
in  this  its  second  sense  onl}-  to  a  partial  and  quite  limited  extent. 
A  careful  examination  will  show,  I  think,  that  the  only  impoi'tant 
rules  of  law  adopted  by  the  early  chancellors  to  regulate  equitable 
estates  leere  those  concerning  descent  and  jnlieritance}  The  feudal 
incidents  of  legal  estates  were  held  not  to  apply  to  uses;  equitable 
estates  in  fee  could  be  conveyed  without  livery  of  seisin,  and  could 
be  devised  by  will,  and  were  not  subject  to  dower.  It  is  an  evi- 
dent error  to  say  that  equitable  estates  were  regulated  by  all  the 
rules  of  the  law  applicable  to  the  corresponding  legal  estates.  This 
second  sense  in  which  the  principle  is  understood  was  admirably 
stated  in  a  celebrated  opinion  of  Sir  Joseph  Jek3il,  of  which  the 
following  is  the  important  passage:  "The  law  is  clear,  and  courts 
of  ecpiity  ought  to  follow  it  in  their  judgments  concerning  titles 
to  equitable  estates;  otherwise  great  uncertainty  and  confusion 
would  ensue.  And  though  proceedings  in  equity  are  said  to  be 
secundum  discretionem  boni  viri,  yet  when  it  is  asked,  Vir  bonus 
est  quis?  the  answer  is,  Qui  consnlta  patrum,  qui  leges  jura(|ue 
servat.  And  it  is  said  in  Eooke's  Case-  that  discretion  is  a  science 
not  to  act  arbitrarily  according  to  men's  wills  and  private  affec- 
tions, so  the  discretion  which  is  executed  here  is  to  be  governed 

Davis  V.  W  illianis.  130  Ala.  .5.30.  30  South.  488,  Sf)  Am.  .St.  Rep.  55,  54  L.  R.  A.  749. 
When  a  c-oiilract  is  void  at  law  for  want  of  jiowor  to  make  it,  a  court  of  equity 
lias  110  jurisdiction  to  enforce  such  contract,  or  in  the  absence  of  fraud,  accident, 
or  mistake  to  so  modify  it  as  to  make  it  ie;4al.  and  then  enforce  it;  Heilges  v. 
Dixon  County.  150  U.  S.  182,  14  Sup.  Ct.  71.   1   Scott  298. 

^  The  early  cliancellors,  in  dealiuL;-  with  uses  and  otlier  equitalde  estates, 
plainly  shrani<  from  interfering  with  tlio  legal  rules  of  descent  and  inheritance, 
which  were  so  dear  to  'the  landed  proprietors.  Yet  they  held  that  equitable 
(^states  in  fee,  were  not  subject  to  dower,  although  they  were  to  curtesy;  per- 
haps this  distinction  was  not  displeasing  to  the  body  of  landowners. 
'    ^Rooke's  Case,  5  Coke,  00  b. 


205  EQUITY    FOLLOWS    THE    LAW.  §  427 

by  the  rules  of  law  and  ecjuity,  which  are  not  to  oppose,  but  each  in 
its  turn  to  be  subservient  to,  the  other.  This  discretion,  in  some 
cases,  folloAvs  the  hiw  inij)licitly;  in  others,  assists  it  and  advances 
the  remedy;  in  others  again,  it  relieves  against  the  abuse,  or  allays 
the  rigor  of  it ;  but  in  no  ease  does  it  contradict  or  overturn  the 
grounds  or  principles  thereof,  as  has  been  sometimes  ignorantly 
imputed  to  this  court.  That  is  a  discretionary  power,  which  neither 
this  nor  any  other  court,  not  even  the  highest,  acting  in  a  judicial 
capacity,  is  by  the  constitution  intrusted  with."'^  St)me  of  the 
sentences  of  this  often  quoted  passage  must,  I  think,  be  accepted 
only  with  considerable  nuidiiication.  Taken  literalh%  they  certainly 
contradict  a  large  portion  of  the  established  equitable  jurisdiction, 
and  of  the  settled  doctrines  of  the  equity  jurisprudence.  The  same 
twofold  import  of  the  principle  has  also  been  expressed  in  the  fol- 
lowing formulas:  1.  Equity  is  governed  by  the  rules  of  the  law' 
as  to  legal  estates,  interests,  and  rights.  2.  Equity  is  regulated  by 
the  analogy  of  such  legal  interests  and  rights,  and  the  rules  of 
tlie  law  aft'ecting  the  same,  in  regard  to  rquitahle  estates,  interests, 
and  rights,  vJicrr  a  in/  sticJi  aiKtlogij  clearly  subsists.^ 

^  427.  Operates  within  Very  Narrow  Limits. — The  maxim  is,  in 
truth,  operative  only  within  a  very  narrow  range;  to  raise  it  to  the 
])osition  of  a  general  principle  would  be  a  palpable  error.  Through- 
out the  great  mass  of  its  jurisprudence,  equity,  instead  of  following 
the  law,  either  ignores  or  openly  disregards  and  opposes  the  law. 
As  was  shown  in  that  portion  of  the  Introductory  Chapter  which 
deals  with  the  nature  of  equity,  one  large  division  of  the  equity 
jurisprudence  lies  completelj'"  outside  of  the  law ;  it  is  ndflitional 
to  the  laAv;  and  Avhile  it  leaves  the  law  concerning  the  same  subject- 
matter  in  full  force  and  efficacy,  its  doctrines  and  rules  are  con- 
structed without  any  reference  to  the  corresponding  doctrines 
and  rules  of  the  laAv.  Another  division  of  equity  jurisprudence  is 
directly  opposed  to  the  law-  which  applies  to  the  same  subject- 
matter;  its  doctrines  and  rules  are  so  contrary  to  those  of  the  law, 
that  when  they  are  put  into  operation  the  analogous  legal  doctrines 
and  rules  are  displaced  and  nullified.  As  these  conclusions  cannot 
be  questioned,  it  is  plain  that  the  maxim.  Equity  follows  the  law, 
is  very  partial  and  limited  in  its  application,  and  cannot,  like  all 
the  other  maxims  discussed  in  this  chapter,  be  regarded  as  a  gen- 
eral principle. 

U'owper  V.  Cowper,  2  V.  \\m^.  720.  7;"i2.  Sh.  84,  1  Scott,  2flG.  In  this  case 
the  court  relunctantly  adhered  to  tlie  legal  canon  of  descent  which  prefers 
the  whole  to  the  half  blood,  and  held  that  an  equitable  estate  in  fee  descended 
to  a  cousin  of  the  whole  blood,  instead  of  to  a  brother  of  the  half-blood  of 
tlie   deceased   owner. 

'  Snell's  i^quity,  -4. 


§170  EQUITY   JUEISI'KUDENCE.  200 


SECTION  XII. 
EQUITY    ACTS    IN    PERSONA.M,    AND    NOT    i3r    BEM. 

ANALYSIS.  ' 

§   428.  Oiiyin  and  original  meaning  of  this  principle. 

§§    170,1.317.  iModilicd  by  statutes  in  the  United  States. 

§    1318.  Remedies  in  ijersonam  beyond  the  territoiial  jurisdiction. 

§   429.  [S  170.]   In  what  sense  equitable  remedies  do  operate  in  rem. 

§§   4.30,431.  The  principle  that  courts  of  equity  act   upon  the  conscience  of  a 
party   explained. 

S  431.  'I'he  same,  per  Lord  ^Vestbury. 

§  428.  Origin  and  Original  Meaning. —  ...  In  the  infancy 
of  the  court  of  chancery,  while  the  chancellors  were  developing- 
their  system  in  the  face  of  a  strong  opposition,  in  order  to  avoid 
a  direct  collision  with  the  law  and  with  the  judgments  of  law 
courts,  they  adopted  the  principle  that  their  own  remedies  and  de- 
crees should  operate  in  personam  upon  defendants,  and  not  in 
rem.  The  meaning  of  this  simply  is,  that  a  decree  of  a  court  of 
equity  while  declaring  the  equitable  estate,  interest,  or  right  of 
the  plaintiff  to  exist,  did  not  operate  by  its  own  intrinsic  force 
to  vest  the  plaintiff'  with  the  legal  estate,  interest,  or  right  to  which 
he  was  pronounced  entitled;  it  was  not  itself  a  legal  title,  noi- 
could  it  either  directly  or  indirectly  transfer  the  title  from  the 
defendant  to  the  plaintiff'.  A  decree  of  chancery  spoke  in  terms 
of  personal  command  to  the  defendant,  but  its  directions  could 
only  be  carried  into  ett'ect  by  his  personal  act.  It  declared, 
for  example,  that  the  plaintiff'  was  equitable  owner  of  certain  land, 
the  legal  title  of  which  w^as  held  by  the  defendant,  and  ordered 
the  defendant  to  execute  a  conveyance  of  the  estate;  his  own  volun- 
tary act  was  necessary  to  carry  the  decree  into  execution;  if  he 
refused  to  convey,  the  court  could  endeavor  to  compel  his  obedi- 
ence by  fine,  and  imprisonment.  The  decree  never  stood  as  a  title 
in  the  place  of  an  actual  conveyance  by  the  defendant;  nor  was  it 
ever  carried  into  effect  by  any  officer  acting  in  the  defendant's 
name.^ 

§  170.  .  .  .  This  ancient  quality  in  the  operation  of  equitable 
remedies  has  been  greatly  modified  by  various  statutes  in  the 
liuited  States,  which,  in  some  instances,  provide  that  a  decree  es- 
tablishing an  estate,  interest  or  right  of  property  in  the  plaintiff 

'See  Hart  v.  Sansom,  110  IT.  S.  151.  3  Sup.  Ct.  .5Sfi,  1  Ames  Eq.  Jur.  11  (decree 
for  removal  of  cloud  on  title)  ;  McCann  v.  Randall,  147  Mass.  81,  99,  9  Am. 
St.  Rep.  G(iG.  17  N.  E.  75,  88  (decree  directing  sale  of  property)  ;  Gay  v. 
Parpart,   lOG   L'.   S.   G79,   CC'O.   1    Sup.   Ct.   45G    (decree  in   partition). 


2Ui  EQUITY    ACTS    IX    TEliSOXAM,    AND   KOT    IM    KEM.  ^  luK 

shall  execute  itself,  shall  be  of  itself  a  muniment  of  title,  by  divest- 
ing the  defendant  of  the  interiest  and  vesting  the  same  in  the  plain- 
titl,  without  any  conveyance  or  other  instrument  of  transfer.  The 
decree  alone,  being  on  record,  operates  as  a  sufficient  security  of 
the  plaintiff's  right  as  adjudged.  In  other  instances,  an  officer  of 
the  court,  commissioner,  master,  or  referee  is  authorized  to  carry 
out  the  provisions  of  the  decree  by  executing  the  necessary  instru- 
ments, whicii  are  thereupon  the  plaintiff's  muniments  of  title,  with 
the  same  effect  as  though  they  had  been  executed  by  the  defendant 
himself.- 

§  1317.  .  .  .  These  statutes  do  not  generally  interfere  with 
the  original  power  of  courts  of  equity  to  enforce  obedience  to  their 
decrees  by  the  parties  them.selves,  and  to  punish  such  parties  for 
their  disobedience  by  attachment,  fine,  imprisonment,  or  sequestra- 
tion.^ The  operation  of  these  statutes  is  confined  to  the  territorial 
limits  and  jurisdiction  of  the  states  in  which  they  are  respectively 
enacted.*  ,  .  .  There  are,  of  course,  classes  of  remedies  to  which 
this  legislation  cannot  apply, — as,  for  example,  decrees  prohibit- 
ing any  act,  general  pecuniary  recoveries,  analogous  to  money  judg- 
uients  at  law,   and  many  purely  ancillary  or  provisional  reliefs."' 

■Such  statutes  exist  in  nearly  all  the  states;  see  1  Pom.  Eq.  Rem.  §  13,  n. 
30,  where  their  provisions  are  given  in  detail.  Both  these  types  of  statute  are 
often  found  in  the  same  state. 

^  It  seems,  however,  that  a  general  decree  for  the  payment  of  money  should 
not  be  enforced  by  imprisonment  for  contempt:  Clements  v.  Tillman,  79  Ga.  451, 
11  Am.  tSt.  Rep.  441,  5  S.  E.  194,  Sh.  194. 

*  Guarantee  Trust  etc.   Co.  v.  Delta  etc.   Co.,   104  Fed.  5,  C.   C.  A. 
'I'liat   it    is   within   the   power   of   a    United    States   coui't   to   give   efficacy   to    its 
decree    in    transferring   title,    in    conformity    with    the    legislation    of    the    state 
in  which  such  court  is  sitting,  see  Langdon  v.  Sherwood,   124  I".  S.  74,  8  Sup. 
Ct.    429,    Sh.    79. 

=■  See,  also,  Merrill  v.  Beckwith,  1()3  Mass.  503,  10  N.  E.  855,  1  Ames  Eq.  Jur. 
19     (specific     performance;     no     personal     service    of     summons   on    defendanl). 

Validity  of  Decree  Based  upon  Service  of  Process  hy  Publication. — lupiily 
decrees  which  act  onh^  in  personam  can,  in  general,  liave  effect  only  as  against 
parties  duh'  served  with  process  within  the  territorial  jurisdiction  of  the  court: 
Hart  V.  Sansom,  110  U.  S.  151,  3  Sup.  Ct.  586,  1  Ames  Eq.  Jur.  11.  It  is 
competent,  however,  for  a  state  to  provide  methods  for  the  determination  of 
title  to  land  witliin  its  borders,  and  in  the  exercise  of  such  power,  it  may  give 
to  equity  decrees  relating  to  or  affecting  the  title  to  such  land,  the  eiTect  of 
judgments  in  rem,  which,  therefore  may  be  based  upon  service  of  process  by 
publication.  "Jt  can  not  bring  the  person  of  a  nonresident  within  its  limits — 
its  process  goes  not  out  beyond  its  borders — but  it  may  determine  the  extent 
of  liis  title  to  real  estate  within  its  limits,  and,  for  the  purjxjse  of  such  deter- 
mination, may  provide  any  reasonable  methods  of  imparting  notice";  Arndt 
V.  Griggs,  134  U.  S.  310,  10  Sup.  Ct.  557.  See,  also,  Pennoyer  v.  Neff,  95  U.  S. 
714  (the  leading  case)  ;  Dillon  v.  Heller,  39  Kan.  599,  18  Pac.  693.  1  Ames 
Eq.    Jur.    14,    1    Scott    24(i. 


§  170  EQUITY    JURISPRUDENCE.  208 

§  1318.  Remedies  in  Personam  beyond  the  Territorial  Jurisdic- 
tion.— The  power  to  act  iu  persouani,  through  their  remedies,  is 
stil]  hekl  by  all  courts  of  equity,  even  in  presence  of  the  foregoing 
legislation.  Of  this  nature  must  always  be  the  remedies  when  the 
subject-matter,  either  real  or  personal  property,  is  situated  beyond 
the  territorial  jurisdiction  of  the  court,  in  another  state  or  country. 
The  jurisdiction  to  grant  such  remedies  is  well  settled.  Where 
the  subject-matter  is  situated  within  another  state  or  country,  but 
the  parties  are  within  the  jurisdiction  of  the  court,  any  suit  may  be 
maintained  and  remedy  granted  wliieh  directly  affect  and  operate 
upon  the  person  of  the  defendant,  and  not  upon  the  subject-mat- 
ter, although  the  subject-matter  is  referred  to  in  the  decree,  and 
.the  defendant  is  ordered  to  do  or  to  refrain  from  certain  acts  to- 
ward it,  and  it  is  thus  ultimately  but  indirectly  affected  by  the 
relief  granted.  As  examples  of  this  rule,  suits  for  specific  perform- 
ance of  contracts,  for  the  enforcement  of  express  or  implied  trusts, 
for  relief  on  the  ground  of  fraud,  actual  or  constructive,  for  the 
final  accounting  and  settlement  of  a  partnership,  and  the  like,  may 
be  bi'ought  in  any  state  where  jurisdiction  of  defendant's  person 
is  obtained,  although  the  land  or  other  subject-matter  is  situated 
in  another  state,  or  even  in  a  foreign  country.^  On  the  other  hand, 
where  the  suit  is  strictly  local,  the  subject-matter  is  specific  prop- 
erty, and  the  relief  when  granted  is  such  that  it  must  act  directly 
upon  the  subject-matter,  and  not  upon  the  person  of  the  defend- 
ant, the  jurisdiction  must  be  exercised  in  the  state  where  the  sub- 
ject matter  is  situated. - 

§  429.  In  What  Sense  Equitable  Remedies  do  Operate  in  Rem. — 
§  170.  .  .  .  When  we  turn  from  this  mere  external  manner 
in  which  equitable  remedies  were  enforced  according  to  the  original 
chancery  procedure  to  the  essential,  and  so  to  speak  internal,  na- 
ture and  qualities  of  the  remedies  themselves,  instead  of  their 
being  merely  personal,  it  is  one  of  the  distinctive  and  central  prin- 
ciples of  the  equity  remedial  system  that  it  deals  with  propert,y 
rights, — estates,  interests,  liens, — rather  than  with  the  mere  personal 

^  Thi-;  rule  applies  to  tlie  United  States  courts  as  well  as  the  state  courts, 
and  is  also  well  settled  in  England:  Penn  v.  Lord  Baltimore,  1  Ves. 
8r.  444,  2  Lead.  Cas.  Eq.,  4th  Am.  ed..  ISOfi,  1  Keener  12,  I  Scott  230; 
Toller  V.  Carteret,  2  Vern.  494,  1  Ames  Eq.  .Tur.  22,  1  Scott  235;  Massie 
V.  Watts,  6  Cranch  148,  Sh.  82;  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am. 
Dec.  192,  1  Ames  Eq.  .lur.  6;  C4reat  Falls  Mfg.  Co.  v.  Worster,  23  X.  H.  462, 
1  Scott  241.  As  to  foreclosure  of  mortgages  on  land  outside  the  jurisdiction, 
see  Toller  v.  Carteret,  supra:  Vjiion  Trust  Co.  v.  Olmsted.  102  X.  Y.  720.  7  X. 
E.    822,    1    Ames    Eq.    Jur.    23. 

M"'arteret  v.  Petty,  2  Swans.  323,  1  Ames  Eq.  Jur.  21;  In  re  Hawthorne,  23 
Ch.    D.    743,    Sh.    77. 


209  EQUITY    ACTS    IN    PERSOXAIM,    AND    NOT    IN    REM.  §  170 

rights  and  obligations'  of  the  litigant  parties.  This  tendency  of 
equity  to  base  its  remedies  upon  the  rights  of  property,  in  their 
various  grades,  from  complete  estates  to  liens  or  charges,  is  exhi- 
bited in  the  clearest  manner  in  all  its  suits  brought  to  enforce  the 
rights  and  duties  growing  out  of  contracts.  Although  the  contract 
is  executory,  even  though  it  stipulates  only  with  respect  to  things 
not  yet  in  existence, — things  to  be  acquired  in  future, — the  remedial 
right  is  worked  out  by  conceiving  of  a  present  ownership,  interest, 
lien,  or  charge,  as  arising  from  the  executory  provisions,  or  a 
present  possibility  which  will  ripen  into  such  an  interest,  and  by 
establishing  this  proprietary  right,  protecting  and  enforcing  it. 
The  decree,  with  a  few  exceptional  cases,  passes  over  the  perannnl 
rights  of  the  plaintiff,  and  the  personal  obligations  of  the  defend- 
ant, deals  with  rights  or  interests  in  property,  and  shapes  its  relief 
by  conferring  rights,  or  imposing  duties  growing  out  of  or  con- 
nected with  some  grade  of  property.  Even  when  the  executni-y 
contract  creates  what  at  law  Avould  be  a  debt,  and  when  the  re- 
covery at  law  would  be  a  general  pecuniary  judgment,  the  equit- 
able remedy  views  this  debt  as  an  existing  fund  and  awards  its 
relief  in  the  form  of  an  ownership  or  of  lien  upon  that 
fund.  A  general  pecuniary  judgment  to  be  recovered  from  the 
debtor's  assets  at  large — as  an  award  of  damages — is  only  granted 
by  a  court  of  equity  under  very  exceptional  circumstances.* 

Another  quality  of  the  distinctively  equitable  remedies,  connect- 
ed with  and  perhaps  growing  out  of  the  one  last  mentioned,  is 
their  specific  character,  both  with  respect  to  substance  and  form. 
Except  in  actions  to  recover  possession  of  land  or  of  chattels  ("ac- 
tion of  right,"  "ejectment,"  or  "replevin"),  the  legal  remedies 
by  ar-tion  are  all  general  recoveries  of  specified  sums  of  money, 
which  may  be  collected  by  execution  out  of  any  property  of  the 
debtor  not  exempted.  The  equitable  remedies,  M'ith  a  few  excep- 
tions, are  specific;  deal  with  specific  things,  land,  chattels,  choses 
in  actions,  funds;  establish  specific  rights,  estates,  interests,  liens, 
and  charges  in  or  over  these  things;  and  direct  specific  acts  to  be 
dene  or  omitted  with  respect  to  these  things,  for  the  purpose  of  en- 
forcing the  rights  and  duties  thus  declared.  Even  when  the  con- 
troversy is  concerning  pecuniary  claims  and  obligations,  and  the 
final    relief  is   wholly   pecuniary,    the    ef|uitable    remedies    are    i\(\- 

'  Tlie  same  conception  is  shown  in  the  jurisdiction  which  equity  exercises 
over  the  p<"i'><rniK  of  those  who  are  non  sni  juris,  such  as  infants,  lunatics,  etc. 
Althouffh  tlio  jinisdir-tinn.  wlien  existinjj,  extends  over  the  persons,  the  fact  upon 
which  it  rests,  and  whidi  is  the  necessary  occasion  for  its  exercise,  is  the  existence 
of  properfi/  helonjjinp  to  the  person.  An  infant,  for  example,  cannot  be  made  r. 
ward  of  the  court  merely  hecanse  he  is  an  infant,  but  because  he  is  an  infant 
possessinjj  property  which  the  court  can  administer. 
14 


§  430  EQUITY   JURISPRUDENCE.  210 

]iiinistered  by  regarding  the  subject-matter  as  a  specific  fund,  and 
by  adjudging  such  fund  to  its  single  owner,  or  by  apportioning 
it  among  the  several  claimants.  It  is  the  distinctive  feature  of  the 
system,  which  gives  it  a  superior  efficacy  over  the  legal  methods, 
that  it  ascertains  a  rightful  claimant's  interest  in  or  over  a  specific 
thing,  land,  chattels,  choses  in  action,  debts,  and  even  money  in 
tlie  form  of  a  fund,  and  follows  it  through  the  hands  of  successive 
possessors  as  long'  as  it  can  be  identified.  The  two  qualities  which 
I  have  thus  described,  that  equitable  remedies  deal  with  property 
rights  rather  than  with  personal  rights  and  obligations,  and  that 
they  are  specific  in  their  nature,  are  the  peculiar  and  important 
features  of  the  system,  and  give  it  the  power  of  expansion  and  of 
application  to  an  unlimited  variety  of  circumstances,  which  enables 
e(|uity  to  keep  abreast  with  the  progress  and  changing  wants  of 
•society. 

§  430.  Operation  of  Equity  upon  the  Conscience  of  a  Party. — 
There  is  still  a  third  aspect  of  the  remedial  action  of  equity  which 
should  be  accurately  understood,  since  it  lies  at  the  foundation  of 
much  of  the  dealing  of  the  court  of  chancery  with  the  legal  estates 
and  rights,  and  especially  those  conferred  by  the  positive  provisions 
')i'  statutes.  I  mean  the  mo.st  important  principle,  that  equity  acts 
upon  the  conscience  of  a  party,  imposing  upon  him  a 
personal  obligation  of  treating  his  property  in  a  manner 
very  different  from  that  which  accompanies  and  is  permitted  by 
his  mere  legal  title.  Whenever  a  legal  estate  is,  by  virtue  of  some 
positive  rule  of  either  the  common  or  statute  law,  vested  in  A,  but 
tliis  legal  estate  in  A  is  of  itself  a  violation  of  some  settled  equit- 
able doctrines  and  rules,  so  that  B  is  equitably  entitled  to  the 
property  or  to  some  interest  in  or  claim  upon  it,  equity  grants  its 
relief,  and  secures  to  B  his  right,  not  by  denying,  or  disregarding, 
or  annulling,  or  setting  aside  A's  legal  estate,  but  by  admitting 
its  existence,  by  recognizing  it  as  wholly  vested  in  A.  and  then  by 
Avorking  upon  A's  conscience,  and  imposing  upon  him  the  duty  of 
holding  and  using  his  legal  title  for  B's  benefit,  so  that,  in  the 
ordinary  language  of  the  courts,  he  is  treated  as  a  trustee  for  B. 
One  or  two  familiar  exami)les  will  illustrate  the  working  of  this 
fundamental  principle.  A  testator  has  given  certain  lands  to  A  by 
a  will  properly  executed;  but  A  procured  the  devise  by  wrongful 
j-epresentations  made  to  the  testator,  and  the  lands  should,  by  the 
doctrines  of  equity,  belong  to  B.  The  statute  of  wills,  however, 
is  peremptory  in  its  prescril)ed  mode  of  executing  a  will :  there  can 
he  no  will  without  conforming  to  the  statutory  requirements.  Equity 
does  not  attempt  to  overrule  the  statute;  it  admits  the  validity  of 
the  will,  and  the  legal  title  vested  in  A,   but   on   account   of   A's 


211  EQUITY    ACTS    IX    rKKSONA.M,    AND    NOT    IN    HEM.  §  431 

wrongful  conduct  in  procuriuu'  tlie  devise  to  hiniselt",  it  says  that 
lu'  cannot  conscientiously  hold  and  enjoy  that  legal  title  for  his 
own  benefit,  and  imposes  upon  his  conscience  the  obligation  to 
hold  the  land  for  B's  benefit,  as  the  equitable  owner  thereof;  and 
then  arises  the  further  obligation  upon  his  conscience  to  perfect 
and  complete  B's  equitable  ownership  by  a  conveyance.^  In  exactly 
Ih.e  same  manner  the  equity  of  a  party  is  worked  out  in  all  those 
cases  where  the  peremptory  provisions  of  the  statute  of  frauds 
stand  in  the  "way  of  any  legal  right  or  claim,  as  in  the  specific  en- 
forcement of  a  verbal  contract  for  the  sale  of  land,  which  has  been 
part  performed  by  the  plaintifif.  Another  illustration  of  the  prin- 
cii)le  may  be  seen  in  the  doctrine  established  by  courts  of  equity 
concerning  the  effect  of  the  registry  or  recording  acts.  These  stat- 
utes declare,  in  general  terms,  and  without  any  exception,  that  a 
snbsequent  grantee  or  mortgagee  who  first  puts  his  deed  or  mort- 
gage upon  record  shall  therebj'  acquire  the  precedence  over  a  prior 
unrecorded  conveyance.  Courts  of  equity  have  added  the  rule 
that  if  the  subseciuent  party,  who  thus  obtains  the  legal  benefit  of 
a  record,  lias  notice,  his  recorded  instrument  shall  still  be  sub- 
ordinate to  the  prior  unrecorded  conveyance  of  which  he  was 
charged  with  notice.  In  giving  this  effect  to  a  notice,  the  courts 
of  equity  do  not  assume  to  nullify  the  provisions  of  the  recording 
act;  they  admit  that  a  subsequent  grantee  has,  by  means  of  his 
record,  obtained  the  complete  legal  title,  which  cannot  be  directly 
.■-et  aside  nor  disturbed;  but  they  say  that  the  notice  of  the  prior 
(•onveyance  makes  it  unconscientious  for  him  to  hold  and  enjoy 
that  legal  title  for  his  own  benefit,  and  they  impose  upon  his  con- 
science the  obligation  of  holding  it  for  the  benefit  of  the  prior 
unrecorded  grantee." 

§  431.  This  principle  which  I  have  attempted  to  explain  and 
illustrate  in  the  preceding  paragraph,  and  which  underlies  a  very 
large  part  of  the  remedial  action  of  equity,  was  stated  with  his 
usual  clearness  and  accuracy  by  Lord  Westbury  in  the  following 
passage:  "The  court  of  equity  has,  from  a  very  early  period,  de- 
cided that  even  an  act  of  Parliament  shall  not  be  used  as  an  instru- 
ment of  fraud ;  and  if  in  the  machinery  of  perpetrating  a  fraud 
an  act  of  Parliament  intervenes,  the  court  of  equity,  it  is  ti'ue, 
does  not  set  aside  the  act  of  Parliament,  but  it  fastens  on  the  indi- 
vidual who  gets  a  title  under  that  act,  and  imposes  upon  him  a  per- 
sonal obligation,  because  he  applies  the  act  as  an  instrument  for 
accomplishing  a  fraud.     In  this  way  the  court  of  etjuity  has  dealt 

^See.    post.     §§     919,     1054. 
"  tSee  §S  659-055. 


§  431  EC^UITY    JURISPRUDENCE.  212 

with  the  statute  of  wills  and  the  statute  of  frauds."^  Altliouuh 
Lord  Westbury  here  sjieaks  only  of  a  case  where  the  equitable 
rights  of  one  person  arise  from  the  fraud  of  another  who  has  there- 
by obtained  the  legal  estate,  yet  the  principle  applies,  whatever  be 
the  grounds  and  occasion  of  the  equitable  interests  and  claims 
which  are  asserted  in  opposition  to  the  one  having  the  legal  title.* 

^McCormick  v.   Grogan,  L.  R.   4  H.   L.   82,  97,   1    Scott  241.     This  case  wav 
concerning  a  devise  which  had  been  obtained  by  fraud. 

'In  the  very  recent  case  of  Greaves  v.  Tofield,  L.  K.  14  Ch.  Div.  563,  577,  1 
Scott,  235,  which  arose  upon  the  eft'ect  of  a  recording  act,  and  of  actual  notic». 
to  a  subsequent  encumbrancer  who  obtained  the  first  registry,  Bramwell,  L.  J.» 
stated  the  principle  as  follows:  "I  understand  the  authorities  to  have  established 
this  beyond  dispute,  that  if  a  man  having  an  estate  agrees  to  sell  it,  or  undertake* 
to  grant  an  interest  in  it,  or  a  charge  upon  it,  for  a  valuable  consideration, 
and  afterwards,  disregarding  the  bargain  he  has  made,  eonveys  to  a  third  person, 
or  so  deals  with  it  by  bargain  with  a  third  person  that  he  is  incompetent  to 
convey  the  estate  or  grant  the  interest  to  the  first  which  he  had  agreed  to  do, 
and  the  third  person  has  all  along  had  notice  of  the  first  contract,  the  conscience 
of  the  second  purchaser  is  afl'ected,  and  he  cannot  retain  the  estate  without 
giving  the  person  who  entered  into  the  first  contract  that  right  in  it  for  whiclj 
he  had  stipulated,  and  if  necessary,  he  must  join  in  a  conveyance  of  the  estate, 
if  the  first  person  was  a  purchaser,  or  he  must  join  in  executing  a  charge,  if  i{'. 
•was  a  charge  that  was  to  be  executed,  or  a  lease,  if  it  was  a  lease  to  be  granted. 
I  understand  the  authorities  further  to  establish  this,  that  that  principle  is  not 
affected  by  those  acts  of  Parliment  which  require  registration  in  order  to  give 
or  to  prevent  a  priority,  but  that  the  conscience  of  the  second  purchaser,  as 
I  have  called  him,  is  equally  affected,  and  that  the  intention  of  the  legislature 
in  such  acts  as  those  I  have  referred  to  was  to  afford  a  protection  to  persons 
whose  consciences  were  not  affected  and  not  to  give  the  second  purchaser 
whose  conscience  was  affected  an  opportunity  of  joining  in  the  commis- 
sion of  that  which  was  a  breach  of  conti'act  and  a  wrong  to  the  first  person 
who  made  the  bargain."  This  is  a  clear  statement  of  the  principle,  and  one 
would  have  supposed  that  the  very  statement  would  have  carried  conviction 
of  its  essential  justice.  But  the  observations  added  by  l\Tr.  Justice  Bramwell, 
in  which  he  expresses  a  strong  dissent  from  this  principle,  and  condemns 
other  familiar  principles  of  equity  which  have  heen  so  long  and  so  firmly  es- 
tablished that  they  may  be  regarded  as  the  foundntions  of  its  jurisprudence, 
show  very  clearly  the  danger  to  be  apprehended  from  associating  purely  law 
judges  in  the  administration  of  equity.  His  criticisms  are  trivial,  and  his  reas- 
oning is  weak,  but  even  such  criticism  and  reasoning  coming  from  the  hench 
may,  in  time,  undermine  the  whole  system  of  equity.  The  danger  was  pointed 
out  at  the  time  when  the  judicature  act  was  passed  in  England:  it  has  Tieen 
realized  in  some  of  the  states  of  our  o-wn  country,  where  equity  and  law  liavo 
been  combined,  in  which,  beyond  a  doubt,  equity,  as  a  system,  is  being  supplanted 
by  the  law  as  administered  from  the  bench. 


•<213  CONCEKXINU    rENALJlKtt    AND    FOKrElTUUES. 


CHAPTER  II. 

CERTAIN  DISTINCTIVE  DOCTRINES  OF  EQUITY 
JURISPRUDENCE. 


•  SECTION  I. 
CONCERNING     PENALTIES     AND     FORFEITURES. 

ANALYSIS. 

§§   433-447.  Penalties;      eciuitiible    relief    against. 

§   433.  General    ground    and    mode    of    interference. 

S  434.  Form   of   relief;     when   given   at    law. 
§§  43.5, 430.  What    ai'e    penalties. 

5)  43().  To  secure  the  i^ayment  of  money  alone. 
§S  437-44.5.  Stipulations   not   penalties. 

§  437.  Stipulations  in  the  alternative. 

§   438.  Ditto,  for  the  reduction  of  an  existing  debt  upon  prompt  payment. 

§  439.  Ditto,  for  accelei'ating  payment  of  an  existing  debt. 
§§   440-44.5.  Ditto,    for    "liquidated    damages." 

§   440.  "Liquidated   damages''   described    in   general. 
§§   441-44.5.  Rules    determining-    between    liquidated    damages    and    penalties.  . 

§   441.   1.  Payment  of  a   smaller  sum  secured  by  a   larger. 

§  442.  2.  Agreement  for  the  performance  or  non-jierformance  of  a  single 
act. 

§  443.  3.  Agreement  for  the  performance  or  non-performance  of  several 
acts  of  ditterent  degrees  of  importance. 

§  444.  4.  The  party  liable  in  the  same  amount  for  a  partial  and  for  a 
complete   default. 

§  445.  5.  Stipulation  to  pay  a  fixed  sum  on  default  in  one  of  several 
acts. 

§  446.  Specific  performance  of  a  contract  enforced,  although  a  penalty 
is  attached;  party  cannot  elect  to  pay  the  i)enalty  and  not  per- 
form. 

§   447.  Otherwise  as  to  stipulation  for  liquidated  damages. 
§§   44S-4fiO.  Of    forfeitures. 
§S   440-4.58.  When  equity  will  relieve  against  forfeitures. 

§  4.'50.  Oeneral  ground  and  extent   of  such  relief. 

§  4.'il.  Relief  when  forfeiture  is  occasioned  by  accident,  fraud,  mistake, 
surprise,    or    ignorance. 

§  4.52.  No  relief  when  forfeiture  is  occasioned  by  negligence,  or  is  willful. 
5§  4.')3-4.'i4.  Relief  against  forfeitures  arising  from  covenants  in  leases. 

§  4!^^.  Ditto,  from   contracts  for  the  sale  of  lands. 

§  4.'^n.  Ditto,  from  other  special  contracts. 

S  4.57.  Ditto,  of  shares  of  stock  for  non-payment  of  calls. 

§  4.58.  Ditto,   when   created   by   statute. 
§§  459-460.  Equity  will   not   enforce   a   forfeiture. 


§  -!3o  ECt'UlTY    jrinsi'lU'DKNCE.  214 

§  433.  Penalties — Ground  and  Mode  of  Interference.^The  true 
gTound  of  equitable  interposition  and  relief  in  eases  of  penalties 
;;n(l  forfeitures  which  might  be  enforced  at  law  Avas  stated  by- 
Lord  Macclesfield,  in  the  leading  case  of  Peachy  v.  Duke  of  Somer- 
set, to  be  "from  the  original  intent  of  the  case,  and  the  court  can  give 
a  iiarty,  by  ivay  of  recompense,  all  that  he  expected  or  desired."  lie 
conlined  the  interference  of  ecpiity,  however,  to  those  cases  in 
which  the  penalty  is  intended  only  to  secure  the  payment  of  money. ^ 
The  doctrine  was  soon  extended,  so  that  it  embraces  cases  where 
the  penalty  is  used  not  merely  to  secure  a  money  payment,  but  as 
a  security  for  the  performance  of  some  collateral  act.^  In  its  most 
general  scope  and  operation  the  doctrine  may  be  stated  as  folloAvs : 
Wherever  a  penalty  or  a  forfeiture  is  used  merely  to  secure  the 
payment  of  a  debt,  or  the  performance  of  some  act,  or  the  enjoj'- 
ment  of  some  right  or  benefit,  equity,  considering  the  payment,  or 
performance,  or  enjoyment  to  be  the  real  thing  intended  by  the 
agreement,  and  the  penalty  or  forfeiture  to  be  only  an  accessory, 
will  relieve  against  such  penalty-  or  forfeiture  by  awarding  com- 
i:)ensatiou  instead  thereof,  proportionate  to  the  damages  actually 
resulting  from  the  non-payment,  or  non-performance,  or  non-en- 
joyment, according  to  the  stipulations  of  the  agreement.  The  test 
Avhich  determines  wdiether  e(|uity  will  or  will  not  interfere  in  such 
cases  is  the  fact  whether  compen.sation  can  or  cannot  be  adequately 
nuule  for  a  breach  of  the  obligation  which  is  thus  secured.  If  the 
penalty  is  to  secure  the  mere  payment  of  money,  compensation 
can  always  be  made,  and  a  court  of  equity  will  relieve  the  debtor 
party  upon  his  paying  the  principal  and  intei-est.  If  it  be  to 
secure  the  performance  of  some  collateral  act,  and  compensation 
for  a  non-performance  can  be  made,  a  court  of  efpiity  will  ascertain 
the  amount  of  damages,  and  relieve  upon  their  payment."  It  is  a 
familiar  doctrine,  therefore,  that  if  the  penalty  is  inserted  to  secure 
the  payment  of  a  pecuniary  obligation,  relief  against  it  will  be 
granted  to  the  debtor  upon  his  payment  of  the  real  amount  due 
and  secured,  together  with  interest  and  costs,  if  any  have  accrued.* 
Where  the  penalty  is  to  secure  the  performance  of  some  collateral 
act  or  undertaking,  equity  Avill  interpose,  if  aderjuate  compensation 
can  be  made  to  the  creditor  party.  The  original  practice  in  such 
cases  was  for  the  court  of  eriuity  to  retain  the  l)il1,  direct  an  issue 
to  ascertain  the  amount  of  damages,  and  to  grant  relief  upon  pay- 

'  I'cachy    v.    Duke   of   Somerset.    1    Stranpo.    447. 
-  S^loman  v.  Walter,   1    Jlrown   Ch.  41S.  per  Lord  Tlim-low. 

'Reynolds  v.  Pitt,    10   Ves.    140:     Walker  v.   Wlieeler,   2   Conn.   299;     Giles  v. 
Austin,    3S    X.    Y.   Sup.    Ct.    215.   02    X.    V.    4Sr, 
*  Skinner   v.    Da\ton,   2   Johns.    Ch.    5."?5. 


215  CONCERNING    PKN'AI.TI  KS    AND    FOKFEITUHES.  §    135 

nient  of  the  daniaiies  thus  assessed  by  the  jury.''  By  the  iiioi-e 
inoderu  praetice  the  court  of  equity  would  doubtless  determine 
the  amount  of  damages  itself,  without  the  intervention  of  a  jury. 

§  434.  Form  of  Relief. — While  the  two  jurisdictions  at  law  and 
in  equity  were  kept  distinct,  althouyh  perhaps  given  to  the  same 
tribunal,  the  form  of  the  remedy  in  which  relief  was  obtained 
asiainst  a  penaltj^  was  that  of  a  suit  brouiiht  by  the  debtor  party  to 
procure  the  agreement  to  be  surrendered  up  and  canceled,  or  the 
forfeiture  perhaps  to  be  set  aside,  upon  payment  of  the  debt  or 
damages;  and  this  decree  would  often  be  accompanied  by  an  in- 
junction restraining  an  action  at  law  upon  the  agreement  brought 
or  threatened  by  the  creditor  party.  Under  the  modern  legislation, 
and  es-pecially  under  the  reformed  procedure,  the  rights  of  the 
debtor  party  would  be  protected,  and  the  relief  obtained,  without 
any  separate  suit  in  equity,  but  by  an  equitable  defense  set  up  in 
the  action  at  law  by  which  the  creditor  sought  to  enforce  the 
literal  terms  of  the  agreement.  It  has,  however,  become  unneces- 
sary, in  many  instances,  to  invoke  the  purely  equitable  jurisdiction 
in  order  to  avoid  penalties.  The  equitable  doctrine,  as  above  de- 
scribed, has  to  a  considerable  extent  been  incorporated  into  the 
law,  partly  as  the  result  of  statute,  and  partly  from  the  gradual 
development  of  equitable  principles  in  the  common  law.  Whatever 
be  the  true  explanation,  the  rule  is  now  very  general,  even  if  not 
universal,  that  a  recovery  in  actions  at  law  upon  contracts  Avhich 
contain  an  express  stipulation  for  a  penalty  is  limited  to  the  actual 
debt  due,  or  the  actual  damages  sustained.^  The  law  courts  have 
not,  however,  gone  to  the  same  length  in  adopting  the  equitable 
principle  in  cases  of  forfeiture. 

§  435.  Penalties  Defined. — Such  being  the  general  doctrine,  the 
important  and  practical  inquiry  in  the  vast  majority  of  eases  is, 
What  are  the  distinctive  features  of  a  penalty?  or,  What  kind  of 
stipulation  or  provision  in  an  agreement  amounts-  to  a  penalty,  so 
that  it  may  come  within  the  scope  of  the  equitable  doctrine?  When 
the  stipulation  is  intended  to  secure  merely  the  payment  of  money, 
the  test  is  easy  and  plain,  and  well  established.  When  it  is  de- 
signed to  secure  the  performance  of  some  collateral  act.  the  ([ues- 
tion  is  much  more  difficult  to  answer,  and  involves  a  statement 
of  the  differences  between  penalties  and  provisions  for  the   pay- 

=  Hardy  v.  Martin,  1  BroAvn  Cli.  410,  note,  1  Cox  2(5,  2  Scott  123;  llagar  v. 
Buck,  44  Vt.  285.  8  Am.  Rep.  3G8. 

Mn  most  of  the  state;?  the  judgment  at  law  is  limited  to  the  amount  of  debt 
or  damages  actually  due  or  sustained:  in  a  few,  liowever,  the  j\idgnient  is  form- 
ally entered  for  the  whole  sum  mentioned  in  llie  penalty,  but  with  a  provision 
that  it  is  to  be  satisfied  by  a  payment  of  tlie  actual  del)t  or  damages. 


§  436  EQUITY    JUIIISPIU'DEXCE.  21'6 

nient  of  "liquidated   dama,iies."     The   question  Avhat   is   and  what 
is  not  a  penalty  I  now  proceed  to  examine. 

§  436.  To  Secure  the  Payment  of  Money  Alone. — Where  the  act 
secured  to  be  done  is  merely  the  payment  of  money,  the  test  is 
simple  and  well  established.  It  ma}'  be  regarded  as  a  rule  of 
universal  application,  that  if  a  party  for  any  reason  is  liable  to  pay, 
or  binds  himself  to  pay,  a  certain  sum  of  money,  and  adds  a  stipu- 
lation to  the  effect  that  in  case  such  sum  shall  not  be  paid  at  the 
time  agreed  upon  he  shall  then  be  liable  to  pay.  or  become  bound 
to  pay,  a  larger  sum  of  money,  the  stipulation  to  pay  the  larger 
sum  is  invariably  and  necessarily  a  penalty.  Of  course,  in  this 
proposition  it  is  understood  that  the  "larger  sum"  is  not  simply 
the  lawful  interest  accruing  upon  the  principal  actually  due.  The 
same  doctrine  may  be  stated  in  more  comprehensive  terms,  in  the 
language  of  one  of  the  most  able  of  modern  English  chancellors: 
"The  law  is  perfectly  clear  that  where  there  is  a  debt  actually 
due,^  and  in  respect  of  that  debt  a  security  is  given,  be  it  by  way 
of  stipulation,  that  in  case  of  its  not  being  paid  at  the  time  ap- 
pointed, a  larger  sum  shall  become  payable  and  be  paid. — in  either  of 
these  cases  equity  regards  the  security  that  has  been  given  as  a 
mere  pledge  for  the  debt,  and  it  will  not  allow  either  a  forfeitui'c 
of  the  property  pledged  or  any  augmentation  of  the  debt  as  a 
penal  provision,  on  the  ground  that  equity  regards  the  contemplat- 
ed forfeiture  which  might  take  place  at  law  with  reference  to  the 
estates  as  in  the  nature  of  a  penal  provision  against  which  equity 
will  relieve  when  the  object  in  view.  viz..  the  securing  of  the  debt. 
is  attained,  and  regarding  also  the  stijnilation  for  the  payment  of 
a  larger  sum  of  money  if  the  sum  be  not  paid  at  the  time  it  is  due, 
as  a  penalty  and  a  forfeiture  against  which  equity  will  relieve.  "- 
The  criterion  here  given,  for  all  cases  where  the  mere  payment  of 
a  pecuniary  obligation  is  intended  to  be  secured,  applies,  it  will  be 
observed,  alike  to  a  penalty  and  to  a  forfeiture.  If  the  additional 
stipulation  involves  a  liability  for  a  larger  sum  of  money  only,  it 
is  a  penalty;  if  it  involves  the  loss  of  lands,  chattels,  or  securities 
])ledged,  it  is  a  forfeiture.  The  same  test,  in  substance,  deter- 
mines the  nature  of  the  provision  by  which  the  performance  of 
some  collateral  act  is  secured.  If  the  act  thus  secured  be  single, 
and  the  compensatory  damages  justly  resulting  from  its  non-per- 
formance  can  be   ascertained   with   reasonable   certainty,   and   the 

^  It  should  be  observed  by  the  student  that  tlie  word  "due"  i:^  used  hero  in  its 
legal  meanincf,  of  somethinaf  agreed  to  he  paid,  and  not  in  it^  ])(>|ndar  sense, 
<rf  somethinsr  already  payable. 

•Thompson  v.  Hudson,  L.  R.  4  H.  L.  Cas.  1,  15,  per  Hatiierley,  L.  C. 


yi7  coxcKRXiXG  pi:x.\i.Tii:s  axo   koi;ij;itukes.  §438 

sii])iilation  binds  the  debtor  party  to  ])ay  a  fixed  sum  larger  than 
such  amount  of  damages,  then  the  stipulation  is  a  penalt.y.'' 

;:;  437.  Stipulations  not  Penalties — Alternative  Stipulations. — 
Such  being  the  general  test  by  which  to  determine  the  nature  of  a 
penalty,  there  are  certain  kiiids  of  stipulations  not  unfrequently 
inserted  in  agreements  which  have  been  judicially  interpreted  and 
held  not  to  be  penalties,  and  therefore  not  subject  to  be  relieved 
against  by  courts'  of  equity.  The  nature  and  effect  of  these  stipula- 
tions I  shall  briefly  explain.  The  first  instance  is  that  of  a  contract 
by  the  terms  of  which  the  contracting  party  so  binds  himself  that 
he  is  entitled  to  perform  either  one  of  two  alternative  stipulations, 
at  his  option;  and  if  he  elects  to  perform  one  of  these  alternatives, 
he  promises  to  pay  a  certain  sum  of  money,  but  if  he  elects-  to  per- 
form the  other  alternative,  then  he  binds  himself  to  pay  a  larger 
sum  of  money.  To  state  the  substance  of  the  agreement  in  briefer 
terms,  the  contracting  party  may  do  either  of  two  things,  but  is  to 
pay  higher  for  one  alternative  than  for  the  other.  In  such  a  case 
equity  regards  the  stipulation  for  a  larger  payment,  not  as  a 
penalt}',  but  as  liquidated  damages  agreed  upon  by  the  parties. 
It  will  not  relieve  the  contracting  party  from  the  payment  of  the 
larger  sum,  upon  his  performance  of  the  latter  alternative  to  which 
such  payment  is  annexed ;  nor.  on  the  other  hand,  will  it  deprive 
him  of  his  election  by  compelling  him  to  abstain  from  performing 
whichever  alternative  he  may  choose  to  adopt.'^ 

§  438.  For  the  Reduction  of  an  Existing  Debt  upon  Prompt  Pay- 
ment.— The  second  instance  is  that  of  an  agreement  in  substance 
for  the  reduction  of  an  existing  debt,  on  condition  of  prompt  pay- 
ment by  the  debtor.  A  stipulation  reserving  to  a  creditor  the  right 
to  have  full  payment  of  the  money  due  on  an  exi.sting  contract, 
m  case  there  should  be  a  failure  to  pay  a  smaller  sum  on  a  speci- 
fied day.  is-  not  a  penalty.  Wherever,  therefore,  a  certain  sum  of 
money  is  actually  due.  either  from  a  present  advance  or  from  any 
other  cause,  and  the  creditor  enters  into  an  agreement  with  his 
d(  btor  to  take  a  lesser  sum  in  satisfaction,  provided  that  lesser 
sum  i.s  secured  in  a  specified  manner  and  paid  at  a  specified  day, 
but  if  any  of  the  stipulations  of  the  agreement  are  not  performed 
by  the  debtor  according  to  the  terms  thereof,  then  the  creditor  shall 
be  entitled  to  be  paid  and  to  recover  the  whole  of  the  original 
debt,  such  provision  for  a  return   by  the  creditor  to  his  original 

'See  post.  §§  440-44.5.  where  this  subject  is  more  fully  exaniiiicil.  under  the 
head    of    "liquidated    damajjes." 

'  French  v.  Macale.  2  Dru.  &  W.  274:  Parfitt  v.  Cluniibrc,  L.  R.  15  Eq.  36; 
Smith  y.  Bergengren,  15.3  IMass.  090,  10  L.  R.  A.  708. 


§439  EQUITY    JLHJSPIIUDENCE.  218 

rights  does  not  constitute  a  penalty,  and  equity  will  not  interfere 
to  prevent  its  enforcement.^ 

§  439.  For  Acceleration  of  Payment  of  an  Existing  Debt. — The 
third  instance  of  what  is  not  a  penalty  is  that  of  a  contract,  not 
that  the  amount  of  a  debt  should  be  increased,  but  that  in  a  speci- 
fied event  the  time  for  the  payment  of  a  certain  sum  due  shall  be 
accelerated.  It  is'  therefore  settled  by  the  overwhelming  weight 
of  authority  that  if  a  certain  sum  is  due  and  secured  by  a  bond,  or 
bond  and  mortgage,  or  other  form  of  obligation,  and  is  made  pay- 
able at  some  future  day  specified,  witli  interest  thereon  made  pay- 
able during  the  interval  at  fixed  times,  annually,  or  semi-annually, 
or  monthly,  and  a  further  stipulation  provides  that  in  case  default 
should  occur  in  the  prompt  pajnnent  of  any  such  portion  of  interest 
;)t  the  time  agreed  upon,  then  the  entire  principal  sum  of  the 
ilebt  should  at  once  become  payable,  and  payment  thereof  could 
be  enforced  by  the  creditor,  such  a  stipulation  is  not  in  the  nature 
of  a  penalty,  but  will  be  sustained  in  equity  as  w^ell  as  at  law. 
In  exactly  tlie  same  manner,  if  a  certain  sum  is  due  and  is  secured 
by  any  form  of  instrument,  and  is  made  payable  in  specified  install- 
ments, with  interest,  at  fixed  successive  days  in  the  future,  and  a 
further  stipulation  provides  that  in  case  of  a  default  in  the  prompt 
payment  of  any  such  installment  in  whole  or  in  part  at  the  time 
prescribed  therefor,  then  the  whole  principal  sum  of  the  debt 
should  at  once  become  payable,  and  payment  thereof  could  be 
enforced  by  the  creditor,  such  stipulation  has  nothing  in  common 
with  a  penalty,  and  is  as  valid  and  operative  in  equity  as  at  the 
law.^  The  stipulation  is  sometimes  to  the  efifect  that  if  a  default 
in  i)ayment  continues  for  a  specified  number  of  days,  and  some- 
times that  the  creditor  may  elect  to  treat  the  whole  debt  as  pay- 
able; but  the  same  rule  applies  to  all  STich  forms.  The  provision 
for  accelerating  the  time  of  payment  of  the  whole  debt  in  this 
manner  may,  of  course,  be  waived  by  the  creditor,  especially  when 
it  is  made  to  depend  upon  his  election.-  It  seems  also  that  a  court  of 
e(juity  may  relieve  against  the  effect  of  such  provision,  where  the 
default  of  the  debtor  is  the  result  of  accident  or  mistake,  and  a 
fortiori  when  it  is  procured  by  the  fraud  or  other  inequitable  con- 
duct of  the   creditor  himself."' 

' 'I'lionipson  V.  Hudson,  L.  R.  4  H.  L.  1  (reversing  L.  R.  2  Eq.  612;  L.  R.  2 
Ch.  2.'55)  ;   Walsh  v.  Curtis   (Minn.),  70  N.  W.  .52. 

•Sterne  v.  Beck,  1  I)e  Gex,  .J.  &  S.  505:  Curran  v.  Houston,  201  TU.  442.  0(3  X. 
E.  228;  Connecticut  Mut.  Life  Ins.  Co.  v.  Westerhofl',  58  Neb.  37!»,  78  N.  W.  724, 
76  Am.  St.  Rep.   101  :   Malcolm  v.  Allen,  40  N.  Y.  448. 

-  Langridge  v.  Payne,  2  dolins.  &  H.  423;  see  Moore  v.  Sargent.  112  Ind.  484, 
14    N.    K.    4fiG. 

» Wilcox  V.  Allen,  .3()  Mich.  100;  Martin  v.  Mellville,  11  N.  J.  Eq.  222;   Noyes 


219  COXCKltXlXG    PKXALTlKb    AND   i-oi:i-i:iTLi{i::.-5.  ^  440 

J<  440.  Liquidated  Damages  Described  in  General. — The  fourth 
iu.stciri<'e  U)  be  iiR'iil  ioiieit  of  a  .stipulation  which  is  not  a  penalty 
within  the  scope  and  meaning  of  the  equitable  doctrine  is  tliat  for 
"liquidated  danuiges."  If  the  stipuhition  is  one  properly  for 
liquidated  damages,  and  not  for  a  penalty,  equity  will  not  interfere 
Avith  its  enforcement,  but  if  the  case  was  one  coming  within  the 
eciuitable  jurisdiction,  it  would  be  treated  as  binding,  and  carried 
into  effect  by  a  court  of  equity.  In  general,  where  the  contract 
is  for  the  performance  or  non-performance  of  some  act  other  than 
the  mere  payment  of  money,  and  there  is  no  certain  measure  of 
the  injury  which  will  be  sustained  from  a  violation  of  the  agree- 
ment, the  parties  may,  by.  an  express  clause  inserted  for  thai  pur- 
pose, fix  upon  a  sum  in  the  nature  of  liquidated  damages  which 
shall  be  payable  as  a  compensation  for  such  violation.'  The  (jucs- 
tion  whether  a  sum  thus  stipulated  to  be  paid  is  a  "penalty"  oi' 
is  "liquidated  damages"  is  often  difficult  to  determine.  It  depeiuls. 
however,  upon  a  construction  of  the  whole  instrument,  upon  the 
real  intention  of  the  parties  as  ascertained  from  all  the  lang\iage 
which  they  have  used,  from  the  nature  of  the  act  to  be  performed, 
or  not  to  be  performed,  from  the  consequences  which  naturally 
result  from  a  violation  of  the  contract,  and  from  the  circumstances 
generallj'  surrounding  the  transaction.  It  has  been  repeatedly 
lield  that  the  words  "penalty"  or  "liciuidated"  damages,  if  actual- 
ly used  in  the  instrument,  are  not  at  all  conclusive  as  to  the  char- 
acter of  the  .stipulation.  If  upon  the  whole  agreement  the  court 
can  see  that  the  sum  stipulated  to  be  paid  was  intended  as  a  penalty, 
the  designation  of  it  by  the  parties  as  "liquidated  damages"  will 
not  prevent  this  construction ;  if,  on  the  other  hand,  the  intent  is 
plain  that  the  sum  shall  be  "liquidated  damages,"  it  will  not  be 
treated  as  a  penalty  because  the  parties  have  called  it  by  that 
name.  It  is  well  settled,  however,  that  if  the  intent  is  at  all  doubt- 
ful, the  tendency  of  the  courts  is  in  favor  of  the  interpretation 
wdiich  makes  the  sum  a  penalty."  The  mere  largeness  of  the  sum 
tixed  upon   for  the   doing  or  not  doing   a  jiarticular  act — that    is, 

V.  Clark,  7  raigt-.  17!>.  .32  Am.  Dec.  (i2() ;  Adams  v.  RutluTtunl,  i:?  Or.  78.  8 
Fac.  S9(i.     Nee  post,   §§  82(>.  833. 

1  Woodward  v.  Gyles,  2  Veni.  ll'.t.  2  Scott,  121:  Kccblc  v.  Kivhlc.  S.")  Ala. 
552,  5  South.  14!),  H.  &  B.  (iS ;  .7aq>iith  v.  Hudson,  5  Mich.  123,  H.  &  B.  (52,  per 
Christiancy.  J.  (a  very  able  opinion)  :  Willson  v.  Mayor,  etc.,  of  Baltimore.  8.3 
Md.  '203,  ,^)5  Am.  St.  Rep.  33!),  34  .Ml.  774;  Ward  v.  H.  l\.  B.  Co.,  125  N.  Y. 
230,  2"t)  X.  E.  250;  Wallis  Iron  Works  v.  Monmoulli  Park  Ass'n.,  55  N.  J.  L. 
132,  3!)  Am.  St.  Rep.  020,  20  Atl.  140,  1!)  1..  R.  .\.  4.-)0. 

=  Cushing  V.  Drew,  07  Mass.  445:  Wilhelm  v.  Eaves,  21  Or.  104,  27  Pac.  1053, 
14  L.  R.  A.  207;  Gillis  v.  Hall,  7  Phila.  422,  2  Brewst.  342;  Kunkle  v.  Wherry, 
189  Pa.  St.   108,  42  Atl.   112,  09  Am.  St.  Rep.  802,  11.  &  B.  01. 


§443  EQUITY    JUKlSrKUDEXCE.  220 

the  fact  of  its  beiny  disproportioned  in  amount  to  the  damajre 
Avhich  results  therefrom — will  not  of  itself  be  a  sufficient  reason 
for  holding  it  to  be  a  penalty." 

§  441.  Rules  Determining-  Liquidated  Damages  and  Penalties. — 
AVhile  it  is  imi)0ssible  to  fornuilate  one  universal  criterion  b^'  which 
the  question  of  penalty  or  licjuidated  damages  can  be  determined 
in  every  instance,  certain  ])articular  rules  have  been  well  settled 
by  the  decisions,  which  apply  to  many  important  and  customary 
forms  and  kinds  of  agreement,  although  there  are,  of  course,  num- 
erous cases  which  cannot  easily  be  brought  Avithin  the  operation 
of  either  of  them.  The  following  are  the  rules  which  have  thus 
been  established  by  judicial  authority. 

Fir.'it.  Wherever  the  payment  of  a  smaller  sum  is  secured  by  a 
larger,  the  larger  sum  thus  contracted  for  can  never  be  treated  as 
liouidated  daiuages,  but  must  alwaj's  be  considered  as  a  penalty.^ 

§  442.  Second.  Where  an  agreement  is  for  the  performance  or 
non-perfornumce  of  only  one  act.  and  there  is  no  adecjuate  means 
of  ascertaining  the  precise  damage  which  may  result  from  a  viola- 
tion, the  parties  may,  if  they  please,  by  a  separate  clause  of  the 
contract,  fix  upon  the  amount  of  compensation  payable  by  the  de- 
faulting party  in  case  of  a  breacli;  and  a  stipulation  inserted  for 
such  purpose  will  be  treated  as  one  for  "liquidated  damages," 
unless  the  intent  be  clear  that  it  was  designed  to  be  only  a  penalty.^ 

§  443.  Third.  Where  an  agreement  contains  provisions  for  the 
performance  or  non-performance  of  several  acts  of  different  degrees 
of  importance,  and  then  a  certain  sum  is  stipulated  to  be  paid  upon 
a  violation  of  any  or  of  all  such  })rovisions,  and  the  sum  will  be 
in  some  instances  too  large  and  in  others  too  small  a  compensation 
for  the  injury  thereby  occasioned,  that  sum  is  to  be  treated  as  a 

2  Sun  Printing  &  Pub.  Ass'n  v.  iloore,  1S3  V.  S.  f)42,  22  Sup.  Ct.  240;  Keeble 
V.  Keeble,  85  Ala.  552,  5  South.  140,  H.  &  1^.  OS:  Taylor  v.  Times  Newspaper  Co., 
8:5  Miuu.  523,  85  Am.  St.  Rep.  473,  S(>  X.   \\'.  760. 

MJay  Mfg.  Co.  v.  Camp.  65  Fed.  794,  13  C.  C.  A.  137,  25  U.  S.  App.  134; 
Movvill  V.  Weeks,  70  N.  H.  17S.  4(i  Atl.  32;  Kiulz  v.  Robbins,  12  Wash.  7.  40 
Par-.  415,  50  Am.  St.  Rep.  871,  28  L.  R.  A.  670. 

U^olfe  V.  Peterson,  2  Brown  Pari.  C.  436;  Keeble  v.  Keeble,  85  Ala.  552,  5 
South.    140,   H.    &    B.    08. 

^^  here  a  party  covenants  that  he  will  not  carry  on  his  trade  or  business 
within  certain  limits,  and  adds  a  clause  making  himself  liable  to  pay  a  speci- 
fied sum  upon  violation  of  the  covenant,  such  sum  is  liquidated  damages:  Green 
V.  Price.  13  Mees.  &  W.  695:  McCurr>-  v.  Gibson.  108  Ala.  451.  18  South. 
SOO.  .54  Am.  St.  Rep.  177;  Jacquith  v.  Hudson,  5  :\rich.  123.  11.  &  P..  02. 

P)uilding  Contracts:  If  the  amount  of  damage  caused  by  delay  is  uncertain, 
the  parties  are  allowed  to  stipulate  for  a  lixed  amount:  De(!rniT.  etc..  Co..  v. 
Wickham,  89  Iowa,  720,  52  X.  W.  503. 

For  the  numerous  other  illustrations  of  this  rule,  see  Pom.  Eq.  .Tur.,  3  ed., 
S  442,  notes  1,  a-g. 


221  coxcERNixi;   penai.tiks  and  foi;f1'Itli;i;8.  §  1 1-- 

penalty,  and  not  as  liquidated  dania<>es.  This  rule  has  been  laid 
down  in  a  somewhat  different  form,  as  follows:  Where  the  agree- 
ment contains  provisions  for  the  performance  or  non-performatice 
of  acts  which  are  not  measurable  by  any  exact  pecuniary  standard, 
and  also  of  one  or  more  other  acts  in  respect  of  which  the  damages 
are  easily  ascertainable  by  a  jury,  and  a  certain  sum  is  stipulated 
to  be  paid  upon  a  violation  of  any  or  of  all  these  provisions,  sueli 
sum  must  be  taken  to  be  a  penalty.^ 

5;  444.  Fourth.  Whether  an  agreement  provides  for  the  i)er- 
formance  or  non-performance  of  one  single  act,  or  oi  several  dis- 
tinct and  separate  acts,  if  the  stipulation  to  pay  a  certain  sum  of 
money  upon  a  default  is  so  framed,  is  of  such  a  nature  and  eff'ect 
that  it  necessarily  renders  the  defaultinor  party  liable  in  the  same 
amount  at  all  events,  both  when  his  failure  to  perform  is  com- 
plete, and  when  it  is'  only  partial,  the  sum  must  be  regarded  as  a 
jienalty,  and  not  as  liquidated  damages.  This  rule  plainly  rests 
upon  the  same  grounds  as  the  third,  and  may  be  considered  a  par- 
ticular application  thereof.^ 

§  445.  Fifth.  Finally,  although  an  agreement  may  contain  two 
or  more  provisions  for  the  doing  or  not  doing  dift'erent  acts,  still, 
where  the  stipulation  to  pay  a  certain  sum  of  money  upon  a  default 
attaches  to  only  one  of  these  provisions,  w^hich  is  of  such  a  nature 
that  there  is  no  certain  means  of  ascertaining  the  amount  of  dam- 
au'es  resulting  from  its  violation,^  or  where  all  of  the  provision.s 
are  of  such  a  nature  that  the  damages  occasioned  by  their  breach 
cannot  be  measiu'ed,  and  a  certain  sum  is  made  payable  upon  a 
default  generally  in  any  of  them.- — in  each  of  these  eases,  the 
sum  so  agreed  to  be  paid  may  be  considered  as  liquidated  damage, 
provided,  of  course,  that  the  language  of  the  stipulation  does  not 
bring  it  within  the  limitations  of  the  preceding  fourth  rule.  It  is 
evident  that  this  proposition,  in  both  its  branches,  is  identical  in 
substance  with,  the  second  rule,  heretofore  given,  and  rests  upon 
exactly  the  same  grounds.  The  foregoing  rules  may  be  considered 
as  settled  by  the  strong  preponderance  of  judicial  authority,  and 
they  serve  to  explain  large  and  important  classes  of  cases.     There 

'Kemble  v.  Farren,  6  Bino-.  14];  Willson  v.  Love.  [1896]  1  Q.  B.  020.  over- 
rulinjr  Wallis  v.  Smith,  21  Ch.  D.  243.  8h.  14L  in  so  far  as  that  case  rejected 
the  first  form  of  the  rule  as  stated  in  the  text:  East  Moline  Plow  Co.  v.  Weir 
Plow  Co..  05  Fed.  250:  Wilhelm  v.  Eaves.  12  Or.  104.  27  Pac.  105.3.  14  L.  R. 
A.   297. 

*  Shreve  v.  Brereton,  51  Pa.  St.  175:  Hamaker  v.  Schroers,  49  Mo.  406: 
Johnson  v.  Cook.  24  Wash.  274.  64  Pac.  720. 

'Green  v.  Price,  13  Mees.  &  W.  605.  16  ^^Tees.  &  W.  354. 

*Hall  V.  Crowley,  5  Allen.  304.  SI  Am.  Dec.  704:  Col  heal  v.  Talmage.  9  N.  Y, 
551,  61  Am.  Dee.  716.     See  Wallis  v.  Smith,  L.  R.  21  Ch.  D.  243,  Sh.  141. 


§447  EQUITY    JURlSrUUDEXCK.  222 

are  undoubtedly  numerous  instances  which  cannot  be  easily  re- 
ferred to  either  of  these  rules ;  and  this  must  be  so  almost  as  a 
matter  of  necessity.  Since  agreements  are  of  infinite  variety  in 
their  objects  and  in  their  provisions,  and  .since  the  question  of 
penalty  or  liquidated  damages  is  always  one  of  intention,  depend- 
ing upon  the  tenns  and  circumstances  of  each  particular  contract,, 
there  must  be  many  agreements  which  cannot  be  brought  within 
the  scope  of  an}^  specific  rule,  and  with  which  a  court  can  only 
deal  b}-  applying  the  most  general  canon  of  interpretation. 

§  446.  No  Election  to  Pay  the  Penalty  and  not  to  Perform. — 
With  respect  to  the  effect  of  a  penalty  upon  the  equitable  rights  of 
the  parties,  while  a  court  of  equity  will  relieve  the  party  who  has 
thus  bound  himself  against  a  penalty,  or  will  restrain  its  enforce- 
ment against  him  at  law,  it  will  not,  on  the  other  hand,  permit 
such  party  to  resist  a  specific  performance  of  the  contract  by 
electing  to  pay  the  penalty.  Where  a  person  has  agreed  to  do  a 
certain  act,  or  to  refrain  from  doing  a  certain  act,  and  has  added 
a  penalty  for  the  purpose  of  securing  a  performance,  a  court  of 
equity  will,  if  the  contract  is  otherwise  one  which  calls  for  its 
interposition,  compel  the  party  to  specifically  perform,  or  restrain 
him  from  committing  the  act,  as  the  ease  may  be,  notwithstanding 
the  penalty.  If  the  sum  stipulated  to  be  paid  is  really  a  penalty, 
the  party  will  never  be  allowed  to  pay  it,  and  then  treat  such 
payment  as  a  sufficient  ground  for  refusing  to  perform  his  under- 
taking.^ Where,  however,  the  creditor  party  in  such  a  contract 
has  elected  to  proceed  at  law,  and  has  recovered  a  judgment  for 
damages,  he  cannot  afterwards  come  into  a  court  of  equity,  and 
obtain  a  specific  performance;  he  cannot  have  the  remedy  given 
by  both  courts.- 

§  447.  Otherwise  with  Liquidated  Damages. — Where,  however, 
the  parties  to  an  agreement  have  added  a  provision  for  the  pay- 
ment, in  case  of  a  breach,  of  a  certain  sum  which  is  truly  liquidated 
damages,  and  not  a  penalty, — in  other  words,  where  the  contract 
stipulates  for  one  of  two  things  in  the  alternative,  the  doing  of 
certain  acts,  or  the  payment  of  a  certain  amount  of  money  in  lieu 
thereof, — equity  will  not  interfere  to  decree  a  specific  performance 
of  the  first  alternative,  but  will  leave  the  injured  party  to  .his 
remedy  of  damages  at  law.^     This  is  one  reason  among  many  why 

1  Hardy  v.  :\Iartin,  1  Cox  20.  2  Seotl,  123:  Fmicli  v.  :\Iacale.  2  Dm.  &  War. 
274:  Dooloy  v.  Watson.  1  (Jray.  414:  Amanda  Consol.  (i.  ^l.  Co.  v.  People's  M.  & 
M.  Co.,  28  Colo.  251,  64  Pae.  218. 

-Fox  V.  Scard,  33  Beav.  327,  per  Sir  J.  Eomilly.  M.  R. 

1  Woodward  v.  Gyles,  20  Vern.  119,  2  Scott,  121:  Amanda  Consol.  G.  M.  Po, 
V.  People's  M.  &  M.  Co.,  28  Colo.  2.51,  64  Pae.  218:  Halin  v.  Concordia  Soc,  4t. 
Md.    460. 


22o  CONCKKNINU    PENALTIES    AND    FOKFEITUIIES. 


450 


courts  of  equity   incline  strongly  to  construe  such  stipulations  as 
Droviding  for  a  penalty  rather  than  for  liquidated  damages. 

§  448.  Forfeiture. — This  subject  includes  two  entirely  distinct 
(questions,  namely:  When  will  equity  interfere  to  aid  the  default- 
ing party,  and  to  relieve  against  a  forfeiture  by  setting  it  aside, 
or  by  allowing  him  to  go  on  and  perform  as  though  it  had  not  oc- 
curred, or  by  restraining  the  other  party  from  enforcing  it?  and 
when  Avill  equity  interfere  at  the  suit  of  the  creditor  party,  and  by 
its  decree  actively  enforce  and  carry  into  effect  the  forfeiture 
against  the  one  in  default?  The  former  of  these  questions  will 
be  examined  first  in  order. 

5<  449.  When  Equity  will  Relieve. — It  has  been  repeatedly  as- 
sumed and  asserted  by  numerous  judicial  dicta,  and  the  statement 
seems  to  have  been  accepted  by  many  text-writers  as  correct,  that 
a  court  of  equity  is  governed  by  the  same  doctrine  with  respect 
to  relief  against  forfeitures  and  against  penalties.  This  is  true, 
perhaps,  when  considered  simply  as  the  announcement  of  a  rule 
in  its  most  general  form;  but  in  its  practical  application  it  is 
subject  to  such  important  exceptions  and  limitation  that  there  is, 
in  fact,  c  marked  distinction  betAveen  forfeitures  and  penaltieK  in 
the  view  with  which  they  are  respectively  regarded  and  dealt  vvith 
by  equity.  We  have  seen  that  wherever  a  certain  sum  is  stipulated 
to  be  paid  as  security  for  the  performance  of  some  act  which  is 
capable  of  pecuniary  measurement,  so  that  the  compensation  in  the 
nature  of  damages  for  a  non-performance  can  be  ascertained  with 
reasonable  exactness,  the  certain  sum  is  taken  to  be  a  penalty,  and 
that  courts  strongly  lean  in  favor  of  a  construction  which  shall 
make  it  a  penalty,  so  that  it  may  be  disregarded.  This  is  not 
universally  true,  is  not  the  practical  test  in  case  of  forfeitures,  al- 
though, perhaps,  the  court  may  use  the  same  general  formula  ot. 
words  as  applicable  to  both  instances. 

§450.  Ground  and  Extent  of  Such  Relief.— It  is  well  settled 
that  where  the  agreement  secured  is  simply  one  for  the  payment 
of  money,  a  forfeiture  either  of  land,  chattels,  securities,  or  money, 
incurred  by  its  non-performance,  will  be  set  aside  on  behalf  of  the 
defaulting  party,  or  relieved  against  in  any  other  manner  made 
necessary  by  the  circumstances  of  the  case,  on  payment  of  the 
debt,  interest,  and  costs,  if  any  have  accrued,  unless  by  his  in- 
equitable conduct  he  has  debarred  .himself  from  the  remedial  right, 
or  unless  the  remedy  is  prohibited,  under  the  special  circiimstances 
of  the  case,  by  some  other  controlling  doctrine  of  equity.^  Where 
the   stipulation,    however,    is    intended    to    secure   the    performance 

'Tihbells  V.   Cato.  GG  N.  II.  5.50.  22  Atl.  559;   Noyes  v.  Anderson,   124  N.  Y, 
175,  -iG  X.  E.  31G,  21  Am.  St.  Rep.  G57. 


§  451  EQUITY    JUKISrUUDE-N-CK.  22i 

or  non-performance  of  some  act  in  pais,  it  is  impossible  to  lay 
down  an}"  such  general  rule  with  which  all  the  classes  of  decisions 
shall  harmonize.  It  is  certain  that  if  the  act  is  of  such  a  nature 
that  its  value  cannot  be  pecuniarily  measured,  if  the  compensation 
for  a  default  cannot  be  ascertained  and  fixed  with  reasonable 
pi'eeision,  relief  against  the  forfeiture  incurred  by  its  non-perform- 
ance will  not,  under  ordinary  circumstances,  be  given.^  The  affirm- 
ative of  this  proposition  cannot  be  stated  as  a  rule  with  the  same 
generality.  It  has,  indeed,  been  said  that  equity  would  relieve 
against  forfeitures  in  all  cases  where  compensation  can  be  made; 
bnt  this  is  clearly  incorrect.  It  is  well  settled  that  a  court  of  equity 
will  not,  under  ordinary  circumstances,  set  aside  forfeitures  in- 
curred on  the  breach  of  many  covenants  contained  in  leases,  or  of 
stipulations  in  other  agreements,  although  the  compensation  for 
the  resulting  injury  could  be  ascertained  without  difficulty;"  and 
on  the  other  hand,  the  relief  is  often  given,  as  will  appear  from 
subsequent  paragraphs,  where  the  agreement  secured  by  the  clause 
of  forfeiture  is  not  one  expressly  and  simply  for  the  payment  of 
money.  The  following  proposition  seems  to  be  a  conclusion  fairly 
drawn  from  all  the  decisions  upon  the  subject,  and  to  be  an  ac- 
curate and  comprehensive  statement  of  the  general  doctrine  as  set- 
tled by  them,  namely:  In  the  absence  of  special  circumstances 
giving  the  defaulting  party  a  higher  remedial  right,  a  court  of 
equity  will  set  aside  or  otherwise  relieve  against  a  forfeiture,  both 
when  it  is  incurred  on  the  breach  of  an  agreement  expressly  and 
simply  for  the  payment  of  money,  and  also  on  the  breach  of  an 
agreement  of  which  the  obligation,  although  indirectly,  is  yet  sub- 
stantially a  pecuniary  one. 

iv  451.  Forfeiture  Occasioned  by  Accident,  Fraud,  Surprise,  or 
Ignorance. — There  are,  as  intimated  above,  special  circumstances 
which  will  entitle  a  defaulting  party  to  relief  against  a  forfeiture 
in  cases  where  otherwise  it  would  not  be  granted.  Although  the 
agreement  is  not  one  measurable  by  a  pecuniary  compensation,  still, 
if  the  party  bound  by  it  has  been  prevented  from  an  exact  ful- 
fillment, so  that  a  forfeiture  is  incurred,  by  unavoidable  accident, 
by  fraud,  by  surprise,  or  by  ignorance,  not  willful,  a  court  of  equity 
will  interpose  and  relieve  him  from  the  forfeiture  so  caused,  upon 
his  making  compensation,  if  necessary,  or  doing  everything  else 
within  his  power.^    Also,  in  the  same  class  of  cases,  and  upon  the 

==  Croft  V.  Goldsmid.  24  Beav.  312:  Klein  v.  New  York  Life  Ins.  Co.,  104  U. 
S.  88,  (non-payment  of  life  insurance  premium)  ;  Skinner  v.  Dayton,  2  Johns. 
Ch.    ,5^6. 

*  White   V.    Warner^   2   ]\Ier.    459. 

'Hill  V.  Barclay,  18  Ves.  58;  Wing  v.  Harvey,  5  De  Gex,  M.  &  G.  26.5:  Kopper 


22b  coxcEUXiXG   ri:xAi,Tii:s  and  i-oiiFinTuitEs.  §  133 

same  equitable  grounds,  if  there  has  been  a  breach  of  the  au'ree- 
ment  sufficient  to  cause  a  forfeiture,  and  the  party  entitled  thereto, 
either  expressly  or  by  his  conduct,  waives  it  or  acquiesces  in  it,  he 
will  be  precluded  from  enforcing  the  forfeiture,  and  equity  will 
aid  the  defaulting  party  by  relieving  against  it,  if  necessary.-  For 
a  like  reason  a  court  of  equity  may  set  aside  or  disregard  a  for- 
feiture occasioned  by  a  failure  to  comply  with  the  very  letter  of 
an  agreement  when  it  has  nevertheless  been  substantially  per- 
formed.^ 

§  452.  Forfeiture  Willful  or  through  Negligence. — While  a  de- 
faulting party  may  thus  acquire  a  right  to  the  equitable  relief  from 
the  conduct  of  the  other  party,  he  may  also  lose  the  right,  which 
otherwise  would  have  existed,  as  a  consequence  of  his  own  con- 
duct. In  a  case  where  an  agreement  creates  a  mere  pecuniary 
obligation,  so  that  a  forfeiture  incurred  by  its  breach  would  ordi- 
narily be  set  aside,  a  court  of  equity  will  refuse  to  aid  a  defaulting 
party,  and  relieve  against  a  forfeiture,  if  his  violation  of  the  con- 
tract was  the  result  of  gross  negligence,  or  was  willful  and  per- 
sistent. He  who  asks  help  from  a  court  of  equity  must  himself  be 
free  from  inequitable  conduct  with  respect  to  the  same  subject- 
matter.^  Having  thus  exhibited  the  doctrine  in  its  general  form,  I 
shall  briefly  describe  the  most  important  instances  of  its  applica- 
tion, namely:  to  conditions  and  covenants  in  leases;  to  conditions 
in  contracts  for  the  sale  of  land;  to  particular  stipulations  in 
other  contracts;  to  the  forfeiture  of  shares  of  stock:  and  to  for- 
feitures' created  by  statute. 

§  453.  Forfeitures  Arising  from  Covenants  in  Leases. — Where 
a  lease  contains  a  condition  that  the  lessor  may  re-enter  and  put 
an  end  to  the  lessee's  estate,  or  even  that  the  lease  shall  be  void, 
Uijon  the  lessee's  failure  to  pay  the  rent  at  the  time  specified,  it  is 
well  settled  that  a  court  of  equity  will  relieve  the  lessee  and  set 
aside  a  forfeiture  incurred  by  his  breach  of  the  conditions,  whether 
the  lessor  has  or  has  not  entered  and  dispossessed  the  tenant.  This 
rule  is  based  upon  the  notion  that  such  condition  and  forfeiture 
are  intended  merely  as  a  security  for  the  payment  of  money.^ 

V.  Dyer,  59  Vt.  477,  59  Am.  St.  Rep.  742.  12  Atl.  4,  H.  &  B.  IfiG,  1  Scott  400 
(an  instructive  opinion)  ;  IMactier  v.  Osborn.  146  Mas.s.  399,  15  X.  E.  ()41,  4 
Am.   St.   Kep.  323.     See   §§  826.   833.   post. 

-  Pokegania  Sutjar  Pine  Lumber  Co.  v.  Klamath  River  L.  &  T.  Co.,  96  Fed.  34; 
Helme  v.  Philadelphia  Ins.  Co.,  61   Pa.  St.   107.  100  Am.  Dec.  621. 

"Bliley  v.  Wheeler,  5  Colo.  Apj).  287,  38  Pac.  603:  Ha<>ar  v.  Buck.  44  Vt.  285, 
8    Am.    Rep.    368. 

^  Hancock  v.  Carlton.  6  Gray,  39:  X.  Y.  &  X.  F..  R.  R.  Co.  v.  City  of  Providence, 
16   R.    r.    746,    19    Atl.    759. 

*Lundin  v.   Schoeffel,   167  IMass.   465.   45  X.  E.   933;     Sunday  Lake  Min.   Co. 
V.  Wakefield,  72  Wis.  204,  39  X.  W.  136. 
15 


§  457  EQUITY    JURISPRUDENCE.  2'2G 

§  454.  Equity  will  not,  under  ordinary  circumstances,  relieve 
against  a  forfeiture  arising-  from  the  breach  of  other  covenants 
contained  in  a  lease,  on  the  ground  that  no  exact  compensation 
can  be  made.  Among  these  covenants  for  a  breach  of  w^hich  no 
relief  can  ordinarily  be  given  is  that  to  repair  generall}-,  or  to 
make  specific  repairs,  or  to  lay  out  a  certain  sum  of  money  in 
repairs  or  erections  within  a  specific  time -j^  the  covenant  to  in- 
sure;- the  covenant  not  to  assign  without  license;^  and  in  other 
covenants  of  a  special  nature.*  It  should  be  observed,  however, 
that  in  all  cases  of  this  class  relief  may  be  given  when  the  breach 
was  the  result  of  fraud,  mistake,  accident,  surprise,  and  the  like, 
or  was  acquiesced  in  or  waived  by  the  lessor.^ 

§  455.     From  Contracts  for  the  Sale  of  Land. — ^ 

§  456.  From  Other  Contracts. — In  all  other  special  contracts 
containing  provisions  for  a  forfeiture,  the  same  general  principle 
must,  of  course,  be  applied,  although  there  may  be  some  doubt 
or  difficulty  in  the  application.  It  is  clear  that  if  the  contract  be 
of  such  a  nature  that  a  clause  for  the  payment  of  a  certain  sum 
upon  its  violation  would  be  pronounced  a  provision  for  liquidated 
damages,  then  a  court  of  equity  would  grant  no  relief  against  a 
forfeiture  incurred  by  its  non-performance.  On  the  other  hand, 
if  the  obligation  created  by  the  contract  is  substantially,  though 
perhaps  indirectly,  a  pecuniary  one,  then  a  court  of  equity  un- 
doubtedly will  aid  the  defaulting  party  by  setting  aside  a  forfei- 
ture. Between  these  two  extremes  there  is  a  mass  of  agreements 
with  respect  of  which  the  action  of  the  courts  in  giving  relief  may 
perhaps  be  regarded  as  somewhat  discretionary.  The  mere  fact 
that  a  certain  sum  stipulated  to  be  paid  upon  a  violation  would 
be  treated  as  a  penalty  is  not  of  itself  decisive  in  favor  of  a  relief 
from  forfeiture  in  similar  cases.  The  examples  given  in  the  note 
will  serve  to  illustrate  the  action  of  courts  in  dealing  with  such 
agreements.^ 

§  457.  Of  Shares  of  Stock. — A  forfeiture  of  the  shares  of  stock 
in  a  corporation,  regularly  and  duly  incurred  by  the  stockholder's 

'Hill  V.  Barclay,  16  Ves.  403,  406,  18  Ves.  58,  61;  Croft  v.  Goldsniid,  24 
Beav.    312.. 

^Reynolds  v.  Pitt,  19  Ves.  134;    White  v.  Warner,  2  Mer.  459. 

•■'Barrow   v.   Trustees    (1891),   1   Q.   B.   417. 

'Hills  V.  Rowland,  4  De  Gex,  M.  &  G.  430;  Maeher  v.  Foundling  Hospital. 
1  Ves.  &  B.  187 ;  Monroe  v.  Armstrong,  96  Pa.  St.  307. 

*  See  ante,  §  451,  and  case  in  note. 

'  See  post,  §  1408,  note. 

'  Wilson  V.  Mayor,  etc.,  of  Baltimore.  83  Md.  203.  .-5  Am.  St.  Rep.  330.  34  Atl. 
774  (relief)  ;  Gregg  v.  Landis,  19  X.  J.  Eq.  850.  21  N.  J.  Eq.  494,  514  (no 
relief)  ;  Tennessee  Mfg.  Co.  v.  James.  91  Tenn.  154,  18  S.  W.  262.  30  Am.  St. 
Hop.  865,   15   L.   R.   A.  211    (no  relief);   Henry  v.  Tupper,  29  Vt.  358    (relief). 


227  COXCERXIXG    PEXALTIES    AND    FORFEITURES.  ,  §  i")!) 

or  subscriber ■«  failure  to  pay  the  calls  or  iustalhnents  thereon  ac- 
cording to  the  charter  or  by-laws  of  the  company,  will  not  be  set 
aside  or  relieved  against  by  a  court  of  equity;  and  the  same  is 
true  of  a  forfeiture  of  public  and  governmental  stock  by  reason 
of  a  failure  to  comply  with  the  terms  of  the  loan  concerning  pay- 
inent.^ 

§  458.  When  Imposed  by  Statute. — Finally,  whenever  any  for- 
feiture is  provided  for  by  a  statute,  to  be  incurred  on  the  doing 
oi  not  doing  some  specified  act,  equity  can  afford  no  relief  from  it, 
and  the  same  is  true  of  a  statutory  penalty.  A  court  of  equity  has 
no  power  to  disregard  or  set  aside  the  express  terms  of  statutory 
legislation,  however  much  it  may  interfere  with  the  operation  of 
common-law  rules/ 

§  459.  Equity  will  not  Enforce  Forfeitures. — The  second  ques- 
tion which  it  Avas  proposed  to  consider  is.  When  will  a  court  of 
equity  by  its  decree  actively  enforce  or  carry  into  effect  a  for- 
feiture? The  general  answer  to  this  question  is  easy  and  clear. 
It  is  a  well-settled  and  familiar  doctrine  that  a  court  of  equity  will 
not  interfere  ,on  behalf  of  the  party  entitled  thereto,  and  enforce 
a  forfeiture,  but  will  leave  him  to  his  legal  remedies,  if  any,  even 
though  the  case  might  be  one  in  which  no  equitable  relief  would 
be  given  to  the  defaulting  party  against  the  forfeiture.  The  few 
apparent  exceptions  to  this  doctrine  are  not  real  exceptions,  since 
they  all  depend  upon  other  rules  and  principles.^  The  reasons  of 
the  doctrine  are  to  be  found  in  the  universal  principle  that  a 
court  of  equity  refuses  to  aid  any  party  who,  by  the  remedy  which 
ho  seeks  to  obtain  against  his  adversary,  is  not  himself  doing  equity, 
or  who  does  not  come  before  the  court  "with  clean  hands," — the 
same  principle  upon  which  the  court  acts  when  it  refuses  to  speci- 
fically enforce  a  contract  which  is  unequal,  unjust,  or  has  any 
inequitable  features  and  incident. 

*  Sparks  v.  Company,  etc.,  of  Liverpool  Water  Works,  13  Ves.  428,  433,  434: 
Southern  B.  &  L.  Ass'n.  v.  Anniston,  101  Ala.  582,  46  Am.  St.  Rep.  138,  15  Soutli. 
123,  29  L.  R.  A.  120. 

'State  V.  McBride,  70  Ala.  51:  State  v.  Hall.  70  Miss.  678,  13  South.  39. 

-"Oil  Creek  R.  R.  v.  Atlantic,  etc.  R.  R.,  57  Pa.  St.  65:  Worthington  v.  Moon. 
53  N.  J.  Eq.  46,  30  Atl.  251;  Craig  v.  Hukill,  37  W.  Va.  250,  16  S.  E.  3();! 
H.  &  B.  60. 


EQUITY    JL'RISPKUDENCK.  Tli: 

SECTION  II. 

CONCERNING    ELECTION. 

ANALYSIS. 

§  461.  Questions    stated. 
§§  462-465.  Rationale  of  the  (loctriue  discussed. 

^  463.  In  the  Roman  law. 

i)  464.  Foundation,  the  presumed  intention  of  the  donor. 

§  465.  The  true  foundation  is  the  principle,  He  who  seeks   equity   must 
do    equity. 
§S  466-470.  Meaninir,  extent,  and  efl'ects  of  the  doctrine. 

§  466.  Election  in  conformity  with   instrument  of  donation. 
§§  467,468.  Election   in   opposition   thereto:    rules;    compensation. 

§  469.  No  election   unless  compensation   can   be   inade. 

§  470.  Applies  to  all  instruments  of  donation. 
§§  471-505.  Applications:    classes   of  cases   in   wliicli   the   necessity  for  an   elec- 
tion  does  or  does  not   arise. 

§  472.   Fundamental  rule;     what  creates  the  necessity   for  an  election. 
§§  473-475.  Subordinate   rules   of   interpretation. 

§§  473.  474.  Donor  lias  only  a  partial   interest ;     evidence  of  intention  not  ad- 
missible;   a  general  gift  raises  no  election. 

*i  475.  Other    special    rules    of    interpretation. 
§§  476-486.  First  class:    Donor  gives  property  wholly  another's. 

§  477.  Ordinary  case,  gift  of  specific  property. 
§§  478-480.  Cnder  appointments  in  pursuance  of  powers. 

§§  481-486.  Where   testator   has   attempted   to   give   property   by   a   will   whicli 
is   inefiectual. 

S  482.   Infancy   or  coverture   of  testator. 

§   483.  Will   valid   as   to   personal,   invalid   as   to   real   estate. 

§  484.  Will   invalid  as  to  property  in  another  state  or  covmtry. 

S  485.  Will    devising    after-acquired    lands. 

§  486.  Will    of    copyholds. 
§'S  487-505.  Hecond  class:     Donor  gives  property  in  which  he  has  a  partial  in- 
terest. 

§  488.  The  general  "doctrine. 

§  489.  Donor  owns  only  an  undivided  share. 

§   490.  Donor  owns  only  a  future  interest. 

§  491.  Devise  of  lands  encumbered. 
§§  492-502.  Dower;     widow's    election    between    dower    and    gifts    by    her    hus- 
band's  A\dll. 

§  493.  The   general    rule. 

§  494.  Contrarj'  legislation  in  the  various  states. 
§§  495-502.  Classes   of   testamentary   dispositions. 

§  496.  Express    declaration. 

§  497.  Devise  of  a  part  of  testator's  land  to  the  widow,  and  the  rest  to 
othei's. 

§  498.  Devise  to  the  widow  for  life. 

§  499.  Devise  in  trust  to  sell,  or  with  a  power  of  sale. 

§  500.  (iift  of  an  annuity,  etc.,  to  widow,  charged  upon  the  lands  devised 
to    others. 


22^  tONCEKNING    Kl.KCTIOX.  §  -l^iS 

§  501.  Devise  with  express  power  ot  occupyinj,'.  leasiiifj,  etc. 

§  502.  Devise  to  widow  and  others  in  equal  shares. 

§§  503-505.  Election    in   devises   of   community   property. 

§  50tj.  The  remaining  qviestions  stated. 

§§  5()7-510.  Who  may  elect;    married  women;    infants;    lunatics. 

§§  511,512.  Rights  and  privileges  of  persons  bound  to  elect. 

§   513.  Time  of  election;    state  statutes. 

S$  514,515.  Mode   of   election,   express   or   implied;     conduct   amounting   to   an 

election. 

§§  51U,  517.  Ell'ects  of  an  election. 

§§  518,519.  Equitable  jurisdiction  in  matters  of  election. 

§  462.  Rationale  of  the  Doctrine. — The  essential  facts  present- 
ing an  occasion  for  the  doctrine  of  election  are:  A  gives  to  B 
property  belonging  to  C,  and  by  the  same  instrnment  gives  to  C 
other  property  belonging  to  himself.  The  equitable  doctrine  upon 
these  facts,  briefly,  is:  C  has  two  alternatives:  1.  He  may  elect 
to  take  under  the  instrument,  and  to  carry  out  all  its  provisions; 
ho  will  then  take  A's  property,  which  was  given  to  him.  and  B 
will  take  C's  property.  2.  "He  may  elect  against  the  instrument. 
In  tliat  ease  he  will  not  wholly  forfeit  the  benefits  intended  to  be 
conferred  upon  him ;  he  must  surrender  only  so  much  of  such 
benefits  as  may  be  necessary  to  compensate  B  for  the  disappoint- 
ment he  has  suffered  by  C's  election  to  take  against  the  instru- 
ment.    .     .     . 

§  465.  True  Foundation. —  ...  I  venture  the  assertion  that 
the  only  true  basis  upon  which  the  doctrine  can  be  rested  is  that 
maintained  in  the  preceding  chapter,  namely,  the  grand  principle 
that  he  who  seeks  equity  must  do  equity.  This  principle  has  or- 
dinarily been  regarded  simply  as  furnishing  a  guide  to  the  courts 
in  their  apportionment  of  equitable  relief  among  the  parties  in  a 
great  variety  of  eases;  but,  as  I  have  shown,  it  is  also  the  un- 
deniable source  of  certain  distinctively  equitable  doctrines.  There 
is  no  doctrine  more  unmistakably  and  completely  derived  fi'om  this 
grand  principle  than  that  of  election.  The  whole  theory  and  pro- 
cess of  election  is  a  practical  application  of  the  maxim.  He  Avho 
.^eeks  equity  must  do  equity.  A  party  asserts  his  claim  to  certain 
property:  in  order  that  he  may  obtain  any  relief,  he  must  acknowl- 
edge and  make  provision  for  the  equitable  rights  of  other  parties 
o'c-rived  from  the  same  instrument,  and  to  that  end  must  make  his 
election,  so  that  in  either  choice  those  rights  shall  be  preserved. 
The  very  election  which  he  is  obliged  to  make  consists  in  the  "do- 
ing equity"  to  others  which   the  principle  demands.     .     .     . 

i;  468.  Compensation  the  Result. — In  any  case  for  an  election, 
M-here  the  party  upon  whom  the  necessity  devolves  elects  to  take 
in  opposition  to  the  instiument  of  donation,  and  therefore  retains 


§  412  EQUITY    JUKIbl'UlDEXCE.  230 

his  own  estate  which  had  been  bestowed  upon  the  third  person, 
does  he  thereby  lose  all  claim  upon  or  benefit  of  the  donor's  prop- 
erty given  to  himself?  or  does  he  only  lose  such  part  of  it  or  so 
much  of  its  value  as  may  be  needed  to  indemnify  the  disappointed 
third  person?  In  adjusting-  the  equities  between  himself  and  the 
third  person,  must  he  necessarily  surrender  to  that  person  the 
entire  gift  made  to  himself?  or  must  he  simply  make  adequate  com- 
pensation ?  Few,  if  any,  of  the  cases  have  required  a  decision  of 
this  question  ;^  and  what  has  been  said  concerning  it  has  chiefly 
been  by  way  of  argument  and  of  judicial  dictum.  The  rule  may  be 
regarded,  however,  as  settled  by  the  weight  of  judicial  opinion  very 
strongly  in  favor  of  compensating  the  donee  who  is  disappointed 
by  an  election  against  the  instrument.  If  the  gift  which  he  takes 
by  Avay  of  substitution  is  not  sufficient  in  value  to  indemnify  him 
for  that  which  he  has  lost,  he  of  course  retains  the  Mdiole  of  it." 

§  470.  Doctrine  Applies  Both  to  Wills  and  Deeds. — It  may  be 
added  that  the  doctrine  of  election,  as  generally  described  in  the 
foregoing  paragraphs,  applies  to  all  ihstruments  of  donation, — to 
deeds,  settlements,  and  the  like,  as  well  as  to  wills, — although  the 
cases  involving  it  have  most  frequently  arisen  under  wills. ^     .     . 

§  472.  Fundamental  Rule. — The  first  and  fundamental  rule,  of 
which  all  the  others  are  little  more  than  corollaries,  is:  In  order 
to  create  the  necessity  for  an  election,  there  must  appear  upon  the 
face  of  the  will  itself,  or  of  the  other  instrument  of  donation,  a 
clear,  unmistakable  intention,  on  the  part  of  the  testator  or  other 

^  The  reason  i^  very  plain.  A  person  compelled  to  elect  will  generally  be 
influenced,  in  making  the  election,  solely  by  his  gwti  pecuniary  interests.  If 
(lie  property  bequeathed  to  himself  by  a  will  is  more  valuable  than  his  own. 
he  naturally  elects  to  take  under  the  will,  and  lets  his  own  estate  go  to  the 
third  person.  If  the  property  bequeathed  to  himself  be  less  valuable  than  his 
own,  lie  elects  to  take  against  the  will  and  retains  his  o^\^l.  It  is  then  of  no 
consequence  whether  the  principle  adopted  with  reference  to  the  bequest  made 
to  iiimself  be  forfeitiu'e  or  compensation,  since  the  whole  subject-matter  is  in- 
sulRcient  to  indemnify  the  disappointed  legatee.  In  other  words,  the  third  person 
takes  all  the  bequest  in  question,  and  must  be  satisfied  with  it,  for  he  has  no 
right  to  anything  more.  The  question  would  arise  in  such  a  case  as  the  following: 
A  testator  bequeaths  fifty  thousand  dollars  to  A,  and  devises  to  B  an  old  family 
estate  of  which  A  is  the  owner  in  fee.  and  which  is  worth  only  twenty  thousand 
dollars.  A,  from  attachment  to  the  family  estate,  elects  to  keep  it,  and  thus  to 
take  in  opposition  to  the  will.  Is  B  then  entitled  to  the  whole  fifty  thousand 
dollars?  or  only  to  twenty  thousand  dollars  of  it. — the  value  of  the  estate 
wliich  he  loses  by  the  election. — so  that  the  balance  of  the  thirty  thousand  dollars 
wouKl  still  belong  to  A?  The  latter  alternative  is  the  view  taken  by  the  weight 
of  authority.     Barrier  v.   Kelly    (Miss.).  ;^,'5   South.   074. 

^Rogers  v.  .Tones,  3  Ch.  Div.  OSS,  H.  &  B.  1.31:  Barrier  v.  Kelly  (Miss.),  33 
.South.  974. 

'Mosley  v.   Ward,  29  Beav.  407. 


•^;J1  CONCKUXIXG    KLECTIOX.    ,  §   ^'^•'> 

donor,  to  dispose  of  property  which  is  in  fact  not  his'  own.  Tliis 
intention  to  dispose  of  property  which  in  fact  belonj>s  to  another, 
and  is  not  within  the  donor's  power  of  disposition,  must  appear 
from  lanKugage  of  the  instriinient  which  is  unequivocal,  which 
leaves  no  doubt  as  to  tlie  donor's  design;  the  necessity  of  an  elec- 
tion can  never  exist  from  an  uncertain  or  dubious  interpretation 
v)f  the  clause  of  donation.  It  is  the  settled  rule  that  no  ease  for 
an  election  arises  unless  the  gift  to  one  beneficiary  is  irreconcilable 
with  an  estate,  interest,  or  right  which  another  donee  is  called  upon 
to  reiincpiish;  if  both  gifts  can,  upon  any  interpretation  of  which 
the  language  is  reasonably  susceptible,  stand  together,  then  an  elec- 
tion is  unnecessary.  The  instrument  may  declare  in  express  terms 
that  the  gift  to  A  must  be  accepted  by  him  in  lieu  of  his  own  in- 
terest, which  is  thereby  transferred  to  B,  and  then  no  possible 
doubt  could  exist.  But  this  direct  mode  of  exhibiting  the  donor's 
purpose  is  not  indispensable.  It  is  sufficient  if  the  dispositions  of 
the  instrument,  fairly  and  reasonably  interpreted,  exhibit  a  clear 
intention  of  the  donor  to  bestow  upon  B  some  estate,  interest,  or 
right  of  property,  which  is  not  the  donor's,  but  which  belongs  to  A. 
<ind  at  the  same  time  to  give  to  A  some  benefits  derived  from  the 
donor's  own  property.^  It  is  immaterial,  however,  whether  the 
d-onor  knew  the  property  not  to  be  his  own.  or  erroneously  con- 
ceived it  to  be  his  own  -.  for  in  either  case,  if  the  intention  to  dispose 
of  it  clearly  appears,  the  necessity  for  an  election  exists.- 

i;  473.  Rule  of  Interpretation ;  Donor  has  a  Partial  Interest ; 
Strong  Leaning-  against  Election;  Extrinsic  Evidence  of  Intention. 
—  ...  If  the  language  of  the  donation  is  ambiguous,  so  that 
its  correct  interpretation  is  at  all  doubtful,  it  is  now  a  firmly  es- 
tablished rule  that  parol  evidence  of  matters  outside  the  instru- 
ment cannot  be  admitted  for  the  purpose  of  showing  an  intent  of 
the  donor  to  dispose  of  property  which  he  knew  did  not  belong  to 
liim.  and  thus-  to  create  the  necessity  for  an  election.  The  intent 
of  the  donor  to  dispose  of  that  wdiich  is  not  his  ought  to  appear 
upon  the  instrument.  There  were  early  decisions  which  acted  upon 
another  view,  aud  received  such  evidence  as  controlling,  but  they 
have  been  completely  overruled  by  subsequent  authorities.  Of 
course,  extrinsic  evidence  is  ahvays  admissible  in  such  cases,  as 
well  as  in  all  others  arising  upon  wills  and  deeds,  in  order  to  show 
the    surrounding    circumstances,    the   nature    and    situation    of    the 

'  Coflriiifrhon  V.  l.indsay,  L.  R.  8  Ch.  .578.  ,587;  Fifielcl  v.  Van  Wyck.  94  Va. 
557,  5G2,  (54  Am.  St.  Rep.  745.  27  S.  E.  440:  Hattersley  v.  Bissptt,  51  X.  J.  Kq. 
597,  40  Am.  St.  Rep.  532.  29  Atl.  187. 

-Cooper  V.  Cooper,  L.  R.  G  Ch.  15,  16,  20;  Barrier  v.  Kelly  (Miss.),  33  South. 
974. 


§  484  .  EliUITY    JUKItiPltUDE^CE.  333 

property,  the  relations  of  the  donor  to  the  beneficiaries,  and  the 
like  facts',  which  place  the  court  in  the  shoes  of  the  donor;  but  such 
evidence  can  go  no  further. '^ 

§  476.  First  Class  of  Cases. — Cases  in  which  the  donor  assumes 
to  give  specific  property  belonging  entirely  to  another,  where  he 
himself  has  no  interest  in  it,  and  no  power  of  disposition  over  it. 

§  477.  Ordinary  Case:  Gift  of  Specific  Property. — The  simplest 
case  is  that  in  which  the  donor,  by  language  of  description  sufficient 
to  designate  the  subject-matter,  and  by  terms  of  donation  sufficient 
to  effect  a  transfer  if  they  operated  upon  property  of  his  own,  be- 
stows upon  B  some  specfic  estate,  interest,  or  fund,  which  in  fact 
belongs  entirely  to  A,  and  by  the  same  instrument  confers  upon  A 
some  benefit  out  of  the  donor's  own  property.  Under  these  cir- 
cumstances a  case  for  an  election  always  arises.  The  whole  effect 
depends  upon  the  cjuestion  whether  there  is  such  a  gift ;  and  if  so, 
there  is  really  no  room  for  interpretation  or  construction.  No  dis- 
cussion of  this  case  is  needed.^ 

§  484.  Will  Invalid  in  Another  Country  or  State. — There  is  a 
second  case  Avhich  may  and  does  arise  in  this  country  and  in  Eng- 
land, having  been  affected  by  no  statute.  A  testator  has  property 
situated  in  two  states  or  countries ;  he  makes  a  will,  the  language 
of  which,  either  by  general  or  particular  description,  applies  to 
both  classes  of  projDerty,  by  which  he  devises  his  lands  away  from 
jiis  heir  to  a  stranger,  and  at  the  same  time  gives  a  legacy  or  other 
benefit  to  his  heir;  the  will  is  valid  and  operative  b}-  the  laAV  of  the 
state  or  country  in  which  it  is  made,  so  that  all  the  testator's  prop- 
erty situated  therein  is  eft'ectively  disposed  of ;  but,  either  from 
the  neglect  of  proper  modes  of  execution,  or  of  the  requisite  form 
of  description  or  disposition,  the  will  is  not  valid  and  operative  by 
the  law  of  the  other  state  or  country  to  carry  the  lands  of  the 
testator  situated  therein  ;  the  attempted  devise  of  the  lands  situated 
in  that  other  country  or  state  is  therefore  void,  and  the  lands 
themselves  descend  to  the  heir  at  law.  The  question  presented 
ni)on  these  facts  is,  whether  the  heir  is  bound  to  elect  between 
the  gift  contained  in  the  will  and  the  descended  lands,  or  whether 
he  may  retain  both.  .  .  .  The  English  courts  have  settled  the 
two  following  conclusions:  If  the  language  by  Avhich  the  testator 
describes  and  disposes  of  his  property  is  general  in  its  terms, 
and  makes  no  specific  reference  to  his  Scotch  heritable  property, 
;;nd  contains  no  words  or  phrases  which,  by  a  reasonable  interpre- 
tation, necessarily  refer  to  such  propei-ty,  then  the  general  rule  of 

'Sherman  v.   Lewis,   44  Minn.   107,  40  N.   W.   .318. 

'Moore  v.  Baker,  4  Inrl.  App.  11.5.  .51  Am.  8t.  Rep.  203,  .SO  X.  E.  620;  Fitz- 
!iu-Ii  V.  Hnbhard,  41  Ark.  04,  H.  &  B.   128. 


^33  COXCEKXIXG    ELECTION.  *  §  488 

construction  g'overns'  the  case,  that  the  testator  must  be  assumed 
i(^  have  intended  to  confine  the  dispositions  to  the  property  which 
he  had  the  power  to  dispose  of  hy  that  will, — namely,  the  Enulish 
pi-operty.  The  Scotch  lieritable  property  is  not  disposed  of,  and 
was  not  intended  to  be  disposed  of,  and  the  heir  is  not  put  to  an 
election.  In  short,  the  case  falls  under  the  familiar  rule  stated  in 
the  last  paragraph. 1  If,  on  the  other  hand,  the  testator  makes  an 
ex{)ress  reference  to  his  Scotch  propert}^  or  uses  such  specific  lan- 
guage of  description,  that,  upon  a  reasonable  interpretation,  he  must 
have  intended  such  a  reference,  and  a  clear  intention  is  thereby 
shown  to  dispose  of  the  Scotch  as  well  as  the  English  estate,  then, 
although  the  disposition  is  void  with  respect  to  the  Scotch  heritabh' 
property,  the  heir  at  law  is  compelled  to  elect  between  this  prop- 
erty thus  descending  to  him,  and  the  benefits  conferred  upon  him 
by  the  will.-  Similar  eases  have  arisen  in  this  country  upon  wills 
executed  in  one  state,  and  valid  for  all  purposes  by  the  law  thereof, 
but  not  valid  as  effective  devises  of  land  b.y  the  law  of  another 
state  in  which  was  situated  real  property  owned  by  the  testator.  The 
same  twofold  rule  has  been  adopted  and  enforced  by  the  American 
courts;  and  it  is  plain  that  such  cases  may  constantly  arise  from 
the   varying  legislation  of  different   commonwealths.^ 

§  487.  Second  Class. — Cases  where  property  is  given  to  B,  in 
^^hich  the  donor  has  only  a  partial  interest,  and  a  partial  interest 
in  it  is  held  by  A,  and  by  the  same  instrument  other  property  of 
the  donor  is  conferred  upon    A.     .     .     . 

^  488.  General  Doctrine. —  .  .  .  Where  the  testator  has  a 
partial  interest  in  the  property  devised  or  beciueathed  by  his  will, 
the  necessit}^  of  an  election  is  always  much  less  apparent  than 
where  he  purports  to  bestow'  property  in  which  he  has  no  interest 
wliatever.  In  such  eases  it  is  a  settled  rule  that  courts  will  lean 
as  far  as  possible  in  favor  of  an  interpretation  which  shows  an 
intention  of  the  testator  to  give  only  the  interest,  estate,  or  share 
which  he  is  enabled,  by  virtue  of  his  own  right,  to  deal  with,  or  to 
give  the  property  in  its  present  condition,  subject  to  all  existing 
encumbrances  and  charges  upon  it.  It  requires  a  strong,  unequi- 
vocal expression  or  indication  of  an  intent  on  the  part  of  the 
testator  to  bestow  the  entire  property,  and  not  simply  his  own 
interest  in  it,  or  to  bestow  the  propei'ty  freed  from  its  encumbrances 
and  charges,  in  order  to  raise  the  necessity  for  an  election.^ 

'ilaxwpll  V.  Maxwell.  2  De  Gox.  M.  &  ('•.  lOr,.  1(5  Ben  v.  106:  Maxwell  v. 
Hyslop.   L.   R.   4   P]q.   407. 

^Brodie  v.  Barry,  2  Ves.  &  B.  127:  Dewar  v.  IMaitlaiid.  L.  B.  2  Eq.  S.'U. 

nan  Dyke's  Appeal,  00  Pa.  St.  4S1.  480.  H.  &  B.   136. 

'Reed  v.  Diekerman,  12  Pick.  140.  H.  &  B.  134;  Haven  v.  .Sackett,  \5  X.  Y. 
365;   Toiiey  v.   Spragin^.  80  Ala.  541. 


§  492  El^UITY    JURISPKUDENCE.  234 

§  489,  The  Donor  Owns  only  an  Undivided  Share  of  the  Prop- 
erty.— If  a  testator  owning  an  undivided  share  uses  language  of 
description  and  donation  which  may  apply  to  and  include  the  whole 
property,  and  by  the  same  will  gives  benefits  to  his  co-owner,  the 
V(uestion  arises  whether  such  co-owner  is  bound  to  elect  between 
the  benefits  conferred  by  the  will  and  his'  own  share  of  the  prop- 
erty. Prima  facie  a  testator  is  presumed  to  have  intended  to 
bequeath  that  alone  which  he  owned, — that  only  over  which  his 
power  of  disposal  extended.  Wherever,  therefore,  the  testator 
does  not  give  the  whole  property  specificalli/,  but  employs  general 
ivords  of  description  and  donation,  such  as  "all  my  lands,"  and  the 
like,  it  is  well  .settled  that  no  case  for  an  election  arises,  because 
there  is  an  interest  belonging  to  the  testator  to  which  the  disposing 
language  can  apply,  and  the  primn  facie  presumption  as  to  his 
intent  Avill  control. ^  On  the  other  hand,  if  the  testator  devises  the 
property  specifically  by  language  indicating  a  specific  gift  of  the 
property,  an  election  becomes  necessary.  It  seems  now  to  be  set- 
tled by  the  more  recent  English  decisions  that  when  the  owner  of 
an  undivided  share  devises  or  bequeaths  the  property  by  word.s 
of  description  and  donation  importing  an  intent  to  give  the  entiretij, 
then  a  case  of  election  is  raised  against  the  other  co-owner  who 
receives  a  benefit  under  the  same  will."  The  conclusion  Avhieh  is 
plainly  deducible  from  these  recent  decisions  in  England  is,  that 
When  a  person  owns  an  undivided  interest  or  share  in  any  species 
of  property, — a  house  and  lot,  a  farm,  a  fund  of  securities,  or  a 
fund  of  money, — and  he  does  not  use  general  words  of  gift,  such 
a.s  "all  my  estate,"  "all  my  property,"  and  the  like,  but  puri:»orts 
to  give  the  ivhole  thing  itself,  using  language  which,  by  a  reason- 
able interpretation,  must  necessarily  describe  and  define  the  whole 
corpus  of  the  thing  in  which  his  j^artial  interest  exists,  as  a  dis- 
tinct and  identified  piece  of  property,  then  an  intention  to  bestow 
the  whole,  and  not  merely  the  testator's  undivided  share,  must  be 
inferred,  and  a  case  for  an  election  arises.  The  language  of  descrip- 
tion may  be  by  metes  and  bounds,  or  may  be  any  other  form  of 
words  which  will  serve  clearly  to  point  out  and  identify  the  entire 
subject-matter. 

§  492.  Dower — Election  by  a  Widow  between  her  Dower  and 
Benefits  Given  by  her  Husband's  Will. — Where  a  husband  devises 
or  bequeaths  property  to  his  Avife,  the  question  arises,  whether  she 
must  elect  between  this  benefit  and  her  dower,  or  whether  she  is 

'Miller  v,  Thurgood,  .S3  Beav.  496;  Penn  v.  Gu.srgeiiheimer,  7G  Va.  830.  847, 
H.  &  B.  123;  In  re  Gotzian,  34  Minn.  159,  ,57  Am.  Rep.  43,  24  N.  W.  920. 

=  Grissell  v.  Swinhoe,  L.  R.  7  Eq.  291,  29,5;  Wilkinson  v.  Dent,  L.  R.  G  Ch.  330: 
Penn  v.  Guggenheinier,  70  Va.  839,  847,  H.  &  B.  123. 


2',y5  CONCKRMNG    ELECTION.  §  4'J  t 

entitled  to  claim  1)()th  her  dower  and  the  te^amentary  gift.  This 
is  by  far  the  most  im])()]'tant  and  frequent  aspect  in  which  the 
doctrine  of  election  has  come  before  the  American  courts^ — so  im- 
jiortant  that  election  itself  has  sometimes  been  treated  by  Amer- 
ican writers  as  a  )nei'e  incident  of  dower.     .     .     . 

§  493.  The  General  Rule.—  ...  If  the  will  declare.?  in 
express  words  that  the  te.stamentary  gift  is  intended  to  be  in  lieu 
of  dower,  the  widow  is  obliged,  even  at  law,  to  elect. ^  AVhen.  how- 
ever, the  will  contains  no  such  express  words,  every  devise  or  be- 
(}uest  made  to  the  wife  is  presumed  to  be  intended  as  a  provision 
in  addition  to  her  dower  right,  and  in  general,  she  will  not  be 
required  to  elect.  The  duty  of  electing  may  arise  even  in  the 
absence  of  any  expres.s  declaration  that  the  testamentary  gift  is. 
in  lieu  of  dower,  but  can  only  arise  from  a  clear,  une(juivocal  in- 
tention exhibited  in  provisions  of  the  will  incompatible  with  the 
right  of  dower.  ...  It  results  that  whatever  be  the  disposi- 
tions of  the  will  to  the  widow  and  to  others,  the  presumption  is 
strong  in  favor  of  the  intention  that  the  widow  shall  have  both 
the  gift  and  her  dower;  the  courts  lean  heavily  in  sui)port  of  this 
pi'esumption ;  nothing  short  of  a  perfect  incongruity  between  the 
dispositions  of  the  will  and  the  widow's  claim  to  set  out  her  dower 
hy  metes  and  hounds  from  her  husband's  lands  can  put  her  to  an 
election.  However  positive  and  absolute  the  testator's  language  of 
donation,  the  court  will,  if  possible,  read  it  as  meaning,  "I  devise 
and  bequeath  all  my  interest  in  the  land  subject  to  my  wife's 
dower  right."-  It  must  also  be  carefully  observed,  as  a  conclusion 
draAvn  from  all  the  cases  of  authority,  that  it  is  not  sufficient  to 
raise  a  case  for  an  election,  that  an  intention  can  even  be  plainly 
inferred  from  the  dispositions  of  the  will  for  the  widow  to  take 
the  testament  gift  in  lieu  of  her  dower;  in  order  to  put  her  to  an 
election,  such  an  intention  on  the  part  of  the  testator  must  be 
expressed  by  means  of  testamentary  dispositions  and  provisions 
which  are  wholly  and  unmistakably  inconsistent  with  the  assertion 
of  her  claim  to  the  dower.  Mere  intention  of  the  testator  gathered 
from  the  will  is  clearly  not  enough;  that  intention  must  have  been 
shown,  or  carried  into  operation,  by  totally  inconsistent  gifts  of 
the  land  subject  to  the  dower. 

§  494.     A  Different  Statutory  Rule  in  Certain  States. — As  will 


^  Nottley  V.   Palmer,   2   Drew.   9.3. 

"Birmingham  v.  Kirwan,  2  Schoales  &  L.  444,  452;  Adsit  v.  Adsit,  2  Johns. 
Ch.  448,  7  Am.  Dec.  539;  Church  v.  B\ill,  2  Denio  430,  43  Am.  Dec.  754;  Herbert 
V.  Wren,  7  Cranch,  370,  378;  Reed  v.  Diekerman.  12  Pick.  145,  149,  H.  ft  B.  134; 
Tobias  v.  Ketchnm,  32  X.  Y.  319,  326,  II.  &  B.  374;  Lewis  v.  Smith,  9  N.  Y.  502, 
61  Am.  Dec.  706. 


§  502  EQUITY    JUKISPItUDEXCE.  236 

more  particularly  appear  in  a  subsequent  paragraph,  the  time  and 
mode  of  electing  between  her  dower  and  a  will,  by  a  widow,  is  very' 
precisely  regulated  in  many  of  the  states  by  statute.  Either  as  a 
result  of  this  legislation,  or  of  statutes  changing  th.e  nature  of 
dower,  a  general  rule  concerning  the  necessitj^  of  election  by 
\vidows,  cjuite  different  from  that  set  forth  in  the  foregoing  para- 
graph, has  been  adopted  in  some  of  the  states.  By  this  rule,  wher- 
ever a  testamentary  disposition  in  behalf  of  his  widow  is  contained 
in  the  husband's  Avill,  and  his  intention  that  she  is  to  enjoy  both 
this  gift  and.  her  dower  does  not  affirmatively  and  expressly  appear 
on  the  face  of  the  instrument,  she  is  reciuired  to  elect  between 
the   two.i 

^  499.  Devise  in  Trust  to  Sell,  or  with  a  Power  of  Sale.— It  is 
also  a  settled  rule,  both  in  England  and  in  the  American  states, 
where  statutes  have  not  interfered,  that,  after  a  legacy,  annuity,  or 
other  provision  made  for  the  wife,  a  devise  of  lands  which  are  sub- 
ject to  dower,  or  of  all  the  testator's  lands,  to  trustees,  on  trust, 
to  sell,  or  with  power  given  to  the  executors  to  sell,  for  any  pur- 
pose, is  not  inconsistent  with  the  widow's  claim  of  dower  in  the 
lands  so  devised,  and  therefore  no  necessity  for  an  election  by  her 
is  created.  The  will,  in  such  case,  is  to  be  interpreted  as  though 
it  had  expressed  the  intention  for  the  lands  to  be  sold  subject  to 
the  widow's  dower.  This  conclusion  is  the  same,  even  although 
the  will  directs  that  an  interest  in  some  part  of  the  proceeds  of  the 
sale  should  be  given  or  secured  to  the  widow.^  Some  special  pro- 
vision of  the  will,  however,  in  addition  to  the  mere  trust,  or  power 
to  sell,  and  to  the  direction  for  distributing  the  proceeds,  may  cre- 
ate the  inconsistency  which  prevents  this  rule  from  applying,  and 
requires  an  election  l)y  the  widow. - 

§  502.  Devise  to  Widow  and  Others  in  Equal  Shares.— The  rule 
is  also  selthnl  in  England  by  a  current  of  decisions  that  "where  a 
testator  devises  lands,  which  are  by  law  subject  to  dower,  in  ex- 
press terms,  to  his  Avidow  and  others, — as,  for  example,  his  children, 
— in  e(pial  shares,  this  provision  for  an  equality  among  the  devisees 
is  inconsistent  with  a  claim  of  dower,  and  creates  the  necessity 
for  an  election  by  the  widow. ^     Although  this  rule  is  sustained  by 

'Reed  v.  Dickeiniaii.  12  Pick.  14(5.  H.  &  B.  124;  Crenshaw  v.  Carpenter,  69  Ala. 
572,  44  Am.  Rep.  539:  Warren  v.  Warren,  148  111.  61,  22  L.  R.  A.  393,  36  X.  E. 
611;  Stearns  v.  Perrin,  130  jNIich.  456,  90  N.  W.  297;  Clayton  v.  Akin,  38  Ga. 
320,  95  Am.  Dec.  393;  Brant  v.  Brant,  40  Mo.  266;  Cooper  v.  Cooper,  56  X.  J. 
Eq.    48,    .38    Atl.    198. 

'Ellis  V.  Lewis.  3  Hare  310:  Konvalinka  v.  Solileoel  104  N.  Y.  125.  5S  Am.  Reji. 
494,  9  N.  E.  868,  H.  &  B.   132. 

-Vernon  v.  Vernon,  53  X.  Y.  351.  362. 

'Chalmers  v.  Storil.  2  Ves.  &  B.  222;  Durfee's  Petition,  14  R.  I.  47:  Holme  v. 
Strator.  52  X.  J.  Va].  591.  30  Atl.  333. 


237  coxcEKMXG  i:lj:ctiox.  §  512 

the  authority  of  several  direct  decisions,  it  cannot  be  reconciled 
with  the  general  principle,  wliich  underlies  all  cases  of  election 
between  a  testamentary  disposition  for  the  widow  and  her  dower, 
— the  principle  that  a  testator  is  to  be  presumed  to  have  intended 
to  devise  only  what  belonged  to  him  and  what  he  Avas  able  to 
give.     The  correctness  of  the  rule  has  been  repeatedly  questioned. - 

§  509.  Who  may  Elect — Infants.^ — It  is  very  clear  that  an  infant 
cannot  elect.  In  cases  where  an  infant,  if  he  had  been  an  adult, 
would  be  bound  to  elect,  the  court  has  sometimes  deferred  the  ques- 
tion of  election,  where  this  could  be  done  without  prejudice  to  the 
rights  of  other  parties,  until  the  infant  came  of  age.  The  ordinary 
rale  is  for  the  court  to  direct  an  inquiry  to  be  made  whether  it  is 
for  the  infant's  advantage  to  elect  or  not,  and  what  election 
ought  to  be  made.  In  other  words,  the  court,  as  the  result  of  a 
judicial  examination,  itself  makes  the  election  on  the  infant's 
behalf.- 

§  510.  Lunatics. — In  like  manner,  where  the  person  entitled  or 
bound  to  elect  is  a  lunatic,  the  court  will  make  the  election  on  his 
behalf,  after  having  ascertained,  through  an  inquiry,  what  action 
is  most  for  his  advantage;  and  this  is  the  rule,  even  though  the 
lunatic  is  under  the  care  of  a  committee.^ 

§  511.  Rights  and  Privileges  of  Persons  Bound  to  Elect. — It 
should  be  carefully  observed  that  the  rules  to  be  mentioned  under 
this  head  were  established  in  the  absence  of  any  legislation  upon 
the  subject.     ... 

§  512.  Subject  to  the  above-stated  limitations,  it  is  a  well-settled 
rule  of  equity  that  a  person  bound  to  elect  has  a  right  to  become 
fully  informed  of  and  to  know  all  the  facts  affecting  his  choice, 
and  upon  which  a  fair  and  proper  exercise  of  the  power  of  election 
can  depend.  To  this  end  he  has  a  right  to  inquire  into  and  ascer- 
tain all  the  circumstances  connected  with  the  two  properties, — 
that  is,  his  own  and  the  one  conferred  upon  him.  and  especially 
their  relative  condition  and  value;  and  he  will  not  be  compelled 
to  elect  until  he  has  made,  or  at  least  has  had  an  opportunity  to 
make,  such  an  examination  as  enables  him  to  learn  the  truth. ^  It 
follows   that    where    an    election    has    been   made   in    ignorance    or 

■'^ee  In  re  Hatch's  Estate,  62  Vt.     300,  18  Atl.  814,  22  Am.  St.  Rep.  109. 

^  As  to  election  by  jnarricd  ironicn,  see  In  re  Vardon's  Trusts,  L.  R.  .31  Cli.  D. 
275,    Shep.    13.5. 

=  McQueen  v.  McQueen,  2  Jones  Eq.  10.  62  Am.  Dec.  20.5. 

Mvennedy  v.  Johnson,  65  Pa.  St.  451.  3  Am.  Rep.  G50 :  Wihler  v.  Pi.uotf.  L.  R. 
22  Ch.  Div.  263;  Van  Steenwyck  v.  \\'a>liI)Hrn.  5!i  Wis.  483.  501.  48  Am.  Rep. 
532,  17  N.  W.  289. 

MXilson  V.  Tlionibury,  L.  R.  10  Cli.  23!),  248,  249;  Maeknet  v.  Maeknet,  29  X. 
J.   Eq.    54. 


§  514  EQUITY    JURISl'KUDEXCE.  238 

under  a  mistake  as  to  the  real  condition  and  value  of  the  properties, 
or  under  a  mistake  as  to  the  real  nature  and  extent  of  the  party's 
own  rights,  such  a  mistake  is  regarded  as  one  of  fact,  rather  than 
of  law;  the  election  itself  is  not  binding,  and  a  court  of  equitable 
powers  will  permit  it  to  be  revoked,  unless  the  rights  of  third 
persons  have  intervened  which  would  be  interfered  with  by  the 
revocation.-  This  particular  rule  must  necessaril}'  have  been  ma- 
terially modified  by  the  statutes  in  many  states,  which  declare  in 
positive  terms  that  an  election  by  widows  can  only  be  made  within 
a  certain  prescribed  period,  and  that  if  they  suffer  the  time  to 
elapse  without  taking  any  step,  they  shall  be  deemed  to  have 
elected,  or  to  have  abandoned  the  right  of  electing;  and  so  the 
decisions  seem  to  hold. 

§  513.  Time  of  Election. —  .  .  ,  Under  the  purely  equitable 
doctrines,  unmodified  by  statute,  there  is,  as  it  seems,  no  limit  in 
point  of  time  to  a  right  to  elect,  unless  it  can  be  shown  that  injury 
would  result  to  third  persons  by  delay.^  Nevertheless  it  is  clear 
that  by  the  acquiescence  and  dela}'  of  the  one  entitled  to  elect, 
third  persons  may  acquire  rights  in  the  property  originally  subject 
to  an  election,  which  equity  W'ill  not  suffer  to  be  disturbed  by 
means  of  a  subsequent  election.-  It  seems,  on  the  other  hand,  that 
a  person  having  the  right  to  compel  an  election  does  not,  in  gen- 
eial,  forfeit  the  right  by  a  delay  in  its  enforcement."  These  purely 
equitable  rules,  at  least  so  far  as  they  affect  widows  electing  be- 
tween testamentary  benefits  and  dower,  have  been  greatly  modified 
by  legislation  in  this  country.  In  very  many  of  the  states  statutes 
have  been  passed  which  prescribe  definite  periods  of  time  wnthin 
which  the  right  of  election  between  dowser  and  a  provision  made 
by  will  must  be  exercised.* 

^  514.  Mode  of  Election,  Express  or  Implied — What  Conduct 
Amounts  to  an  Election. — Independently  of  the  statutes  referred 
to  in  the  foregoing  paragraph,  wdiieh  have  altered  the  equitable 
rules  on  the  subject  in  very  many  states,  an  election  may  be  either 
express  or  implied.  An  express  election  is  made  by  some  single 
unequivocal  act  of  the  party,  accompanied  by  language  showing 
his  intention  to  elect,  and  the  fact  of  his  electing  in  a  positive, 
unmistakable  manner, — as.  for  example,  by  the  execution  of  a 
written  instrument  declaring  the  election.    As  the  election  becomes 


=  Mackiiet  v.  Macknet.  29  X.  J.   Eq.  54:    Woodhuvn's  Estate.   138  Pa.   St.  60G, 
21  Am.  St.  Rep.  932,  21  Atl.  Ki;    Evans's  Appeal,  51  Conn.  435. 
^  Sopwith  V.  IMaugham,  30    Boa  v.  235. 
"Tihbitts  V.   Tihbitts,   19  Ves.   f.G3. 
'Spread  v.  Morgan,  11  H.  L.  Cas.  588. 
*Lord  V.  Lord,  23  Conn.  327:    Akin  v.  Kellogg.  119  K.  Y.  441,  23  N.  E.  1046. 


239  COXCERNIXG    ELECTION.  §  51G 

fixed  by  such  a  definite  act,  and  at  such  precise  time,  no  questions 
concerning  it   can  arise. 

§  515,  Implied. — An  election  2nay  also  be  implied — that  is,  in- 
ferred— from  the  conduct  of  the  party,  his  acts,  omissions,  modes 
of  dealing  with  either  property,  acceptance  of  rents  and  profits, 
and  the  like.  Courts  of  equity  have  never  laid  down  any  rule 
determining  for  all  cases  w4iat  conduct  shall  amount  to  an  implied 
election,  but  each  case  must  depend  in  great  measure  upon  its 
own  circumstances.^  The  following  rules,  however,  have  been  fairly 
settled  by  the  courts  as  guides  in  determining  the  general  ques- 
tion. To  raise  an  inference  of  election  from  the  partj^'s  conduct 
merely,  it  must  appear  that  he  knew  of  his  riglit  to  elect,  and  not 
merely  of  the  instrument  giving  such  right,  and  that  he  had  full 
knowledge  of  all  the  facts  concerning  the  properties.-  As  an  elec- 
tion is  necessarily  a  definite  choice  by  the  party  to  take  one  of 
the  properties  and  to  reject  the  other,  his  conduct,  in  order  that 
an  election  may  be  inferred,  must  be  done  with  an  intention  to 
elect,  and  must  show  such  an  intention.  The  intention,  however, 
may  be  inferred  from  a  series  of  unequivocal  acts.^  .  .  .  The 
rule  seems  to  be  plainly  deducible  from  the  American  cases  which 
are  placed  in  the  note,  that  where  a  widow  is  required  to  elect 
between  a  testamentary  provision  in  her  favor  and  her  dower,  any 
unequivocal  act  of  dealing  with  the  property  given  by  the  will 
as  her  own,  or  the  exercise  of  any  unmistakable  act  of  ownership 
over  it,  if  done  w^ith  knowledge  of  her  right  to  elect,  and  not 
through  a  clear  mistake  as  to  the  condition  and  value  of  the  prop- 
erty, will  be  deemed  an  election  by  her  to  take  under  the  will,  and 
to  reject  her  dower.'*. 

§  516.  EfiFects  of  an  Election. —  .  .  .  Where  an  election  is 
once  made  by  the  party  hound  to  elect,  either  expressly  or  inferred 
from  his  conduct,  it  binds  not  only  himself,  but  also  those  parties 
who  claim  under  him,  his  representatives  and  heirs. ^     .     .     . 

§  517.  The  other  parties  interested  as  donees  under  the  instru- 
ment creating  the  necessity  for  an  election  are  affected  by  it,  when 
made,  in  the  following  manner:  If  the  person  on  whom  the  duty 
of   electing   rests   elects   to   take   in   conformity   with   the   will    or 

^Padbury  v.  Clark,  2  Macn.  &  G.,  298;  Whitridge  v.  Parkhurst,  20  ]^Id. 
62,    72. 

-iSopwith  V.  Maugham,  30  Beav.  231. 

^Spread  v.  Morgan,  11  H.  L.  Cas.  58S -.  Wilson  v.  Tliornlmrv.  L.  Pv.  10  C'li. 
239.  248,  249;  Penn  v.  Guggenheimer,  70  Vn.  839,  H.  &  B.  123;  Estate  o/  Smith, 
108  Cal.   115,  40  Pac.   1037. 

'Penn  v.  Guggenheimer,  70  Va.  839,  8.50,  H.  &  B.  123;  Pratt  v.  Douglas,  38 
K.  J.  Eq.  51 G,  .5.38. 

^  Penn  v.  Guggenheimer,  76  Va.  839,  851,  H.  &  B.  123. 


§517  EQUITY    JUKlisPKUDEXCE.  240 

other  instrument  of  donation,  he  thereby  relinquishes  his  own  prop- 
ert}^  and  must  release  or  convey  it  to  the  donee  upon  whom  the 
instrument  had  assumed  to  confer  it.^  If  he  elects  against  the  will 
or  other  instrument  of  donation,  he  thereby  retains  his  own  prop- 
erty, and  must  compensate  the  disappointed  donee  out  of  the  e.^tate 
given  to  himself  by  the  donor.  A  court  of  equity  will  then  sequester 
the  benefits  intended  for  the  electing  beneficiary,  in  order  to  secure 
compensation  to  those  persons  whom  his  election  disappoints." 


SECTION  III. 

COXCERNI NG    SATIHFACTJ  OX. 

ANALYSIS. 

§  520.  Questions  stated. 

§   521.  Definition. 
§§   522-525.   Various  conditions  of  fact. 

§  523.  Rationale  of  the  doctrine. 

§  524.  Ademption  and  satisfaction. 

§  525.  Extrinsic  evidence. 

§  526.  Divisions  of  the  subject. 
§§   527-543.  1.   Satisfaction  of  (h'l>ts  l)y  legacies. 
§§  527-540.  Legacy  bj'  a  debtor  to  his  creditor. 

§§  528-530.  Various    circumstances    uhich    prevent    tlie    presumption    of    satis- 
faction. 

§   537.  Direction   in   \\  ill   to   pay  debts. 

S   53S.  Legacy  in  pursuance  of  agreement,  or  in  express  jiaymeat. 

S   530.  Debt  owing  to  a  cliild  or  wife. 

§   540.  Debt  to  child  satisfied   by  an   advancement. 
§§   541,542.  Legacy  by  a  creditor  to  his  debtor. 

§   543.   Satisfaction  of  debt,  how  enforced. 
§§   544-552.  11.  Satisfaction  of  legacies  by  subsequent  legacies, 

5}  545.  Rule  first:     Specific  legacies. 
§§   54T5-548.  Rule  second:    Legacies  of  (juantity  by  difTerent  instruments. 

§   549.  Rule  third:    Legacies  of  equal  amounts  by  the  same  instrument. 
M   550.551.  Rule   fourth:     Legacies   of   unequal    amounts    by    the   same   instru- 
ment. 

§   552.  Extrinsic    evidence. 
§§   553-504.  111.  Satisfaction  of   legacies  by  portions  and  advancements. 

§  5.54.  Presumption    of    satisfaction. 

§  555.  Subsequent  gift  less  than  the  legacy. 

§   550.   Person   in   loco   parentis. 

^See  Hibbs  v.  Insurance  Co.,  40  Oliio  St.  543:  (aulficld  v.  Sullixan,  S5  X.  Y. 
153. 

niogers  V.  Jones.  3  C'li.  Div.  OSS.  11.  &    !'..  131  :  \"aa  Dyke's  Appeal,  00  Pa.  St. 

490,  H.  &  P..  130;    Wilbanks  v.  Wilbank^.  IS  111.  17,  11.  &  IT.  129. 


Ji41  CONCEUMNG    SATibi ACTION.  §  52((' 

§§  557-oGO.  Circumstances  which  do  or  do  not  prevent  the  presumjjtion. 

§  559.  Payment  to  husband  of  a  female  legatee. 

§   560.  \Miat  prevents  tlie  presumption. 

§  5G1.  Effect  of  a  codicil. 

§  562.  Satisfaction  of  legacies  between  strangers. 
§§  563,504.  Satisfaction,  when  not  presumed,  but  expressed. 

§§  565-568.  IV.  Satisfaction  of  portions  by  subsequent  legacies,  or  other  simi- 
lar provisions. 
§§   566, 567.  Differences   between   tlie   gifts   which    do    not    and    which    do    defeat 
the  presumption. 

§   568.  Election    by    the    beneficiary. 
§§  569-577.  V.  Admissibility  and  effect  of  extrinsic  evidence. 

§  570.  General  principles  discussed  and  explained. 
§§   571—575.   \A'l»en  the  subsequent  benefit  is  given  by  writing. 

§  572.  The  writing  expressly  states  the  donor's  intention. 

§  573.  The  Avriting  silent  as  to  donor's  intention,  and  no   jiresumption  of 
satisfaction  arises  from  it. 

§  574.   The  -writing   silent   as  to   donor's   intention,   but   a   presumption   of 
satisfaction  arises  from   it. 

§  575.  Cases  to  which  the  foregoing  rules  apply. 

^  576.  \\'hen  the  subsequent  benefit  is  given  verbally. 

§  577.  Amount   of   evidence. 

§  521.  Definition. — Satisfaction  may  be  defined,  in  a  general 
manner,  to  be  the  donation  of  a  thing,  with  the  intention,  either 
expressed  or  implied,  that  it  is  to  be  taken  either  wholly  or  in  part 
in  extinguishment,  by  way  of  substitution,  of  .some  prior  claim  in 
favor  of  the  donee.  The  equitable  doctrine  of  satisfaction,  con- 
sidered in  all  its  aspects,  arises  in  four  general  classes  of  cases, 
namely:  Satisfaction  of  debts  by  legacies;  satisfaction  of  legacies 
l)y  subsequent  legacies ;  satisfaction  of  portions  by  legacies ;  and 
satisfaction  of  legacies  by  portions  or  advancements. 

i;  527.  I.  Satisfaction  of  Debts  by  Legacies — Legacy  by  a 
■Debtor  to  his  Creditor. — The  general  rule  as  stated  by  Sir  J.  Trevor, 
]M.  R.,  in  the  leading  case  of  Talbot  v.  Dnke  of  Shrewsbury,^  is  as 
follows:  "If  one,  being  indebted  to  another  in  a  sum  of  money, 
does  by  his  will  give  him  a  sum  of  money  as  great  as  or  greater 
than  the  debt,  without  taking  any  notice  at  all  of  the  debt,  this  shall 
nevertheless  be  in  satisfaction  of  the  debt,  so  that  he  shall  not  have 
both  the  debt  and  the  legacy."  A¥herever  this  rule  operates,  and 
the  presumption  of  satisfaction  arises,  the  creditor-legatee  is  of 
course  put  to  his  election :  if  he  claims  the  legacy,  he  cannot  en- 
force the  debt;  if  he  enforces  the  debt,  he  cannot  obtain  the  legacy. 
It  is  also  proper  to  remark  that  a  debtor-testator  can  always  thus 
put  his  creditor  to  an  election,  by  accompanying  his  testamentary 
gift,  whatever  be  its  nature  or  amount,  with  words  sufficiently  in- 
dicating his  inte)itiuii  that  it  is  made  and  must  be  received  in  lieu 

Tree.  Cli.  394,  2  Lead.  Cas.  Eq.  4th  Am.  Ed.  75L 
16 


§  538  EC^UITY    JURISPRUDEXCE.  ;342 

and  satisfaction  of  the  debt.-  This  general  rule,  being  based  upon 
artificial  reasoning,  has  been  distinctly  condemned  by  able  judges. 
Tl  is  not  favored  by  courts  of  equity;  on  the  contrary,  they  lean 
s'lrongly  against  the  presumption,  will  apply  it  only  in  cases  which 
fall  exactly  within  the  rule,  and  will  never  enlarge  its  operation.^ 

§  528.  What  Prevents  the  Presumption. — In  consequence  of  this 
.'^trong  leaning  against  the  presumption,  it  is  well  settled  that 
courts  of  equity  will  take  hold  of  very  slight  circumstances  con- 
nected with  any  particular  case,  and  will  regard  them  as  sufficient 
to  remove  the  case  from  the  operation  of  the  general  rule,  and  to 
prevent  the  presumption  of  a  satisfaction  from  arising.^  In  fact, 
the  discussion  of  the  general  doctrine  chiefly  consists  in  the  state- 
ment and  description  of  these  facts  and  circumstances  which  i)re- 
vent  its  application.  The  following  are  the  important  instances, 
as  settled  by  the  decisions,  in  which  the  presumption  of  a  satis- 
faction is  thus  overcome. 

^  529.     Legacy  Less  than  the  Debt. — 

>;  530.  Legacy  Payable  at  a  Different  Time  from  the  Debt. — A 
It'fj'aey  payable  at  a  different  time  from  the  debt  will  not  be  a 
satisfaction  thereof,  even  though  it  may  be  equal  in  amount  to  or 
greater  than  the  debt.^ 

^  531.     Legacy  Contingent  or  Uncertain.— 

^  532.  Legacy  of  a  Different  Nature  or  for  a  Different  Interest. 
— Tlie  general  presumption  of  a  satisfaction  does  not  arise  where 
tlie  legacy  is  given  for  a  different  interest,  or  is  of  a  different  na- 
ture from  the  debt, — as  where  the  debt  is  a  specific  sum,  and  the 
bequest  is  of  an  annuity.  For  this  reason  a  devise  of  lands  or 
Ijcquest  of  specific  chattels  or  securities  will  not  be  a  satisfaction 
of  a  pecuniary   liability.^ 

§533.     Motive  for  the  Gift  Stated.— 

§  534.     The  Debt  Contingent  or  Uncertain. — 

§  535.     The   Debt   Subsequently   Contracted. — 

§  536,     Different  Interests  or  Rights  in  the  Debt  and  Legacy. — 

5;  537.     Direction  in  Will  to  Pay  Debts.— 

i;  538,  Legacy  in  Pursuance  of  Agreement  or  in  Express  Pay- 
ment.—  ...  It  is  therefore  well  settled  that  if  one  person 
renders  any  services  to  another  upon  an  understanding  or  arrangement 
that   he  is  to  be  remunerated  therefor  by  a  testamentary   benefit, 


-  Strong  V.  Williams.  12  Mass.  380,  7  Am.  Dec.  81,  H.  &  B.  140.  Sliep.  127;  In  re 
Pletclior,  L.   R.   38   Ch.   DIv.   373. 
•'  Richardson  v.  Greese.  3  Atk.  65. 

SStrong  V.   Williams,   12  Mass.  389,  7  Am.   Doe.   81.  H.  &   B.   140.  Shep.   127. 
'  VanRiper  v.  VanRiper.  2  N.  .7.  Eq.  1  ;  In  ro  Horlock   (1895),  1  Ch.  516, 
*  Cloud  V.  Clinkinbeard,  8  B.  Men.  397,  49  Am.  Dec.  397. 


243  co^'c•Kl;^•l^•(i  satlsfactiox.  §511 

and  the  party  receiving-  the  services  afterwards  makes  a  bequest 
or  devise  in  his  will  in  favor  of  the  other,  which  is  in  its  amount 
and  value  a  reasonably  sufficient  compensation,  such  testamentary 
provision  is  a  satisfaction,  and  the  creditor  party  cannot  enforce 
his  demand  as  a  debt  by  an  action  against  the  estate.^  It  would 
seem  that,  under  these  circumstances,  the  creditor  party  Avould 
not  even  have  an  election,  since  he  had  agreed  to  look  to  the  testa- 
mentary benefit  alone  for  compensation.  This  result,  however,  must 
evidently  depend  upon  the  terms  of  the  original  agreement,  in  pur- 
suance of  which  the  services  were  rendered.  Wherever,  also,  there 
being  an  existing  indebtedness,  it  is  agreed  between  the  parties, 
either  expressly  or  impliedly,  that  it  shall  be  paid  by  some  benefit 
bestowed  in  the  debtor's  will,  and  a  testamentary  provision  is  sub- 
se(iuently  made  in  favor  of  the  creditor,  which  he  accepts,  his  de- 
mand will  thereby  be  satisfied;  he  cannot  both  take  the  bequest 
and  enforce  his  debt  as  a  subsisting  claim  against  the  estate.  In 
this  case,  however,  the  creditor  clearly  has  an  election  either  to 
accept  the  bequest  in  satisfaction  of  his  pre-existing  demand,  or 
to  renounce  the  gift  and  enforce  the  demand. - 

§  539.  Debt  Owing-  to  a  Child  or  Wife. — AVhere  a  father,  or  per- 
son standing  in  loco  parentis,  owes  an  ordinanj  debt,  arising  in  any 
manner,  to  his  child,  or  to  the  one  occupying  the  position  of  ctiild, 
and  while  the  debt  is  subsisting-  gives  a  legacy  to  .such  child,  or 
to  the  one  so  treated  as  a  child,  the  case  is  governed  in  every  re- 
spect, both  with  regard  to  the  general  presumption  of  a  satisfaction 
and  the  facts  Avhich  rebut  the  presumption,  b}^  the  same  rules  which 
apply  to  a  debtor  and  creditor  who  are  strangers  to  each  other. ^ 
The  same  is  true  of  a  legacy  given  by  a  husband  to  his  wife  when 
he   is   indebted   to   her  by   any   ordinary   species   of   indebtedness. - 

§  541.  Legacy  by  a  Creditor  to  his  Debtor. — A  testamentary  gift 
f]'om  a  creditor  to  a  debtor  stands  upon  an  entirely  different  foot- 
ing from  one  by  a  debtor  to  his  creditor,  which  was  examined  in 
the  preceding-  paragraphs.  A  legacy  from  a  creditor  to  his  debtor, 
unaccompanied  by  language  in  the  will  or  exterior  to  it  expressly 
showing  the  special  intent,  wdiether  ecjual  to,  greater  or  less  than. 
the  debt,  raises  no  presumption  whatever,  either  of  law  or  of  fact, 
that  the  testator  intended  thereby  to  excuse,  release,  or  discharge 
the  debt,  so  that  the  lesratee  would  be  entitled  to  claim  and  receive 
the  whole  amount  bequeathed,  but  would  be  freed  from  all  liability 
to  pay  the  debt.     In  fact,  such  a  legacy  produces  no  efit'ect  upon 

» Eaton  V.  Benton.  2  Ilill  570.  r>78. 

=  Williams  v.  Crary.  5  Cow.  3fi8.  S  Cow.  246.  4  Wonrl.  443. 
U^illiam   v.   Cliancellor.   43   IMiss.   437,   5  Am.   Rep.   498. 
^Cilliam  v.  ClunKellor.  43  :Miss.  437.  5  Am.  Hep.  4!)S. 


§  046  EQUITY    JURI;<Pi;UDEXCK.  ^4-r 

the    indebtedness.^      The    only    ett'ect    whieli    sueh    a    legacy    given 
simpliciter  can  have  is  to  create  the  right  to  an  equitable  set-off. 

§  543.  Satisfaction  of  Debt,  how  Enforced. — It  should  be  ob- 
served, in  eonclusio]!,  that  whenever  a  legacy  is  given  by  a  debtor- 
testator  in  satisfaction  of  the  debt  which  he  owes,  either  by  opera- 
tion of  the  general  presumption  or  by  virtue  of  express  language 
01  the  will,  such  satisfaction  is  purely  a  creation  of  equitj',  and 
cannot  be  set  up  as  a  defense  at  law,  except  so  far  as  equitable 
defenses  are  allowed  in  legal  actions  by  modern  legislation.  In  the 
absence  of  .such  permissive  legislation,  an}-  affirmative  relief  to  com- 
pel an  election  or  satisfaction  by  the  creditor-legatee  must  be  ob- 
tained in  equity.^     .     .     . 

§  544.  II.  Satisfaction  of  Legacies  by  Subsequent  Legacies. — 
.  .  .  It  should  be  carefully  observed  that  whenever  the  second 
legacy  is  regarded  as  substitutionary,  and  not  as  cumulative,  the 
satisfaction  of  the  prior  legacy  is  ab.solute;  the  former  legacy 
creating  no  riglit  in  the  legatee,  there  is  no  claim  for  an  election 
between  the  two  on  his  part;  the  former  gift  is  completely  adeemed 
by  the  testator's  own  act.     The  following  are  the  four  rules: — ■ 

J;  545.  Rule  First.  Specific  Legacies. — A  second  gift  of  the  mine 
specific  thing,  whether  by  the  same  instrument  or  by  different  in- 
struments, and  whether  given  simpliciter  or  accompanied  by  a  state- 
ment of  the  motive,  is  always  substitutionary  and  in  satisfaction 
of  the  prior  gift.  Such  double  legacies  must,  from  the  necessities 
of  the  case,  constitute  only  one  legacy,  and  can  never  be  cumula- 
tive, since  it  is  impossible  that  the  .same  identical  corpus  or  speci- 
fic thing  itself  can  be  given  twice. ^     .     .     . 

li  546.  Rule  Second.  Legacies  of  Quantity  by  Different  Instru- 
ments.— It  is  well  settled  that  where  a  testator  by  ditt'erent  instru- 
ments gives  a  legacy  of  quantity  simpliciter,  and  also  a  second 
legacy  of  quantity  to  the  same  legatee,  in  the  absence  of  language 
shoAving  a  diff'erent  intent  the  second  legacy  is  regarded  and  treated 
as  cumulative,  and  not  as  substitutionary  or  in  satisfaction  of  the 
prior  one.  The  testator's  intention  is  presumed  to  be  that  the 
beneficiary  should  receive  both  the  gifts;  and  it  makes  no  diff'er- 
ence  whether  the  second  is  exactly  e<iual  to  or  is  greater  or  Jess 
than  the  fir.st.^ 

'WTlmot  V.  \Yo()(llH)Use,  4  Erown.  Ch.  227;  Sliarp  v.  ^Yightnla^^.  205  Pa.  St. 
28,5,  54  Atl.   888. 

'Malony  v.  Scanlan,  53  111.  122. 

'Duke  of  .St.  Albans  v.  Jjeauclcrk,.  2  Atk.  (ioS ;  Suisse  v.  Lowthor.  2  Hare 
424.   4.32. 

'Wilson  V.  O'Leaiy.  L.  11.  12  Ya\.  .V25,  7  Cli.  44S ;  DcWitt  v.  Yates,  10  Johns. 
]5(i.  ()  Am.  Dor.  32(),  II.  &  B.  144;  Edwards  v.  Rainier's  Ex'rs.,  17  Ohio  St. 
507.   H.  &  P.,    14(;. 


2-i5  COXCKKNIXC    ;^ATIS1  ACTIOX.  §  55-1: 

^  548,     Presumption  Overcome  by  Language  of  Testator. —    .     . 

.  Althougli  two  bequests  may  be  made  to  the  same  person  by 
dilt'ereut  instruments,  and  although  these  gifts  may  differ  in  their 
amounts,  incidents,  and  forms,  and  although  even  different  motives 
may  be  assigned  for  each  separate  bequest,  still  the  special  language 
used  by  tlie  testator  in  making  the  second  gift,  or  the  language 
found  in  other  parts  of  the  will,  may  sufficiently  show  his  intention 
to  give  the  second  legacy  in  substitution  for  or  satisfaction  of  the 
prior  one;  and  thus  au}^  presumption  otherwi.se  arising  from  sudi 
double  provision  will  be  wholly  overcome.  It  is  impossible  to  lay 
down  any  general  rule  governing  such  cases;  each  case  must  stand 
ui)on  its  own  circumstances.  The  question  is,  then,  simply  one  of 
interpretation,  in  order  to  ascertain  the  real  intent  of  the  te.stator; 
but  in  arriving  at  this  intent,  the  court  will,  if  necessary,  look  at 
all  parts  of  the  will.^ 

^  549.  Rule  Third.  Legacies  of  Quantity  by  the  Same  Instni- 
ment,  of  Equal  Amount. — If  by  the  same  instrument,  cither  by  a 
will  or  a  codicil,  legacies  of  the  same  amount  are  given  simpliciter 
to  the  same  individual,  the  second  is  held  to  be  substitutional,  or 
in  lieu  or  satisfaction  of  the  first,  and  the  legatee  is  entitled  to 
but  one  legacy.^     .     .     . 

i;  550.  Rule  Fourth.  Legacies  of  Quantity  by  the  Same  Instru- 
ment, of  Unequal  Amounts. — If  by  the  same  instrument,  either 
will  or  codicil,  legacies  of  unequal  amounts  are  given  simpliciter 
to  the  same  person,  the  second  legacy  is  held  to  be  additional  or 
cumulative,  and  it  is  immaterial  whether  it  be  greater  or  less  than 
the  first, — in  either  case  the  legatee  is  entitled  to  both  the  gifts. ^ 

§  553.  III.  Satisfaction  of  Legacies  by  Portions  and  Advance- 
ments.— ...  In  this  country  formal  settlements  made  by 
parents,  upon  or  in  favor  of  their  children,  are  very  infrequent. 
In  the  great  majority  of  American  cases,  therefore,  involving  or 
depending  upon  this  species  of  satisfaction,  a  legacy  has  first  been 
given  to  a  child,  and  subsequently,  but  before  the  will  becomes 
operative,  the  testator  either  pays  to  the  same  child  a  sum  by  way 
of  advancement,  or  agrees  in  some  informal  manner,  either  verbally 
or  in  writing,  to  pay  such  sum.  The  testator  afterwards  dying, 
the  question  arises,  whether  the  child  is  entitled  to  the  legacy. 

§  554.     Presumption  of  Satisfaction. — Whenever  a  parent,  or  pei- 

iRice  V.  Boston  etc.  Aid  Society,  50  X.  H.  191;  Estate  of  Zeile.  74  Cal.  127. 
137.  1.5  Pac.  4oo. 

^DeWitt  V.  Yates,  10  .Johns.  1,50.  6  Am.  Dec.  32G,  H.  &  B.  144';  Edwards  v. 
Rainier's  Ex'rs.,  17  Ohio  St.  ,507,  H.  &  B.  146;  Thompson  v.  Betts,  74  Conn. 
.576,  ,51   Atl.  564.  92  Am.  St.  Rep.  23.5. 

^Hartley  v.  Ostler,  22  Beav.  449;  Edwards  v.  Rainier's  Ex'rs,  17  Ohio  St. 
.597,  H.  &  B.   146. 


§  555  EQUITY    JUIM.'il'liUUENCE.  246 

son  in  loco  parentis,  gives  a  legacy  to  his  child,  or  to  the  individual 
whom  he  treats  as  a  child,  without  stating  any  particular  object 
for  which  it  is  given,  such  legacy  is  regarded  as  a  portion.  And 
if  the  testator  afterwards,  during  his  own  lifetime,  makes  a  settle- 
ment upon  the  child  by  way  of  a  portion,  or  pays  to  him  a  sum 
of  money  by  way  of  a  portion,  or  makes  an  advancement  to  him, 
or  gives  him  a  sum  of  mone}^  as  an  advancement,  such  payment, 
portion,  or  advancement  amounts  to  a  satisfaction — or,  as  is  often 
said,  an  ademption — of  the  legacy,  either  })ro  tanto  or  in  full,  as 
the  money  thus  paid  or  settled  is  less  than,  e(iual  to,  or  greater  than 
the  amount  of  the  legacy.^  This  rule  is  based  upon  a  presumption 
against  double  portions;  that  is,  a  presuniptit)n  adopted  by  courts 
oJ'  equity  that  a  father,  owing  a  common,  natural  duty  to  all  his 
children,  could  not  have  intended  to  distribute  his  estate  unequally 
among  them,  and  to  favor  one  at  the  expense  of  the  others.  This 
reasoning  has  sometimes  been  called  artificial,  and  the  rule  itself 
harsh,  but  it  is  really  founded  upon  equity  and  justice.-  It  should 
be  carefully  observed  that  whenever  the  equitable  presumption 
arises,  and  the  rule  based  upon  it  applies,  the  satisfaction,  either 
in  whole  or  in  part,  of  the  prior  legacy  is  accomplished  absolutely 
by  the  act  of  the  testator  alone,  without  any  regard  to  the  act 
or  assent  of  the  legatee.  It  is  not  the  case  of  a  revocation,  partial 
or  complete,  of  the  will;  there  is  no  analogy  whatever  betw-een  such 
a  satisfaction  and  a  revocation.  The  will,  in  fact,  is  legally  sup- 
posed to  remain  in  force  unaltered  in  its  disposition.  But  the 
testamentary  gift  being  under  the  control  of  the  testator,  he  in 
reality  acts  as  his  own  executor;  he  anticipates  his  own  death,  and 
by  his  own  hand  pays  the  legacy,  in  whole  or  in  part,  as  the  case 
may  be,  during  his  lifetime.  The  legatee,  having  thus  received 
payment  of  the  single  gift  designed  for  his  benefit,  cannot  equitably 
demand  to  be  paid  a  second  time  out  of  the  estate  in  the  hands 
of  the  executor.  While  the  legacy  is  not  reiwl-rd.  it  is  removed  or 
taken  away  by  the  act  of  the  testator,  and  therefore  this  instance 
of  satisfaction  may  with  some  propriety  be  called  an  "ademption." 
This  satisfaction  or  ademption,  if  it  takes  place  at  all,  must  neces- 
saiily  take  place  without  any  regard  to  the  assent  or  other  conduct 
of  the  legatee.^ 

§  555.     Subsequent   Payment    Less   than   the    Legacy. —    .     .     .. 
The  doctrine  thus   ann(ninced   by  Lord   Cottenham'    is  now  estab- 

'Ex  parte  Pye,  18  Ves.  140,  2  Load.  Cas.  Eq.  4th  Am.  pd.  741:  VnnHmitPii  v. 
Post,   3.3   N.   .J.   Eq.   344. 
-  Spe  explanation  of  the  rnle  in   Suisse  v.  Lowtliev.  2  Hare  424,  433,  435. 
'Allen  V.  Allen,  13  S.  C.  512.  30  Am.  Rep.  716. 
'  Pym  V.  Lockyer,  3  Mylne  &  C.  29. 


247  COXCERXIXG    SATISFACTION.  §  -joS 

li'ihed  in  England  and  in  the  United  States,  that  if  the  subse(|iient 
advancement  equals  or  exceeds  the  prior  legacy,  it  is  a  satisfaction 
thereof  in  full;  if  less  than  the  lei-acy,  it  is  only  a  satisfaction  iivo 
tanto.- 

§  556.  Person  in  Loco  Parentis. —  .  .  .  The  essential  ele- 
ment of  the  legal  conception  in  loco  parentis  depends  rathei'  upon 
the  intention  of  the  donor  than  upon  his  conduct,  and  consists  of  a 
design  on  his  part  to  make  future  provision  for  the  beneficiary, 
shown  so  clearly  by  his  conduct  that  an  obligation  rests  upon  him. 
and  a  right  arises  on  the  part  of  the  beneficiary,  similar  to  the 
natural  obligation  and  right  existing  between  an  actual  father 
and  child.  The  rule  was  first  laid  down  in  a  clear  and  formal  man- 
ner by  Lord  Cottenham,  that  a  person  must  mean  and  intend  to 
provide  for  the  child,  and  thus  to  place  himself  in  loco  parentis 
towards  it,  and  that  such  meaning  and  intent  may  be  declared  in 
an  express  manner,  or  may  be  shown  by  the  donor's  conduct;  and 
where  this  is  the  case,  it  is  immaterial  that  the  child  has  a  father 
living,  with  whom  he  resides,  and  by  whom  he  is  maintained  ac- 
cording to  his  (the  father's)  means. ^  ...  As  the  assumption 
of  the  character  depends  upon  the  donor's  meaning  and  intent,  it 
plainly  follows  that  this  intent  may  be  shown  by  parol  evidence, 
since  it  is  often,  even  if  not  generally,  inferable  from  his  eon- 
duct.-  .  .  .  It  is  also  clearly  settled  by  the  English  decisions 
that  where  the  intention  to  assume  the  locus  parentis  does  not 
exist,  no  relative,  however  near,  except  the  actual  parent,  not  ev(Mi 
a  grandparent,  will  be  considered  as  in  loco  parentis,  so  as  to 
create  the  equitable  presumption  of  a  satisfaction.^ 

§  557.  Circumstances  Which  do  or  do  not  Prevent  the  Presump- 
tion.— Notwithstanding  the  severe  criticism  upon  the  doctrine  umde 
by  individual  judges,  the  leaning  of  equity  is  so  strong  against 
double  portions,  and  the  presumption  of  a  satisfaction  is  so  favored 
by  the  courts,  that  its  operation  will  not  be  prevented,  "although 
there  may  be  slight  circumstances  of  difference  between  the  ad- 
vance and  the  portion"  given  by  the  prior  will.^     .     .     . 

§  558.  If  the  legacy  is  of  an  uncertain  amount, — as,  for  exam- 
ple, the  bequest  of  a  residue  or  part  of  a  residue, — it  is  now  settled 
by  the  more  recent  English  decisions  that  a  subsequent  settlement 
or  advancement  of  a  definite  sum  will  opeiatc^  as  a  satisfaction  in 

=*  Clarke  v.  Jetton,  5  Sneed  229.  H.  &  B.  1.5.5;  ^Miner  v.  Atherton's  Ex'rs,  .35 
Pa.   St.   528:    Van   Hoiiten   v.   Post,   33   N.   J.   Eq.   344. 

'  Pow^s  V.  Mansfield.  3  Mylne  &  C.  350,  0  Sim.  544. 

=  Pym  V.  Lockyev,  5  Mylne  &  C.  29;    Lan^don  v.  Astor's  Ex'rs,   10  N.  Y.  9. 

'Lyddon  v.  Ellison,  10  Beav.  565,  .572:  Lantrdon  v.  Astor's  Ex'rs.  10  N.  Y.  9; 
Allen  V.  Allen.  13  S.  0.  512,  36  Am.  Rep.   710. 

'Per  Lord  Eldon.  in  Ex  parte    Pye.   IS  \'es.   140. 


§  '}(){)  EQUITY    JlltJ&PltUDEN'CE.  248 

full  or  in  part,  if  the  circumstances  are  such  as  otherAvise  bring-  the 
ease  within  the  presumption.  The  earlier  decisions  had  held  that 
the  presumption  of  a  satisfaction  would  not  arise  where  the  prior 
legacy  was  of  a  residue,  because,  as  it  was  said,  the  legal  concep- 
tion of  a  "portion"  necessarily  required  a  gift  of  a  definite  sum.^ 

§  559.  Payment  to  Husband  of  a  Female  Legatee.—  ...  It 
appears  to  be  no  less  clearly  settled  by  the  decisions  that  where 
a  father  has  given  a  legacy  to  his  daughter,  a  subsequent  pajnnent 
hy  him  to  the  daughter's  husband  alone,  either  at  the  time  of  or 
subsequent  to  their  marriage,  will  operate  as  a  satisfaction  of 
the  legacy  in  full  or  pro  tanto.  provided  such  payment  was  intended 
l)y  the  father  to  be  in  the  nature  of  an  advancement,  and  not  to 
be  a  mere  i)ersonal  donation  to  his  son-in-law:  and  this  intention 
may  appear  in  the  very  terms  of  the  written  instrument  by  which 
the  payment  is  secured  or  which  accompanies  it,  or  by  the  circum- 
stances surrounding  it.  or  by  the  verbal  declarations  made  by  the 
donor  as  a  part  of  the  transaction  :  and  of  course  extrinsic  parol 
evidence  is  admissible  to  show  such  intention.''     .     .     . 

ii  560.  What  Prevents  the  Presumption.^  ...  In  the  first 
place,  where  a  father  advances  oi-  pays  money  to  his  child  before 
the  execution  of  his  will,  there  is  no  presumption  that  such  ad- 
vancement or  payment  is  to  be  in  satisfaction  of  a  legacy  given  to 
the  same  child  in  the  subsequent  will.^  .  .  .In  the  third  place, 
it  has  been  regarded,  as  a  general  rule,  that  the  legacy  and  tJie 
subsequent  portion,  advancement,  or  payment  must  be  ejusdem 
generis,  or  else  that  no  presumption  of  a  satisfaction  can  arise; 
and  there  are  decisions  which  certainly  support  this  rule  in  its 
general  statement. - 

'  in  re  Vickers,  L.  R.  37  Ch.  D.  525.  As  to  the  earlier  decisions,  see  Clark 
V.  .Tetton.  5  Sneed  220,  H.  &  P..  155;  Allen  v.  Allen,  13  S.  C.  512,  30  Am.  Rep. 
7](i. 

'  Kirk  V.  Kddowes,  3  Hare  500:  Linsay  v.  Piatt,  0  Fla.  150;  Dilley  v.  Love, 
til  Md.  003.  In  all  the  American  cases,  the  question  arose  con-^erning  an  advance- 
ment made  to  a  daujjhter  upon  her  distrilmtive  portion  of  her  father's  estate 
when  he  dies  intestate.  8o  far  as  a  payment  to  the  daughter's  husband  con- 
stitutes an  advancement,  the  principle  is  clearly  the  same,  whether  the  daugli- 
ter's  portion  is  derived  through  the  operation  of  the  statute  of  distributions 
or  is  given  l)y  her  father's  will.  Tf  the  payment  to  the  husband  is  an  advance- 
ment and  satisfaction  in  the  one  case,  it  certainly  must  be  an  advancement 
and  satisfaction  in  the  other. 

'  Ipton  v.  Prince,  Cas.  t.  Talb.,  71;  Estate  of  Lyon,  70  Towa  375.  30  X.  W. 
042.  5  L.  R.  A.  71. 

-  In  re  Jacques  (1003).  1  Ch.  207.  \Miile  the  rule  that  the  subsequent  advance- 
ment nuist  be  ejusdem  generis  with  the  legacy,  in  order  to  raise  a  presumption  of 
satisfaction,  has  generally  been  enforced  by  the  American  courts,  it  is  still 
Avell  settled  that  the  dn;ior's  intention  will  govern.  Tf  the  intention  that  a  sub- 
sequent gift    --linll   bo  in   satisfaction   of  a   prior  legacy  is  expressly  declared  by 


249  COXCEKXIXG    SATISFACTION.  §  5G4 

§  561.  Effect  of  a  Codicil. — Wherever  a  legacy  has  been  satisfied 
by  a  portion,  advancement,  or  payment,  in  pursuance  of  the  pre- 
sumption against  double  portions,  it  will  not  be  revived  by  a  sub- 
sequent codicil  which  simply  purports  to  confirm  the  will  and  all 
the  bequests  in  it.  A  codicil  republishes  a  will,  and  reaffirms  all 
the  existing  testamentary  dispositions  which  purport  to  be  oper- 
ative, but  does  not  reestablish  particular  bequests  which  have  been 
already  revoked  or  adeemed  by  the  testator.^     ... 

i<  562.  Satisfaction  of  Legacies  betv^een  Strangers. — If  the  tes- 
tator is  not  the  parent  of  the  legatee,  or  does  not  stand  to  him  in 
loco  parentis,  in  general  no  presumption  arises  that  a  prior  legacy 
is  satisfied  by  a  subsequent  payment,  or  gift,  or  provision  by  way 
of  portion  or  advancement;  the  legatee  is,  in  general,  entitled  to 
the  legacy,  in  addition  to  the  other  benefit.^  To  this  general  pro- 
position there  is,  however,  one  important  exception.  If  a  legacy 
is  given  to  a  stranger  foi^  any  particular  purpose,  and  the  testator 
subsequently  makes  a  payment,  advancement,  or  gift  for  the  same 
purpose,  such  payment  or  advancement  is  presumed  to  be,  and  will 
operate  as,  a  satisfaction  of  the  legacy.-  Parol  evidence  of  the 
donor's  intention  in  making  the  payment  or  gift  is  admissible  for 
the  purpose  of  repelling  or  strengthening  the  presumption.^ 

§  563.    Satisfaction,  when  not  Presumed,  but  Expressed, — 

§  564.  Rationale  of  the  Rule  in  Such  Cases.— It  may  be  stated, 
therefore,  as  a  general  proposition,  that  wherever  a  testator  has 
bequeathed  a  legacy  to  a  child  or  to  a  stranger,  and  afterwards 
during  his  lifetime  either  advances  an  amount  of  money  or  gives 
any  other  species  of  property,  lands,  chattels,  or  things  in  action 
to  the  same  legatee,  and  the  beneficiary  in  accepting  the  money 
or  other  property  expressly  assents,  acknowledges,  or  agrees  that 
the  same  shall  be  in  partial  or  complete  payment  or  discharge  of 
the  prior  bequest,  then  the  legacy  will  be  satisfied  in  whole  or  in 
part,  as  the  case  may  be.  Also,  when  a  testator  has  in  like  manner 
bequeathed  a  pecuniary  legacy,  and  afterwards  pays  to  the  legatee 

the  testator,  then  it  makes  no  dift'erence  how  unlike  the  two  may  be:  a  convey- 
ance of  land,  if  the  intention  were  so  expressed,  would  satisfy  a  legacy  of  money. 
In  Jones  v.  Mason,  5  Rand.  577,  16  Am.  Dec.  761,  parol  evidence  of  testator's 
declarations  was  held  admissible,  although  no  presumption  of  satisfaction  arose 
because  the  two  gifts  were  not  ejusdem  generis. 

'Powys  V.  Mansfield,  3  Mylne  &  C.  3.59,  376,  per  Lord  Cottenham ;  Langdon 
V.  Astor's  Ex'rs.,  16  N.  Y.  9,  37. 

*  Ex  parte  Pye,  18  Ves.  140,  per  Lord  Eldon.  This  conclusion  is  citlicr  ex- 
pressly or  impliedly  sustained  by  all  the  decisions  hcreiofovc  cited  wliicli  <icnl 
with  the  presum])tion  as  between  pa reni -testator  and  child. 

•-' Pankluirst  v.  llowclj.  L.  P.  6  T'li.  IMC:  In  re  Pollock,  L.  R.  28  Ch.  Div.  oo2, 
5.j(). 

^See   In   re    Pollock.   L.   R.   28   Ch.   Div.   .-).")2. 


§  5G8  EQUITY    JLliJSrilUDEXCE.  250 

a  sum  of  money  which  he  expressly  deelares  to  be  in  discharp-e  of 
the  legacy,  or  gives  to  the  legatee  any  other  species  of  property 
which  he  expressly  declares  shall  be  in  lieu  of  the  legacy,  and  the 
legatee  receives  and  enjoys  the  benefits  of  the  payment  or  gift, 
the  prior  legacy  is  thereby  satisfied.^     .     .     . 

§  565.  IV.  Satisfaction  of  Portions  by  Subsequent  Legacies  or 
other  Similar  Provisions.— In  pursuance  of  the  same  principle  of 
opposition  to  double  portions,  the  general  rule  is  equally  well  set- 
tled, that  where  a  portion  is  made  payable  under  a  settlement,  or 
an  instrument  in  the  nature  of  a  settlement,  by  a  parent,  or  a 
person  in  loco  parentis,  and  he  afterwards  makes  a  provision  by  a 
legacy  in  favor  of  the  one  entitled  to  the  portion,  a  presumption 
arises  that  such  provision  is  intended  to  be  in  complete  or  partial 
satisfaction  of  the  portion,  according  as  the  amount  of  the  legacy 
exceeds,  is  equal  to,  or  is  less  than  that  of  the  prior  portion.  If 
the  second  provision  is  by  a  subsequent  settlement  instead  of  by 
will,  it  may  also  be  a  satisfaction:  although  the  presumption  does 
not  seem  to  be  as  strong  in  that  case  as  when  the  second  gift  is  a 
legacy.^     .     .     . 

§  568.  Election  by  the  Beneficiary. —  ...  It  follows,  there- 
fore, that  whenever  a  portion  is  secured  by  a  settlement  or  by  any 
other  agreement,  and  a  subsequent  provision  is  made  for  the  same 
beneficiary  by  a  legacy  or  otherwise,  which  would  either  operate 
as  a  satisfaction  in  pursuance  of  the  equitable  presumption,  or 
which  is  expressly  declared  by  the  donor  to  be  given  in  satisfaction, 
in  each  case  the  beneficiary  has  an  election  between  the  two  provi- 
sions. He  may.  at  his  option,  accept  the  subsequent  legacy  and 
surrender  the  prior  portion,  or  he  may  reject  the  substituted  legacy 
and  claim  the  prior  portion.  By  electing  to  take  either,  he  neces- 
sarily renounces  his  claim  to  the  other. 

^Richards  v.  Humphreys,  15  Pick.  133;  Allen  v.  Allen.  13  S.  C.  rA2.  3(1  Am. 
Rej).    TIG. 

', lesson  V.  Jesson,  2  Vern.  25,'5 :  INIontagu  v.  Earl  of  Sandwich.  L.  R.  32  Ch. 
Div.  525;  Gilliam  v.  Chancellor,  43  Miss.  437,  5  Am.  Rep.  498;  Taylor  v. 
Lanier,  3  Murph.  OS.  9  Am.  Dec.  599. 


»51  CONCEKXIN.U    PEUFOKMAXCE,  §  579 


SECTION  IV. 
CONCERXINU    PERFORMANCE. 

ANALYSIS. 

§  578.  Rationale. 

§  r>7'J.  Definition. 
§§   .580-583.  1.  Covenant  to  purchase  and  settle  or  convey, 

§  5S0.  General  rule:    J^echniere  v.  Earl  of  Carlisle. 

§  581.  Forms  of  covenant  to  which  the  rule  applies. 

§  582.  fSpecial    rules. 

§   583.  Such  covenant   creates  no  lien. 
§§   584-586.  11.  Covenant  to  bequeath  personal  property. 

§   584.  (jteneral    rule:      Blandy  v.    Widniore;    Goldsmid   v.   Goldsniid. 

§  585.  Limitations  on  the  rule]    covenant  must  not  create  a  debt   in  life- 
time  of   deceased. 

§  586.  A   legacy   not   a    performance;     distinction   between    "performance" 
and  "satisfaction  of  legacy." 

§   587.  Presumption  of  pei-formance  by  tmstees. 
§§  588-590.  ileritorious  or  imperfect   consideration;    theory  of. 
§§  589.590.  Defective  execution  of  powers:    relief  of. 

§   590.  Requisites   for   such   relief;     a   partial   execution   necessary. 

^  579.  Definition. — From  the  foregoing  analysis  it  appears  that 
the  equity  of  Performance  should  be  defined,  or  rather  described, 
as  follows:  When  a  person  has  definitely  bound  himself  to  do  a 
certain  act,  by  which  a  particular  kind  of  thing  will  be  bestowed 
upon  another  in  a  specified  manner,  and  instead  thereof  he  either 
bestows  the  same  kind  of  thing  upon  the  obligee  in  a  diffe^-ent 
manner,  or  else  permits  the  same  kind  of  thing  to  devolve  upon 
the  obligee  in  course  and  by  operation  of  law,  so  that  what  is  thus 
done  or  permitted  may  amount  to  a  complete  or  partial  fulfillment 
of  the  existing  obligation,  then  the  party  will  be  presumed  to  have 
done  or  permitted  this  with  tlio  intoniion  of  performing  the  very 
obligation  itself  in  whole  or  in  part,  and  the  obligation  will  be 
thus  wholly  or  partially  performed,  as  the  case  may  be.  Equity 
imputes  to  the  party  an  intention  of  fulfilling  the  obligation  resting 
upon  him,  rather  than  the  intention  of  violating  that  duty,  or  of 
conferring  a  mere  bounty.  Equity  thus  says,  not  only  that  a  man 
shoulrl  be,  but  that  he  i.s,  just  before  he  is  generous.  The  eases 
involving  this  doctrine  may  be  arranged,  for  purposes  of  con- 
venience, into  two  classes:  1.  Where  a  person  covenants  to  pur- 
chase and  settle,  or  to  purchase  and  convey,  lands,  and  he  after- 
wards purchases  such  lands  without  expressing  any  purpose  for 
which  the  purchase  is  made,  and  does  not  convey  or  settle  them 


§  588  EQUITY    JURISPRUDENCE.  252 

ill  pursuance  of  his  covenant;^  2.  Where  a  person  covenants  to 
h^ave  property  by  will,  and  he  does  not  make  the  bequest,  but  on 
his  death  the  covenantee  receives  the  same  kind  of  property  by  suc- 
cession.    These  two  classes  will  be  examined  separately.' 

jj  587.     Presumption  of  Performance  by  Trustees.^ — 

§  588.  Meritorious  or  Imperfect  Consideration. — Closely  akin  to 
the  equity  of  performance,  and  properly  a  special  instance  of  it, 
is  that  of  meritorious  or  imperfect  consideration.  Indeed,  all  cases 
of  satisfaction  and  of  performance  have  been  treated  by  some  writ- 
ers as  applications  of  this  equity.  All  agreements,  so  far  as  the 
binding  efficacy  of  their  promises  is  concerned,  must  be  referred 
to  one  or  the  other  of  three  causes^ — a  valuable  consideration,  a 
mere  voluntary  bounty,  or  the  performance  of  a  moral  duty.  The 
first  alone  is  binding  at  law%  and  enables  the  promisee  to  enforce 
the  obligation  against  the  promisor.  The  second,  Avhile  the  pro- 
mise is  executory,  is  a  mere  nullity,  both  at  law  and  in  equitj'. 
The -third  constitutes  the  meritorious  or  imperfect  consideration 
of  equity,  and  is  recognized  as  effective  by  it  within  very  narrow 
limits,  although  not  at  all  by  the  law.  While  this  species  of  consid- 
ei-ation  does  not  render  an  agreement  enforceable  against  the 
promisor  himself,  nor  against  any  one  in  whose  favor  he  has  altered 
his  original  intention,  yet  if  an  intended  gift  based  upon  such  meri- 
torious consideration  has  been  partially  and  tin  perfectly  executed 
or  carried  into  effect  by  the  donor,  and  if  his  original  intention 
remains  unaltered  at  his  death,  then  equity  Avill,  within  certain 
narrow  limits,  enforce  the  promise  thus  imperfecth^  performed,  as 
against  a  third  person  claiming  merely  by  operation  of  law,  who 
has  no  equally  meritorious  foundations  for  his  elaim.^  The  equity 
thus  described  as  based  upon  a  meritorious  consideration  only  ex- 
tends to  cases  involving  the  duties  either  of  charity,  of  paying 
creditors,  or  of  maintaining  a  wife  and  children.  This  last  duty 
of  maintaining  children  includes  persons  to  wdiom  the  promisor 
stands  in  loco  parentis.-  The  specific  cases  involving  these  three 
kinds  of  duties  to  which  the  doctrine  has  been  applied  by  courts 
of  equity  are  the  supplying  surrenders  of  copyholds  against  the 
heir,^  and  the  supporting  and  completing  defective  executions  of 

MVilcocks  V.  Wilcocks,  2  Vern.  558;  2  J.ead.  Cas.  Eq.  833,  Sliep.  129,  1 
!Seott  324;  Lechmere  v.  Eavl  of  Carlisle,  3  P.  Wms.  211;  Deacon  v.  Smith,  3 
Atk.  323,  1  Scott,  327. 

'  Blandy  v.  Wi'dniore,  1  P.  Wms.  324,  2  Vcrn.  209,  2  Lead.  Cas.  Eq.  4tli  Am.  cd. 
834,  842,'shep.  12G,  1  Scott,  326. 

>  See  post,  §  1049. 

^Sipley  V.  Wass,  49  N.  J.  Eq.  463,  24  Atl.  233. 

'See  ante,  §  556;  Powell  v.  Morisey,  98  X.  C.  426,  2  Am.  St.  Rep,  343,  4  S. 
E.    185. 

^Rodgers   v.   Marshall,    17    Ves.    294. 


253  COXCERNIXG    PEKrOK.MAXCE.  §  590 

powers,  where  the  defect  is  formal,  against  the  one  who  woulJ 
be  entitled  in  remainder.  (Since  the  first  of  these  cases  does  not 
exist  under  our  law,  it  is  only  necessary  to  consider  the  second. 

§  589.  Defective  Excution  of  Powers. — Where  ,the  defect  in  the 
execution  is  mereh'  formal,  equity  will  support,  correct,  and  com- 
plete the  defective  execution  of  powers,  as  against  a  remainderman 
who  has  no  equally  meritorious  claim,  on  behalf  of  the  classes  of 
persons  in  whose  favor  the  "meritorious  consideration"  exists, — 
that  is,  on  behalf  of  charities,  purchasers,  creditors,  children,  or 
wives.  The  rationale  of  this  doctrine  is  the  following :  Although 
in  the  absence  of  a  valuable  consideration  there  is  no  complete 
obligation  restiuii'  upon  the  promisor,  yet  from  the  presence  of  the 
meritorious  consideration  there  is,  in  contemplation  of  equity,  as 
between  the  meritorious  beneficiary  and  the  remainderman  posses- 
sing no  equally  meritorious  claim, .  a  quasi  obligation, — a  duty 
binding  between  the  parties  thus  situated.  An  attempt  having  been 
made  to  execute  the  power,  which  is  only  formally  defective,  equity 
imputes  to  the  donee  in  making  the  attempt  an  intent  to  fulfill 
this  quasi  obligation.  An  intent  to  perform  having  been  thus  shown 
and  parti}'  accomplished,  a  court  of  equity  carries  it  into  effect  by 
decreeing  a  complete  performance.  The  case  is  thus  brought,  in 
appearance  at  least,  within  the  general  principle  concerning  per- 
formance, and  the  equitable  maxim  which  underlies  that  principle. 
The  rationale  thus  described  may  be  exceedingly  artificial ;  it  may 
be  in  reality  unsound  and  inconsistent  with  other  established  prin- 
ciples; but  notwithstanding  these  objections,  the  doctrine  itself  is 
firmly  settled  upon  the  ba.sis  of  authority.^ 

§  590.  Requisities — A  Partial  Execution  Necessary. — The  pow- 
ers which  the  doctrine  may  thus  enforce  are  those  given  in  wills, 
family  settlements,  and  other  similar  instruments,  and  not  bare 
authorities  conferred  by  law.  In  the  first  place,  there  must  be  an 
execution  of  the  power  by  the  donee  thereof  formally  defective, 
or  a  contract  amounting  to  such  a  defective  execution;  otherwise 
the  doctrine  does  not  apply.  If  there  has  been  no  execution  at 
all,  the  court  cannot  interfere;  for  the  donee,  having  an  option 
by  the  very  terms  of  the  power,  has  shown  an  intention  not  to 
execute.  If  the  defect  is  substantial,  and  not  formal,  the  court 
cannot  relieve,  for  its  interposition  would  then  frustrate  the  inten- 
tion of  the  donor,  that  the  power,  if  executed  at  all,  should  ])e 
executed   in  a  prescribed  manner,   or  by  specified   means.^     .     .     . 

^Holmes  v.  Goghill,  7  Ves.  490:  Toilet  v.  Toilet,  2  P.  Wms.  489,  2  Ames 
Eq.  Jur.  305,  1  Scott,  420;    Freeman  v.  Eacho,  79  Va.  43. 

'Toilet  V.  Toilet.  2  P.  Wms.  489,  2  Ames  Eq.  Jur.  305,  1  Scott  420;  Binghain's 
Appeal,   64   Pa.    St.   345. 


EQUITY    JUKISPRLDENCE.  25i 


SECTION  V. 

CONCEKM^G  .NOTICE. 

ANALYSIS. 

§  591.  Questions  stated:      Le  >;e\e  v.   Le  Neve. 

§  592.  Knowledge  and  notice  distinguished. 

§  593.  Kinds ;  actual  and  constructive. 

§  594.  Uelinition. 

§§  595-603.  Actual  notice. 

§  59U.  When  shown  by   indirect   evidence. 

§  597.  What  constitutes;    rumors;    putting   on    inquiry,    etc. 

SS  598-002.  (Special   rules  concerning   actual    notice. 

?  U03.  Eliect   of   knowledge    instead    of   notice. 

SS  <i04-G09.  Constructive   notice    in    general. 

§   005.  Jones    v.    ISniith,    opinion    of    Wigrani,    \'.    C. 

§§  (iOO,  007.  \\  lien   tlie   i^resumption  is   rebuttable;    due  inquiry. 

§  008.  When    it    is    conclusive. 

S  009.  iSpecies  of  constructive  notice. 

§S  010-013.  1.  By    e."vtraneous    facts:    acts    of    fraud,    lu'gligence,    or    mistake; 

general  rule  as  to  putting  on  inquiry:   visible  objects,  etc. 

i?v;  014-025.  2.  i>y  possession  or  tenancy. 

§§  014,015.  General  rules.  English  and  American. 

§§   016-018.  Extent  and  eliect  of  the  notice. 

§§  619-622.  Nature  and   time  of  the  possession. 

SS  623,024.  Whether  the  presumption  is  rebuttable  or  not. 

§   025.  Possession    by   a   tenant   or   lessee. 

S§   020-031.  3.  By  recitals  or  references  in  instruments  of  title. 

§   020.  General    rules. 

§§  027-031.  Nature  and  extent  of  the  notice;   limitations;   instances,  etc. 

SS  ()32-040.  4.  By  lis  pendens. 

§   032.  Kationale:     Bellamy   v.    Sabine. 

S§   033,(534.  General    rules:    requisites. 

S§   035,  036.  To  what  kind  of  suits  the  rule  applies. 

S§  037,038.  What  persons  are  affected. 

§S  039,040.  Statutory  notice  of  lis  pendens. 

*iS   641-043.  5.   By  judgments. 

§§   644-605.  0.  By  recording  or  registration  of  instruments. 

§§  645,646.  (1)    Ihc  statutory  system;  abstract  of  statutes. 

§§  647-649.  (2)    (Jcneral  theory,  scope,  and  object  of  the  legislation. 

§*?  650-054.  (3)    Requisites  of  the  record,  in  order  that  it  may  be  a  notice. 

§   655.  (4)    Of  what  the  record  is  a  notice. 

S§  056-058.  (5)    To  whom  the  record  is  a  notice. 

§   057.  Not  to  prior  parties. 

§   058.  To    subsequent    parties    holding    under    the    same    source    of    title; 
effect  of  a  break  in  the  record. 

§S  659,600.  (6)    Effect  of  other  kinds  of  notice,  in  the  absence  of  a  record. 


255  coxcEi;xiX(;    notice.  §  51J1 

§§  6(il-G65.  (7)    \\  Mat   kiiuls   of   notice  will   proiluee  this   cllVct. 

S  G()2.  English   inlc. 

§§   683,  G(J4.  CoiiHicting  American   rules:    uetiial   or   constructive   notice. 

§  065.  True   rationale  of   notice   in   place   of   a   record. 

§§  G66-67G.  7.  Notice   between    principal    and   agent. 

S§  G66-GG9.  Scope  and  applications. 

§§  670-G75.  Requisites  of  the  notice. 

§  G70.  (1)    Notice  must  be  received  by  agent  during  his  actual  employment. 

§§  671,672.  (2)    And  in  the  same  transaction;  when  in  a  prior  transaction. 

§  673.  (3)    Information  must  be  material;   presumption  that  it  was  com- 
municated  to   the   principal. 

g§   674,675.  Exceptions;  agent's  own  fraud. 

§  676.  True   rationale  of  this  rule. 

§  591.  Questions  Stated. — It  has  been  shown  in  the  preceding 
chapter  that  there  are  two  fundamental  principles  or  maxims  affect- 
ing to  a  greater  or  less  degree  nearly  the  entire  body  of  equity 
jurisprudence, — nearly  the  entire  administration  of  equitable  rights 
and  remedies, — namely,  where  there  are  equal  equities,  the  one 
which  is  prior  in  time  must  prevail,  and  where  there  are  equal 
equities,  the  hnv  must  prevail.  These  two  principles  necessarily 
find  their  most  important  application  in  cases,  which  are  constantly 
arising,  where  several  different,  and  perhaps  successive,  equitable, 
or  legal  and  equitable,  interests  in  or  claims  upon  the  same  subject- 
matter  exist  at  the  same  time,  and  there  is  a  contest  for  the  pre- 
cedence among  the  respective  holders  of  these  interests  or  claims. 
It  has  also  been  shown  that  the  application  of  these  maxims  turns 
upon  the  question,  When  are  the  different  equities  simultaneously 
subsisting  with  respect  to  the  same  subject-matter  "equal"?  or  on 
the  other  hand,  what  renders  them  "unequal,"  so  that  one  shall  have 
an  essential  inherent  superiority  over  another?  In  answering  this 
question,  the  doctrine  of  Notice  plan's  a  most  important  part.  When 
a  person  is  acquiring  rights  with  respect  to  any  subject-matter, 
the  fact  whether  he  is  so  acting  with  or  without  notice  of  the  in- 
terests or  claims  of  others  in  or  upon  the  same  subject-matter  is 
regarded  throughout  the  whole  range  of  equity  jurisprudence  as  a 
most  material  circumstance  in  determining  the  extent  and  even 
the  existence  of  the  rights  which  he  actually  acquires.  In  con- 
formity with  this  view,  the  general  rule  has  been  most  clearly 
established,  that  a  purchaser  with  notice  of  the  right  of  another 
is  in  equity  liable  to  the  same  extent  and  in  the  same  manner  as 
the  person  from  whom  he  made  the  purchase.  The  same  rule  may 
be  thus  expressed  in  someAvhat  different  language:  a  person  who 
acquires  a  legal  title  or  an  e(|uitable  title  or  interest  in  a  given 
snbjeet-matter,  even  for  a  valuable  consideration,  but  with  notice 
that  the  subject-matter  is  already  affected  by  an  ecpiity  or  equit- 
able claim  in  favor  of  another,  takes  it  subject  to  that  equity  or 


§  592  EQUrrV    JLUISl'ltUDEXCE.  2oQ 

equitable  claim.  On  the  other  liand,  a  person  who  has  acquired  a 
title,  and  paid  a  valuable  consideration,  without  any  notice  of  an 
equity  actually  existing  in  favor  of  another,  maij  by  that  means 
obtain  a  perfect  title,  and  hold  the  property  freed  from  the  prior 
outstanding  equit}'.  This  general  doctrine  was  formulated  by  Lord 
Ilardwicke  in  a  celebrated  case  in  the  following  emphatic  terms: 
"The  ground  of  it  is  plainly  this:  that  the  taking  of  a  legal  estate, 
after  notice  of  a  prior  right,  makes  a  person  a  mala  fide  purchasev- 
This  is  a  species  of  fraud  and  dolus  malus  itself;  for  he  knew  the- 
first  purchaser  had  the  clear  right  of  the  estate,  and  after  knowing 
that,  he  takes  away  the  right  of  another  person  by  getting  the 
legal  estate.  Now.  if  a  person  does  not  stop  his  hand,  but  ^ets  the 
legal  estate  when  he  knew  the  right  Avas  in  another,  machinatur 
ad  circumveniendum.  It  is  a  maxim,  too.  in  our  law  that  fraus 
et  dolus  nemini  patrocinari  debent."^  Lord  Hardwicke  was  here 
speaking  of  the  effect  of  an  actual  notice;  and  undoubtedly  it  is  an 
act  savoring  of  fraud  for  a  person  who  has  received  actual,  direct 
notice  of  another's  right,  to  go  on  and  knowingly  acquire  the  prop- 
erty in  violation  of  that  other's  right.  But  on  the  other  hand,  to 
base  the  entire  doctrine  of  notice  upon  fraud,  to  regard  all  its  rules 
as  inferences  from  the  equitable  principle  against  fraud,  is,  in  my 
opinion,  to  ignore  the  plain  meaning  of  words,  and  to  introiluee 
an  unueeessar}^  and  misleading  fiction  into  the  subject.  jMost  of 
the  confusion  in  the  discussion  by  courts  and  writers  has  resulted, 
as  it  seems  to  me,  from  their  acceptance  of  this  dictum  of  Lord 
Hardwicke  as  universally  true,  and  from  their  attempt  to  treat  the 
effects  of  notice,  under  all  circumstances,  as  mere  instances  and  re- 
sults of  fraud.  The  great  importance  of  the  subject  having  thus 
been  exhibited,  its  further  examination  will  be  conducted  in  the 
following  order:  1.  The  nature  of  notice,  what  constitutes  it,  and 
its  various  kinds  and  classes;  2.  The  effects  of  notice,  and  especial- 
ly the  consequences  of  notice  or  the  want  of  notice  in  determinin;: 
priorities  among  equitable  claims  to  or  upon  the  same  subject-mat- 
ter. 

§  592.  Knowledge  and  Notice  Distinguished. — Before  entering 
upon  this  examination,  a  few  preliminary  observations  are  neces- 
sary, to  clear  the  ground  and  to  explain  the  exact  nature  of  the 
(luestions  which  are  to  be  discussed,  and  of  the  conclusions  to  be 
reached  by  such  discussion.  In  the  first  place,  it  is  of  the  utmost 
Importance  to  distinguish  between  the  objects  and  purposes  for 
which  the  fact  of  notice  having  been  given  may  be  invoked.  One 
object  of  notice  may  be  simply  to  affect  the  prioi'ity  of  a  right  which 

•  Le  Neve  v.  \.e  Sexe,  Amb.  436;  2  Lead.  Cas.  Eq.,  4th  Am.  Ed.,  109,  1  S-ott^ 
530. 


257  coxcEKMXt;    notice.  §  51)2 

the  one  receiving  it  has  acquired,  and  to  subordinate  such  riglit  to 
an  interest  in  the  same  subject-matter  held  by  another.  On  the 
other  hand,  notice  may  be  regarded  as  an  ingredient  or  badge  of 
fraud,  as  a  feature  which  renders  the  transaction  entered  into  by 
the  person  who  receives  it  fraudulent.  A  distinction  clearl}'  exists 
between  these  two  purposes ;  and  the  rules  which  govern  the  nature 
iind  effect  of  notice  in  each  must  be  different.  That  might  easily 
be  sufficient  to  subordinate  a  person's  right  to  another  interest 
which  would  at  the  same  time  fall  far  short  of  stamping  his  con- 
duct with  actual  fraud.  In  the  second  place,  it  should  be  most 
carefully  borne  in  mind  that  the  legal  conception  of  "notice," 
as  contained  in  the  settled  doctrines  and  rules  of  equity,  is  some- 
what artificial  and  even  technical.  In  this  purely  legal  artificial 
sense,  notice  is  by  no  means  synonymous  with  knowledge,  altJioiigli 
the  effects  produced  hy  it  are  nndouhtedly  the  same  which  would  result 
from,  actual  l-noivledye.  In  other  words,  while  the  doctrines  of  equity 
on  the  subject  do  not  assume  that  notice  is  knowledge,  nor  even 
that  it  is  necessarily  followed  by  knowledge,  they  still  often  impute 
to  it  the  very  same  consequences  which  would  tiow  from  actual 
knowledge  ac(|uired  by  the  party.  As  the  notice  spoken  of  by 
the  rules  is  not  knowledee.  there  may  be  notice  without  knowledge, 
and  knowledge  without  notice.  If  a  person,  A,  were  negotiating 
Avith  B  for  the  purchase  of  a  piece  of  land,  and  should  be  informed 
either  by  B  or  by  C  that  B  had  already  given  a  deed  or  mortgage 
of  the  same  land  to  C,  such  information  would  be  notice,  and  even 
the  highest  kind  of  notice;  but  A  would  not  thereby,  in  any  true 
meaning  of  the  word,  have  Icnowledge  of  the  deed  or  mortgage,  of 
its  various  provisions  and  legal  effect.  On  the  other  hand.  if.  be- 
fore the  negotiation,  A  had  been  casually  shown  the  deed  or  mort- 
gaue  itself  by  some  third  person  in  whose  possession  it  happened 
to  be,  had  been  permitted  by  such  person  to  take  and  read  the  in- 
strument, had  carefully  examined  it,  and  had  thus  become  familiar 
Avitli  all  of  its  provisions  and  its  legal  effect,  he  would  not,  within 
the  settled  meaning  of  the  legal  term,  have  received  notice,  but  he 
would  most  certainly  have  obtained,  and  would  be  acting  with,  a 
complete  knowledge  of  the  instrument.  Again,  under  certain  cir- 
cumstances, if  A,  while  dealing  with  respect  to  a  piece  of  property, 
deliberately  and  intentionally  refrains  from  making  inquiries  con- 
cerning outstanding  encumbrances  or  claims  for  the  very  purpose 
of  avoiding  any  information,  he  is  charged  with  notice  of  the  en- 
oumbrances  and  claims  which  are  actually  outstanding:  but  he  cer- 
tainly does  not  acquire,  and  cannot  possibly  have,  a  Jcnowledqe  of 
such  prior  charges  or  interests.  The  record  of  a  deed  or  mortgage, 
when  regularly  and  properly  made,  is  constructive  notice  to  sub- 


§  :)92  EQUITY    JLl:Jfel'KUDENCE.  S58 

secjuent  purchasers  and  encumbrances;  l)ut  it  does  not  necessarily 
convey  any  knowledge  to  such  persons;  while  A,  in  purchasing 
land  from  B,  is  absolutely  and  conclusively  bound  by  the  proper 
record  of  a  prior  instrument  affecting  the  same  premises,  he  may 
he  acting  in  perfect  good  faith  and  in  most  complete  ignorance 
(jf  the  actual  existence  of  any  such  instrument.  If,  however,  before 
making  the  purchase,  A  had  examined  the  official  records,  and  had 
there  discovered  and  read  a  deed  or  mortgage  of  the  same  land 
copied  at  length  in  the  book  of  records,  but  under  such  circum- 
stances that  it  was  not  legally  entitled  to  be  recorded,  on  account 
of  a  defective  acknowledgment  or  other  irregularity,  he  would 
not  thereby  have  received  any  legal  notice  within  the  true  meaning' 
of  the  term,  but  he  would  as  certainly  have  obtained  a  full  hnoirl- 
edgp.  of  the  instrument.  These  instances  are  sufficient  to  illustrate 
the  distinction  between  notice,  in  its  legal  and  somewhat  artificial 
conception,  and  knowledge,  and  to  show  that  one  may  exist  without 
the  other.  Unless  this  distinction  is  clearly  apprehended  and  con- 
stantly borne  in  mind,  nuich  of  the  judicial  discussion  concerning 
the  nature  and  effect  of  notice  will  seem  to  be  confused  and  unce}'- 
lain,  and  an  irreconcilable  conflict  M'ill  appear  among  many  of  the 
decisions;  the  distinction  renders  the  discussion  clear  and  certain, 
and  the  decisions  harmonious.  Whenever  the  mere  notice,  in  its 
strict  signification,  is  relied  upon,  even  though  not  accompanied 
or  followed  by  any  actual  knowledge,  then,  from  considerations  of 
policy  and  expediency,  the  same  effects  are  attributed  to  it  which 
would  have  resulted  from  actual  knowledge;  and  it  will  be  fouinl 
that  what  constitutes  this  notice  is  determined  by  definite,  precise. 
and  even  somewhat  technical  rules.  Whenever,  on  the  other  hand,  a 
party  is  shown  to  have  obtained  an  actual  knowledge,  even  though 
there  has  been  nothing  wiiich  constitutes  a  notice  in  its  true  sense, 
then  there  is  no  longer  nny  necessity  of  resorting  to  the  artificial 
conception  of  notice;  the  consequences  must  naturally  and  neces- 
sarily tiow  from  an  actual  knowledge  of  facts  b}^  a  party, 
Avhich  from  motives  of  expediency  are  attributed  to  a  notirr 
of  the  same  facts  given  to  him.  in  the  absence  of  actual  knowledge. 
In  a  Avord.  among  the  complicated  affairs  and  transactions  of  life, 
it  is  often  necessary  that  mere  "notice"  should  take  the  place  of 
actual  knowledge;  but  this  does  not  and  cannot  mean  that  actual 
knowledge  shall  not  produce  the  same  effects  upon  the  rights  of 
parties  which,  from  motives  of  policy,  are  given  to  its  representative 
and  substitute  notice.  This  conclusion  is,  as  it  seems  to  me,  self- 
evident,  and  it  is  most  important:  it  reconciles  at  once  all  the  eon- 
fusion  and  conflict  of  opinion  which,  it  must  be  confessed,  appear 


259  coxc]:i;x!N(;    notice.  § -'^^ 

:ii  some  of  tlie  decisions,  and  it  has  the  sui)i)oi't  of  the  ahh'st  judicial 
authority.' 

§  593.  Kinds — Actual  and  Constructive, — Notice  has  been  divid- 
ed by  judues  aud  writers  into  the  two  main  classes, — "actual"  and 
"constructive;"  but  there  is  a  great  diversity  of  opinion  among 
text-writers  in  determining  what  particular  kinds  shall  come  within 
each  of  these  two  classes.  ...  I  prefer  and  shall  adopt  the 
classification  approved  and  followed  by  many  of  the  most  eminent 
judges,  which  has  the  merit  of  simplicity,  naturalness,  and  cer- 
tainty. According  to  this  arrangement,  "actual"  notice  embraces 
all  those  instances  in  which  positive  personal  information  of  a 
matter  is  directly  conmiunicated  to  the  party,  and  this  communi- 
cation of  information,  being  a  fact,  is  established  by  evidence 
directly  tending  with  more  or  less  cogency  to  its  proof.  "Con- 
structive" notice  includes  all  other  instances  in  which  the  informa- 
tion thus  directly  communicated  cannot  be  shown,  but  the  informa- 
tion is  either  conclusively  presumed  to  have  been  given  and  received 
from  the  existence  of  certain  facts,  or  is  implied  by  a  prima  facie 
presumption  of  the  law  in  the  absence  of  contrary  proof. 

§  594.  Definition.— Judges  and  text-writers  have  seldom  attempt- 
ed to  define  notice  in  the  abstract,  but  have  generally  contented 
themselves  with  specifying  instances,  or  desci'ibing  its  kinds  and 
etfects.  Within  the  meaning  of  the  rules,  notice  may,  I  think,  be 
correctly  defined  as  the  information  concerning  a  fact  actually  com- 
municated to  a  part}"  by  an  authorized  person,  or  actually  derived 
by  him  from  a  proper  source,  or  else  presumed  by  law  to  have 
been  acquired  by  him,  which  information  is  regarded  as  equivalent 
///  its  legal  effects  to  full  knowledge  of  the  fact,  and  to  which  the 
law  attributes  the  same  consequences  as  would  be  imputed  to 
knowledge.  It  should  be  most  carefully  observed  that  the  notice 
thus  defined  is  not  knowledge,  nor  does  it  assume  that  knowledge 
necessarily  results.  On  the  other  hand,  the  information  which  con- 
stitutes the  notice  may  be  so  full  and  minute  as  to  produce  complete 
knowledge.  Although  an  actual  knowledge  is  not  necessarily 
assumed  to  result,  yet  in  many  instances,  as  Avill  be  seen, 
the  party  is  not  jiermitted  to  show  this  fact,  but  the 
same  consequences  follow  with  respect  to  his  rights  and 
interests  as  though  he  had  obtained  real  knowledge.  The  cor- 
rectness of  the  definition  which  I  have  formulated  will  appear  from 
a  comparison  of  all  the  cases  hereafter  cited  in  the  discussion  of 
this  section.  In  dealing  with  the  subject,  great  care  shoulil  be 
taken  to  distinguish  between  notice  and  the  evidence  by  which 
it  is  established.  The  personal  communication  (tf  information  which 

*  Lloyd  V.  Bank.-^,  L.  I^.  .3  CIi.  488,  400,  per  Lor.l  Cairns. 


§  596  E<^L  ITY    JURISPKUDEXCE.  200 

eoustitiites  notice  is  a  fact  which  may  be  proved  by  any  kind  of 
competent  evidence  submitted  to,  weighed,  and  passed  upon  by  the 
tribunal  which  decides  matters  of  fact.  Whenever  the  notice  is 
inferred  by  a  conclusive  or  prima  facie  presumption  from  certain 
facts,  the  office  of  evidence  is  to  prove  the  existence  of  those  facts. 
Notice  is  either  actual  or  constructive;  but  the  legal  effect  of  each 
land,  when  established,  is -exactly  the  same.^ 

§  595.  Actual  Notice. — Actual  notice  is  information  concerning 
the  fact, — as,  for  example,  concerning  the  prior  interest,  claim,  or 
right, — directly  and  personally  communicated  to  the  party .^  The 
distinction  between  actual  and  constructive  notice  does  not  pri- 
marily depend  upon  the  amount  of  the  information,  but  on  the  man- 
ner in  which  it  is  obtained,  or  assumed  to  have  been  obtained. 
In  actual  notice  information  is  not  inferred  by  any  presumption  of 
law;  the  personal  communication  of  it  is  a  fact,  and,  like  any  other 
fact,  is  to  be  proved  by  evidence.  The  information  maij  be  so 
full,  minute,  and  circumstantial,  that  the  party  receiving  it  thereby 
acquires  a  complete  knowledge  of  the  prior  fact  affecting  the 
transaction  in  which  he  is  then  engaged,  or  it  may  fall  far  short 
of  conveying  such  knowledge.-  Again,  the  evidence  may  be  so  di- 
rect, positive,  and  overwhelming  as  to  establish  the  fact  that  the 
information  was  personally  given  and  received  in  the  most  con- 
vincing and  unequivocal  manner,  or  it  may  be  entirely  indirect  and 
circumstantial.  Wherever,  from  competent  evidence,  either  direct 
or  circumstantial,  the  court  or  the  jury  is  entitled  to  infer,  as  a  con- 
clusion of  fact,  and  not  by  means  of  any  legal  presumptions,  that  the 
information  was  personally  communicated  to  or  received  by  the 
party,  the  notice  is  actual.  In  short,  actual  notice  is  a  conclusion 
of  fact,  capable  of  being  established  by  all  grades  of  legitimate 
evidence."'' 

§  596.  When  Shown  by  Indirect  Evidence. — It  is  admitted  by  all 
text-writers  and  by  many  judges  that  much  confusion  and  inaccu- 
racy of  language  are  exhibited  in  the  decisions  concerning  actual 
and  constructive  notice;  notices  are  not  infrequently  called  "con- 
structive," which  are  really  "actual,"  and  the  ruJes  governing  the 
two  are  confounded.^    That  the  party  has  knowledge  or  information 

^Prosser  v.  Kice,  28  Beav.   68,  74. 
^    '  "Notice  is  actual  -when  the  purchaser  is  aware  of  the  adverse  claim  or  title, 
or  has   such   information  as  would   lead   to   knowledge":     Am.    note   in   2   Lead. 
Cas.  Eq.,  4th  Am.  ed.   144. 

=  Wniiamson  v.   Brown,  15  X.   Y.  354,  H.  &  B.  80. 

^Knapp  V.  Bailey.  79  Me.  105.  1  Am.  St.  Rep.  25)5.  9  .Ml.  122,  H.  &  B,  75; 
Williamson  v.  Brown,  15  N.  Y.  .354,  H.  &   B.'Sfi. 

MVilliamson  v.  Brown,  15  N.  Y.  354,  H.  &  B.  8(1.  per  S.  L.  Selden,  J.  One 
illustration  will  suffice.     A  purchased  land   from   B.     A   third   person.  C,  from 


^01  CO.NCKKXINU     .NOTICE.  §  596 

of  facts  sufticient  to  put  him  upon  an  inquiry  has  often  been 
treated  as  peculiarly  the  characteristic  of  constructive  notice.  In 
truth,  however,  this  test  is  equally  applicable  to  every  instance  of 
actual  notice  inferred  by  proces'S  of  rational  deduction  from  cir- 
cumstantial evidence.  Tlie  distinction  is  plain  and  natural.  In 
all  cases  of  constructive  notice,  there  is  no  evidence  which  directly 
tends  to  show  that  any  information  of  the  prior  contiicting  claim 
was  personally  brought  home  to  the  consciousness  of  the  party 
affected;  the  particular  facts  of  which  he  is  shown  to  have  knowl- 
edge do  not  directly  tend  to  sluiw  such  information ;  but  from  these 
facts  the  legal  presumption  arises,  either  conclusive  or  rebuttable, 
that  the  information  was  received.  In  all  cases  of  actual  notice 
inferred  from  circuiustantial  evidence,  the  facts  proved  do  directly 
tend  to  show  that  infornmtion  of  the  prior  contiicting  claim  was 

Avhoni  B  obtained  the  propertj',  has  a  claim  upon  it;  and  the  question  is, 
Aviiether  A  took  with  notice  of  C's  claim.  There  is  no  direct  evidence  of  any 
information  given  to  A  by  either  B  or  C.  But  is  proved  tliat  A  is  B's  son,  and 
has  constantly  lived  in  his  house  and  been  a  member  of  his  family;  and  for 
several  years  A  has  been  acquainted  with  his  father's  business  affairs,  and  has 
taken  an  active  part  in  their  management;  that  A  was  familiar  with  the 
transaction  by  which  B  obtained  the  premises  from  C,  and  aided  his  father  in 
negotiating  the  contract  with  C,  etc.  If  from  these  and  similar  facts  a  notice 
should  be  inferred,  it  would  be  an  actual  notice,  and  not  constructive.  Xo  legal 
presumptions  would  aid  the  court  or  jury;  they  would  simply  arrive  at  the 
conclusion,  by  a  process  of  rational  argument,  that  at  some  time  informa- 
tion or  knowledge  of  C's  claim  was  directly  and  personally  communicated  to 
or  acquired  by  A,  in  exactly  the  same  manner  as  a  jurj'  may  infer  that  a  certain 
man  and  woman  were  at  some  past  time  actually  married,  from  the  circum- 
stantial evidence  of  their  coliabitation  and  holding  each  other  out  to  the 
world  as  husband  and  A\ife.  The  only  question  of  law  in  siich  a  case  is, 
whether  the  evidence  is  sulticient  to  warrant  the  finding  of  fact  tliat  information 
or  knowledge  of  C's  claim  was  actually  acquired  by  A.  It  is  true  that  many 
cases  say,  under  such  circumstances,  that  "the  facts  proved  are  sufficient  to 
put  the  party,  A,  upon  an  inquiry,  and  if  he  neglected  to  make  a  due  inquiry 
lie  nnist  be  charged  with  notice."  Such  a  mode  of  statement  is  entirely  proper; 
but  it  is  incorrect,  misleading,  and  a  confounding  of  the  two  kinds  of  notice, 
to  say  under  such  circumstances  that  if  the  party  neglects  to  make  a  due 
inquiiy  he  is  presumed  io  have  received  ihe  informntion  which  constitutes 
notice.  In  all  cases  of  information  constituting  actual  notice  inferred  from 
circumstantial  evidence,  this  statement  that  "the  facts  proved  are  sufficient 
to  put  the  party  upon  an  inqiury,"  etc.,  is  simply  tantamount  to  saying  that 
tlie  facts  and  circvnnstances,  when  uncontradicted  and  imexplained,  are  suffi- 
cient evidence  to  warrant  a  finding  that  the  information  was  directly  and 
personally  acquired  by  tlie  party,  but  tiiat  the  facts  and  circumstances  may 
be  sufficiently  explained  by  the  party's  showing  that  he  did  make  a  reasonable 
inquiry,  and  did  seek  for  information,  but  failed  to  obtain  it.  By  such  means 
the  conclusion  which  would  otherwise  have  been  drawn  from  the  luiexplained 
circiunstances  is  overcome  and  negatived.  For  illustrations  of  these  positions, 
see  cases   cited   in   the   next   following  note. 


§  597  EQUITY    JLTIISriiUDENCE.  26'i 

per.sonally  broiiglit  home  to  the  consciousness  of  the  party.  The 
court  or  jur}'  infers  from  the  facts  proved,  by  a  process  of  rational 
vleduetiou.  hut  witliout  the  aid  of  any  legal  presumption,  that  such 
information  was  actually  received.  In  weighing  this  evidence, 
the  tribunal  may  properly  ask  whether  the  facts  proved  were  sufti- 
cient  to  put  the  party  upon  an  inquirj^,  so  that,  if  he  went  on  with 
the  transaction  Avithout  making  any  inquiry,  his  actual  receipt 
of  information  and  consequent  notice  is  a  legitimate  or  necessary 
conclusion ;  or  whether,  on  the  other  hand,  he  prosecuted  an  in- 
<piiry  to  such  an  extent  and  in  such  a  manner  that  his  actual 
failure  to  acquire  information  is  a  just  inference  of  fact.-  A  careful 
examination  of  the  cases  concerning  notice  inferred  from  circum- 
stances will  show  that  in  a  large  proportion  of  them  the  notice 
was  actual,  and  not  constructive;  and  that  one  or  the  other  of  the 
following  questions  was  in  reality  considered  and  determined  by 
the  court :  1.  It  being  shown  that  the  party  had  been  informed 
of  certain  facts,  and  it  further  appearing  that  he  had,  notwithstand- 
ing such  information,  and  without  making  any  inquiry  respecting 
its  truth,  gone  on  and  completed  the  transaction,  whether  the  court 
or  jury  were  warranted  in  inferring  as  a  legitimate  conclusion  from 
the  evidence  that  he  had  also  received  that  direct,  personal  informa- 
tion concerning  the  existence  of  a  prior  conflicting  claim  which  the 
law  calls  "actual  notice."  2.  It  being  shown  that  the  party  had  been 
informed  of  certain  facts,  and  it  further  appearing  that  he  had  there- 
upon made  inquiry  respecting  the  truth  of  such  information  before 
he  completed  the  transaction,  whether  the  court  or  jury  were  war- 
ranted in  inferring  as  a  legitimate  conclusion  from  the  whole  evi- 
dence, either  that  he  had  or  had  not  received  that  direct  personal 
information  which  constitutes  actual  notice. 

§  597.  What  Constitutes  It :  Rumors ;  Putting  on  Inquiry,  etc.— 
A  purchaser,  or  person  obtaining  any  right  in  specific  property, 
is  not  affected  by  vague  rumors,  hearsay  statements,  and  the  like, 
concerning  prior  and  conflicting  claims  upon  the  same  property; 
and  the  reason  is,  that  such  kind  of  reports  and  statements  do 
not  furnish  him  with  any  positive  information,  any  tangible  clew, 
by  the  aid  of  which  he  may  commence  and  successfully  prosecute 
au  inquiry,  and  thus  discover  the  real  truth;  his  conscience  is  there- 
fore not  bound.^  On  the  other  hand,  the  propositon  is  established 
by  an  absolute  unanimity  of  authority,  and  is   equally  true  both 

^Knapp  V.  Bailfv.  70  Me.  105,  0  Atl.  122.  1  Am.  St.  Rep.  205,  H.  &  B.  75; 
13^o^^^l  v.  Volkening',  04  X.  Y.  76;  Brinkman  v.  Jones,  44  Wis.  498;  Pringle  v. 
J)unn,  37  Wis.  440,  19  Am.  Rep.  772,  H.  &  B.  02. 

^Raymond  v.  Fiavol,  27  Or.  219,  40  Pae.  158:  Wilson  v.  McCnllou-rh.  23 
I'a.  St.  440,  02  Am.  Lcc.  347.     See,  also,  g  002. 


■^^')j  COXCEKNIXCi     NOTICE.  §  599 

ill  its  application  to  coDstnu'tivc  notice,  and  to  actual  notice  not 
proved  by  direct  evidence  but  inferred  from  circumstances,  that 
if  the  party  obtains  knowledge  or  information  of  facts  tending 
to  show  the  existence  of  a  prior  right  in  conflict  with  the  interest 
which  he  is  seeking  to  obtain,  and  which  are  sufficient  to  put  a 
reasonably  prudent  man  upon  in<iuiry,  then  it  may  be  a  legitimate, 
and  perhaps  even  necessary,  inference  that  he  acquired  the  further 
information  which  constitutes  actual  notice.  This  inference  is  not, 
ill  case  of  actual  notice,  a  presumption,  nuich  less  a  conclusive 
presumption,  of  law;  it  may  be  defeated  by  proper  evidence.  If 
the  party  shows  that  he  made  the  inquiry,  and  prosecuted  it  with 
reasonable  diligence,  but  still  failed  to  discover  the  contlictiiig 
claim,  he  thereby  overcomes  and  destroys  the  inference.-  If,  how- 
ever, it  appears  that  the  party  obtains  knowledge  or  information 
of  such  facts,  which  are  sufficient  to  put  a  prudent  man  upon  in- 
({uiry,  and  which  are  of  such  a  nature  that  the  inquiry,  if  proseciiied 
iriih  r<'a--iOtiahle  diligence,  iroii/d  crrtainlij  lead  to  a  discovcnj  of  the  con- 
flictiiuj  claim,  then  the  inference  that  he  ac(iuired  the  information 
constituting  actual  notice  is  necessary  and  absolute;  for  this  is 
only  another  mode  of  stating  that  the  party  was  put  upon  inquiiy ; 
that  he  made  the  inquiry  and  arrived  at  the  truth.  Finally,  if  it 
appears  that  the  party  has  knowledge  or  information  of  such  facts 
sufficient  to  put  a  prudent  man  npon  inquiry,  and  that 
lie  wholly  neglects  to  make  any  inquiry,  or  having  begun  it 
fails  to  prosecute  it  in  a  reasonable  manner,  then,  also,  the  inference 
of  actual  notice  is  necessary  and  absolute.  These  three  propositions 
substantial I3'  embrace  all  instances  of  actual  notice  proved  by  cir- 
cumstantial evidence,  and  they  are  illustrated  by  a  vast  number  of 
decisions,  each  depending  upon  its  own  particular  circumstances.^ 

§  598,  Special  Rules. —  ....  The  whole  inquiry  is  reduced  to 
the  examination  of  two  entirely  distinct  questions,  w^hich  should 
not  be  confounded,  namely:  "What  kind  of  information  personally 
communicated  to  a  party  constitutes  the  actual  notice  proved  by 
direct  evidence?  What  facts  are  sufficient  to  put  a  party  upon 
an  inquiry,  so  that,  if  not  overcome  by  contrary  proofs,  they  would 
constitute  the  actual  notice  inferred  from  circumstantial  evidence? 

§  599.  5ame — Kind  and  Amount  of  Information  Necessary. — 
In  the  first  of  these  two  incaiiries,  it  is  assumed  that  some  informa- 
tion is  shown  by  direct  evidence  to  have  been  personally  commuui- 

«See,  also,  §  601. 

^'Knapp  V.  Bailey,  70  Me.  19.5,  1  Am.  SI.  Pvop.  20.5,  0  Atl.  122,  H.  &  B.  75: 
Sensenderfer  v.  Kempf.  83  Mo.  581  :  Williamson  v.  Brown,  15  N.  Y.  354,  'Mil, 
H.  &  B.  86:  Carter  v.  City  of  Portland,  4  Oreg.  339,  350;  Pringle  v,  Dunn, 
37   Wis.  440,  465,  10  Am.  Rep.  772,   H.  &   B.   02. 


§  GOO  ■  EQUITY    JURISPRUDENCE.  264 

eated  to  the  party,  and  the  sole  question  is,  What  kind  or  amount 
of  such  information  will  constitute  actual  notice,  and  so  bind 
his  conscience  ?  Whenever  A  is  dealing  concerning  certain  property 
with  B,  who  acts  as  owner,  grantor,  vendor,  or  mortgagor,  as  the 
case  may  be,  a  definite  statement  made  to  A  by  a  third  person,  C, 
that  he  has  or  claims  some  conflicting  interest  or  right,  legal  or 
eciuitable,  in  the  subject-matter,  is  a  sufficient  actual  notice  to 
affect  A's  conscience.  The  statement  need  not  be  so  full  and 
detailed  that  it  communicates  to  A  complete  knowledge  of  the 
opposing  interest  or  right;  it  is  enough  that  it  is  so  definite  as  to 
assort  the  existence  of  an  interest  or  right  as  a  fact.^  Under  the 
same  circumstances,  if  A  is  informed  by  the  grantor  or  vendor,  B, 
that  the  subject-matter  is  encumbered,  or  is  subject  to  an  outstand- 
ing lien  or  equitable  claim,  or  that  he  himself  has  not  for  any  reason 
a  title  free  and  perfect,  such  information  is  actual  notice;  it  need 
not  state  all  the  particulars,  nor  impart  complete  knowledge  of  the 
conflicting  interest,  encumbrance,  or  right;  it  is  enough  that 
A  is  reasonably  informed,  and  has  reasonable  grounds  to  believe, 
that  the  conflicting  right  exists  as  a  fact.-  Of  course  the  statement 
by  B  may  be  so  vague  and  uncertain,  or  it  may  be  so  accompanied 
by  additional  explanatorj-  or  contradictory  matter,  that  it  does  not 
affect  the  conscience  of  the  purchaser,  A,  and  does  not  amount  to 
an  actual  notice.^  AVherever,  linder  the  circumstances  above  de- 
scribed, information  given  by  the  grantor  or  vendor  with  whom 
the  purchaser  is  dealing,  or  by  the  holder  of  the  conflicting  claim 
or  right,  would  constitute  an  actual  notice,  the  same  information 
may  be  communicated  by  a  relative  or  friend  of  either  of  these 
persons,  and  would  then  operate  in  like  manner  as  actual  notice, 
provided  the  party  so  repi'esented  was  prevented  by  absence,  sick- 
ness, or  other  disability  from  making  the  communication  in  his  own 
person  and  on  his  own  behalf.* 

§600.  Same — What  Circumstances  Sufficient. — The  second  ques- 
tion is.  What  facts  are  sufficient  to  put  the  party  upon  an  inquiiy, 
so  that  he  may  thereby  be  charged  with  the  actual  notice  inferred 
from  circumstantial  evidence?  Among  the  facts  to  Avhich,  as  evi- 
dence, such  force  has  been  attributed  are:  Close  relationship,  per- 
sonal intimacy,  or  business  connections  existing  between  the  purcha- 

'  Barnes  v.  McClinton,  3  Penn.  &  W.  fw,  23  Am.  Dec.  62  (opinion  hv  Gibson, 
C.    J.    ). 

-Price  V.  McDonald,  1  Md.  403,  54  Am.  Doc.  657:  Cms  v.  Evans,  ]  Dak. 
387,    1    Scott,    546. 

^Buttrick  v.  Holden,  13  Met.  .35.5.     See  post,  §601. 

*  Butcher  v.  Yocum,  61  Pa.  (St.  168,  171,  100  Am.  Dec.  625;  Ripple  v,  Rawle, 
1  Eawle  386. 


S(ir>  C'ONCKKXIXG    NOTICE.  §  001 

cer  and  the  party  with  whom  he  is  dealing:,  or  l)etween  him  and  the 
holder  of  the  adverse  claim  ;^  great  inadequacy  of  the  price,  which 
may  arouse  the  purchaser's  suspicion,  and  put  him  upon  an  inquiry 
as  to  the  reasons  for  selling  the  property  at  less  than  its  apparent 
value;-  the  sigiit  or  knowledge  of  visible  material  objects  upon  or 
connected  with  the  subject-matter,  Avhich  maj^  reasonably  suggest 
the  existence  of  some  easement  or  other  similar  right.^  The  irregular, 
defective,  or  improper  recording  of  an  instrument,  although  clearly 
not  a  constructive  notice  imder  the  statute,  may  be  sufficient  to  put 
a  purchaser  upon  inquiry,  and  so  constitute  an  actual  notice;  and 
the  inspection.  ])erusal.  or  knowledge  of  a  writing  which  purported 
to  be  a  certified  or  oi^eial  copy  of  the  instrument  thus  defectively 
or  improperly  recorded  should  produce  the  same  effect,  although 
upon  this  particular  point  there  seems  to  be  some  conflict  of  judicial 
opinion.  It  has  even  been  held  that,  under  special  circumstances,  a 
jury  or  court  miuht  assume  as  an  inference  of  fact,  in  the  absence 
cf  any  positive  evidence,  that  a  purchaser  examined  the  public  re- 
cords, and  thus  obtained  information  amounting  to  an  actual  notice 
from  a  conveyance  im[)erfectly  recorded,  or  improperly  recoi'ded, 
through  some  defect.* 

§  601.  Same — Effect  of  Explaining-  or  Contradicting  the  Informa- 
tion Given. — In  concluding  this  branch  of  the  discussion,  the  impor- 
tant question  remains  to  be  considered,  How  far  may  a  party  rely 
upon  the  whole  of  the  information  given  or  statement  made  to 
him  in  a  case  of  actual  notice?  In  other  words,  when  information 
is  given  or  a  statement  is  made  to  a  purchaser  which,  standing  alone, 
would, be  actual  notice,  or  at  least  would  be  sufficient  to  put  him 
upon  an  inquiry,  but  this  is  accompanied  by  further  explanatory  or 
contradictory  declarations  which  tend  to  nullify  or  destroy  the 
effect  of  the  former  language,  how  far  may  the  purchaser  accept 
and  act  upon  the  entire  communication?  or  how  far  is  he  affected 
by  that  portion  which  tends  to  show  the  existence  of  a  prior, 
outstanding,  and  conflicting  claim?  If  the  only  information  given 
to  the  purchaser  concerning  the  existence  of  an  outstanding  claim, 
contract,  or  equity  affecting  the  property  is  communicated  by  a 
third  pei'son, — a  stranger  having  no  interest  in  the  matter, — and 

^It  is  hardly  to  be  supposed,  liowevcr.  tliat  notice  could  be  inferred  from 
mere  relationship  or  intimacy,  without  anji  other  circumstances;  Fluegel  v. 
Henschel,  7  N.  D.  27G,  fif!  Am.  St.  Rep.  042.  74  X.  W.  996;  Tillinghast  v. 
Champlin,  4  K.   1.  173.  204,  215,  67  Am.  Dec.  510. 

=  Dunn  V.  J?arnum,  51  Fed.  355.  10  I\  S.  App.  8(1.  2  C.  C.  A.  205:  Connecli- 
cut  Mut.  Life  Ins.  Co.  v.  Smilh.  117  :\1.).  201.  :1S  Am.  St.  Rep.  050.  22  S.  \V. 
623;  Hoppin  v.  Doty,  25  Wis.  573.  5!)!. 

^HerA^ey  v.  Smith,  22  Beav.  299:    Paul  v.  Connersville  etc.  R.  R.,  51  Ind.  527. 

^Hastintrs  v.  Cutler,  24   X.   H.   481. 


§  601  EQUITY    JURISPRUDENCE.  366 

this  person  also  states  that  such  contract  has  been  rescinded,  or 
such  claim  or  equity  has  been  abandoned  or  discharged,  and  no 
longer  exists,  the  purchaser,  it  seems,  may  rely  on  the  whole  com- 
munication; it  is  not  sufficient,  in  the  absence  of  special  reasons, 
for  believing  the  former  part  and  rejecting  the  latter,  to  put  him 
upon  an  inquiry,  and  does  not  therefore  amount  to  an  actual  notice. 
This  conclusion  results  from  the  obvious  fact  that  such  an  informant 
has  no  personal  interest  to  deceive  the  purchaser  by  misrepresentinu" 
or  concealing  the  truth.^  When,  however,  the  grantor,  vendor,  or 
mortgagor  admits  that  his  title  was  defective  or  encumbered,  or 
that  there  was  some  outstanding  claim  upon  or  equity  in  the  prop- 
erty, or  makes  any  other  communication  which,  unexplained,  would 
constitute  an  actual  notice,  but  adds  a  further  declaration  to  the 
effect  that  such  defect  has  been  cured,  or  encumbrance  removed, 
or  claim  or  equity  rescinded  and  destroj^ed,  the  purchaser,  accord- 
ing to  the  weight  of  authority,  is  not  warranted  in  accepting 
and  relying  upon  this  explanation  or  contradiction ;  the  information 
obtained  under  such  circumstances  and  from  such  a  source  is  suffi- 
cient to  put  a  prudent  man  upon  an  inquiry.  The  reason  of  this 
is  plain.  The  informant  is  under  a  strong  personal  interest  to 
misrepresent  or  conceal  the  real  facts.  While  the  former  branch 
of  his  communication  is  made  against  his  interest,  and  is  therefore 
more  likely  to  be  true,  the  latter  part  is  in  conformity  with  his 
personal  interest,  and  is  essentially  untrustworthy.-  Finally,  a  pur- 
chaser is  fully  warranted  in  accepting  and  acting  upon  the  state- 
ments or  conduct  of  the  person  who  holds  or  asserts  a  conflicting' 
interest,  claim,  or  right,  if  he,  when  interrogated  upon  the  subject, 
either  keeps  silence,  or  denies  the  existence  of  any  claim,  or  affirm- 
atively declares  it  to  be  of  a  certain  kind  or  amount;  such  a  person, 
even  if  not  absolutely  estopped  from  afterwards  setting  up  any 
claim,  or  a  claim  different  from  his  representations,  would  certainly 
be  debarred  from  afterwards  alleging  that  the  purchaser  was  put 
upon  an  inquiry,  and  was  chaiged  with  notice."  If  a  purchaser, 
having  been  put  upon  an  inquiry,  prosecutes  it  with  reasonable 
and  due  diligence,  without  discovering  any  adverse  right,  the  infer- 
ence of  an  actual  notice  received  by  him  is  overcome  and  destroyed.* 
What  is  a  due  inquiry  in  these  instances  of  actual  notice  inferred 

'Rogers  v.   Wiley,   14   m.   05,   5(5  Am.   Doc.   401. 

-Tlie  rule,  however,  is  not  puslietl  so  far  by  the  courts  as  to  work  roal  injustke 
to  innocent  puichasers  who  have  been  manifestly  deceived  and  misled.  Jones 
V.  Smith,  1  Hare,  43;  Simpson  v.  Hinton,  88  Ala.  527,  7  South.  264. 

''Pearson  v.  Morgan,  2  Bro\ni  Ch.  .388;  Burrowes  v.  Locke,  10  Ves.  470, 
1   Scott  559;   Barrett  v.  Baker,   13fi  Mo.  512,  37   S.  W.   130. 

'Mercantile  Mat.  Bank  v.  Parsons,  54  31inn.  5G,  40  Am.  St.  Pep.  2il!l,  55  N.  W. 
825. 


267  CONCERXJXCi     NOTICE.  §  oO-i 

from  eircimistiiiitial  evidence  must,  to  a  .ureat  extent,  depend  upon 
the  particular  facts  of  each  case.  It  is  well  settled,  however,  that 
mere  examination  of  the  record,  and  finding  no  adverse  title  or 
claim  recorded,  is  not  due  inquiry  by  one  who  has  been  put  upon 
inquiry  by  circumstances  tending"  to  show  the  existence  oi  a  eon- 
fiieting  title,  claim,  or  right.^ 

§  602.  Same — By  Whom  and  when  Information  must  be  Given. — 
Such  being  its  general  nature,  it  is  impossible  to  detiue  by  a  single 
formula  what  will  amount  to  an  actual  notice  sufficient  to  affect 
the  conscience  of  the  party  receiving  it,  and  courts  have  not  at- 
tempted to  lay  down  any  such  criterion ;  each  case  must,  to  a 
considerable  extent,  depend  upon  its  own  particular  circumstances. 
The  following  ancillary  rules,  however,  bearing  upon  the  question, 
have  been  well  settled.  Where  an  actual  notice  is  relied  upon,  in 
order  to  be  binding  it  must  come  from  some  person  interested  in 
the  property  to  be  affected  by  it;  and  it  is  said  that  it  must  be 
given  and  received  iii  the  course  of  the  very  transaction  itself 
concerning  the  property  in  which  the  parties  are  then  engaged. 
As  a  necessary  consequence,  no  mere  vague  reports  from  strangers, 
jior  mere  general  statements  by  individuals  not  interested  in  the 
property,  that  some  other  person  claims  a  prior  right  or  title,  will 
amount  to  an  actual  notice  so  as  to  bind  the  conscience  of  the 
party;  nor  will  he  be  bound  by  a  notice  given  in  some  previous 
and  distinct  transaction,  which  he  might  have  forgotten.'  It  should 
be  most  carefully  observed  that  the  decisions  here  referred  to, 
and  the  rules  which  they  snstain,  are  dealing  exclusively  with  the 
artificial  conception  of  an  actual  notice,  which  is  regarded  as  affect- 
ing the  conscience  of  the  party,  and  producing  results  upon  his 
rights  in  the  same  manner  and  to  the  same  extent  as  though  it 
amounted  to  full  knowledge,  although  it  may  j^erhaps  fall  far  short 
of  such  a  consummation.  The  cjuestion  as  to  the  consequences  of 
such  knowledge  acfpiired  in  some  other  manner  or  from  some  other 
source  is  therefoi-e   left  untouched. 

§  603.     Effect  of  Knowledge.'— 

§  604.  Constructive  Notice. — Constructive  notice  assinnes  that 
no  information  concerning  the  prior  fact,  claim,  or  right  has  been 
directly  and  personally  communicated  to  the  party;  at  least,  such 
information  is  not  shown  by  evidence,  but  is  only  infcrrrd  hi/  oj)rr(tf.ioii 

••  Pringle  v.  Dunn.  .37  Wis.  449,  46.5.  407,  19  Am.  Pxop.  772.  IT.  &  B.  92. 

'  Butcher  v.  Stapeley,  1  Vcrn.  .3(5.3,  1  Ames  Eq.  .Tur.  279,  2  Keener  022,  2 
Soolt  188;  Wilson  v. .^rcCullougli,  23  Pa.  St.  440,  02  Am.  Dec.  347;  Raymona 
V.    Flavel.   27   Orefj.   219.   40   I'ae.    158. 

'On  this  subject  see  ante,  §  092;  also.  ^lontcfonierv  v.  Kc|)])('l.  75  Cal.  128, 
7  Am.  St.  Rep.  12.5.  19  Pae.  178;  l^utehcr  v.  Yor-uni.  C]  Pa.  St.  108.  171.  100 
Am.  Dec.  625;  Pringie  v.  Ihiiiii.  37  Wis.  449.  19  Am.  P.]..  772.  H.  &  P.  92. 


§  GOO  .  EQUITY    JURISPRUDEXCE.  268 

of  legal  [ircsinnptiou.^.  It  embraces  all  those  instances,  widely  dift'er- 
ing"  in  their  external  features,  in  which,  either  from  certain  extra- 
neous facts,  or  from  certain  acts  or  omissions  of  the  party  himself, 
disclosed  by  the  evidence,  the  information  is  condusively  presumed 
to  have  been  given  to  or  received  by  him.  or  is  inferred  by  a  prima 
facie  presumption  of  the  law  in  the  absence  of  contrary  proof. 

^  606.  When  the  Presumption  is  Rebuttable. — Since  constructive 
notice,  as  heretofore  defined,  includes  all  the  instances  in  which  in- 
formation concerning  a  prior  fact,  claim,  or  right  is  inferred  either 
l)y  a  conclusive  or  by  a  rebuttable  presumption  of  law,  it  would  be 
a  nu)st  important  aid  in  the  further  discussion  if  we  could  discover 
a  general  criterion  for  distinguishing  these  tAvo  classes,  and  deter- 
mining in  what  cases  the  presumption  is  conclusive,  and  in  what  it 
is  only  prima  facie  and  i-ebuttable.  It  may  not  be  possible  to 
!ay  down  a  rule  which  is  absolutely  universal  in  its  operation,  and 
which  furnishes  a  certain  test  for  every  case:  but  a  rule  may  be 
formulated  which  is  quite  general  in  its  application,  and  which 
gives  a  practical  test  sufficient  for  many  instances  differing  widely 
in  their  external  features.^  Wherever  a  party  has  information 
or  knowledge  of  certain  extraneous  facts,  wliicli  do  not  of  tlietnselves 
constitute  actual  notice  of  an  existing  interest,  claim  or  right  in  or 
to  the  subject-matter,  but  which  are  sufficient  to  put  him  upon  an 
inquiry  concerning  the  existence  of  a  conflicting  interest,  claim, 
or  right,  then  he  is  charged  with  constructive  notice,  because  a 
presumption  of  law  arises.  ...  As  an  illustration,  if  a  party  is 
negotiating  for  the  purchase  of  certain  land,  and  sees  or  learns 
that  the  land  is  not  in  the  intended  grantor's  possession,  but  is 
possessed  and  occupied  by  a  third  person,  a  stranger,  this  fact  of 
possession  is  sufficient  to  put  the  expected  grantee  upon  an  inquiry 
concerning  the  nature  of  the  occupant's  interest.  The  information 
or  knowledge  of  such  extraneous  facts  which  are  sufficient  to  put 
the  party  upon  an  inquiry  constitutes  a  constructive  notice  of  the 
conflicting  claim  or  interest  which  does  exist,  because  a  presumption 
thence  arises.  This  presumption,  in  all  cases  of  this  class,  is  really 
a  double  one.  The  party  is  either  presumed  to  have  made  the 
inquiry,  and  to  have  carried  it  out  until  he  obtained  full  knowledge 
of  the  outstanding  conflicting  interest,  claim,  or  right,  or  else  to  have 
intentionally  and  deliberately  refrained  from  making  the  inquiry 
or  following  it  up  in  a  reasonable  and  proper  manner  for  the 
very  purpose  of  avoiding  the  knowledge  which  he  might  have  ac- 
quired. The  presumption  is  clearly  one  of  law.  and  not  a  mere 
inference    of   fact:   because   upon   the   bare   proof   that    the   party 

M^■illiamson  v.  r.rf)\vn,   1.5  N.   Y.  .354,  H.  e^  J?.  Sfi. 


269  CONCERNING     NOTICE.  i;  (i07 

had  the  intoniiation  of  facts  sufficient  to  i)ut  him  upon  an  iiKiniry, 
the  inference  is  at  once  made  without  any  furtiier  evidence  in  its 
support,  and  in  the  absence  of  all  contrary  evidence  it  is  ab- 
solute  and   conclusive. - 

^  607.  Same — Rebutted  by  Due  Inquiry. — It  may  be  stated  as  a 
general  proposition  that  in  all  instances  of  constructive  notice  be- 
longing to  this  class,  where  it  arises  from  information  of  some 
extraneous  facts,  not  of  themselves  tending  to  show  an  actual  notice 
of  the  conflicting  right,  but  sufficient  to  put  a  prudent  man  upon 
an  inquiry,  the  constructive  notice  is  not  absolute;  the  legal  pre- 
sumption arising  under  the  circumstances  is  only  prima  facie;  it 
may  be  overcome  by  evidence,  and  the  resulting  notice  may  thereby 
be  destroyed.  Whenever,  therefore,  a  party  has  merely  received 
information,  or  has  knowledge  of  such  facts  sufficient  to  put  him 
on  an  inquiry,  and  this  constitutes  the  sole  foundation  for  inferring 
a  constructive  notice,  he  is  allowed  to  rebut  the  prima  facie  pre- 
sumption thence  arising  by  evidence;  and  if  he  shows  by  convincing 
evidence  that  he  did  make  the  inquiry,  and  did  prosecute  it  with 
all  the  care  and  diligence  required  of  a  reasonably  prudent  m?in, 

-  In  several  of  the  later  English  cases  a  very  strong  disposition  has  been 
sho\^■n  to  limit  and  restrict  the  effect  of  the  constructive  notice  which  arises 
from  the  existence  of  facts  and  circumstances  sufficient  to  put  the  party  on 
an  inquiiy.  This  limitation  is  applied  both  where  the  party  made  some  inquiry 
and  relied  upon  what  he  liad  learned  thereby,  ana  whei-e  he  made  no  in- 
quiry at  all.  Ware  v.  Lord  Egmont,  4  De  Gex,  :\r.  &  G.  4()0.  47-3.  by  Lord 
Cranworth:  llaihy  v.  Barnes  (1894),  1  Ch.  25.  It  is  plain  that  the  criterion,  as 
estahlished  by  these  most  recent  English  cases,  is  no  longer  the  mere  want 
of  that  reasonable  care  and  diligence  in  making  an  inquiry  which  would  be  used 
by  a  prudent  man:  the  failure  to  pi'osecute  or  to  make  the  inquiry  must,  under 
the  circumstances,  amount  to  gross  or  culpable  negligence.  It  should  be  observed, 
liowever,  that  this  rule  is  confined,  and  is  intended  to  be  confined,  to  that  class 
of  constructive  notices  in  which  the  legal  presumption  is  rebuttable. 

The  American  courts  do  not  appear  to  have  adopted  this  most  recent  English 
rule.  Wherever  the  facts  and  circumstances  do  not  tend  to  show  actual  notice, — 
in  other  words,  where  the  facts  and  circumstances  are  not  simply  the  circum- 
stantial evidence  of  an  actual  notice, — the  test  of  constructive  notice  generally 
applied  by  the  American  courts  has  been,  whether  such  facts  are  sufficient 
to  ]Hit  a  prudent  man  upon  an  inquiry,  and  whether  an  in(piiry  has  been 
prosecuted  with  reasonable  care  and  diligence:  See  Cordova  v.  Hood.  17  Wall.  1  ; 
raml)ridge  Valley  Bk.  v.  Delano,  4S  N.  Y.  32G.  33(1.  330:  Baker  v.  Bliss.  39 
X.  V.  70,  74,  78;  Anthony  v.  Wheeler.  130  111.  128,  17  Am.  St.  Rep.  281, 
22  N.  E.  494;  Tillman  v.  Thomas.  87  Ala.  321.  13  Am.  St.  "Rep.  42.  0  South.  151. 
It  is  sometimes  difficult  to  distinguish  a  case  of  constructive  notice  arising  from 
extraneous  facts  sufficient  to  ]iut  the  party  upon  an  inquiry  from  a  case  of 
mere  actual  notice  der)onding  ujion  circumstantial  evidence:  and  the  two 
have  occasionally  been  confounded  by  the  decisions  themselves.  The  criterion 
as  given  in  the  text  will,  I  think,  render  the  distinction  sufficiently  plain  and 
practical. 


§  OUT  LQUIXY     JLlUsritUDEXCE.  270 

and  that  he  failed  to  discover  the  existence  of,  or  to  obtain  knowl- 
edge of,  any  conflicting  claim,  interest,  or  right,  then  the  presump- 
tion of  knowledge  which  had  arisen  against  him  will  be  completely 
overcome ;  the  information  of  facts  and  circumstances  which  he  had 
received  will  not  amount  to  a  constructive  notice.  What  will  amount 
to  a  due  inquiry  must  largely  depend  upon  the  circumstances  of  each 
case.'     If,  on  the  other  hand,  he  fails  to  make  any  inquiry,  or  to 

'  Tlic  (litrciciit  spcfifs  of  const rvK-tive  notice  in  wliich  the  Icj^al  presumption 
may  thus  be  overcome  seem  to  l)e  the  following:  1.  That  derived  wholly  from 
mere  extraneous  facts  and  circumstances  which  are  said  to  put  a  party  on 
inquiry,  which  are  matters  in  pais,  and  which  generally  consist  of  fraud,  con- 
cealments, neglects,  mistakes,  and  the  like,  by  third  persons;  2.  That  derived 
from  the  possession  or  tenancy  of  the  property  hy  some  third  person;  and  3.  To 
a  partial  extent,  that  derived  from  the  pendency  of  an  action  aflFecting  the 
property,  in  the  following  species  the  constructive  notice  seems  to  be  absolute 
aiul  the  presumption  conclusive:  I.  That  derived  from  a  statutory  recording 
or  registration  in  the  United  States:  2.  That  derived  from  the  statutoiy 
lis  pendens;  3.  That  derived  from  a  definite  recital  or  reference  in  an  instru- 
ment forming  an  essential  part  of  a  party's  chain  of  title;  and  4.  That  affecting 
a  principal,  where  an  actual  or  a  constructive  notice  has  been  duly  given 
to  his  proper  agent.  That  the  presumption  ninii  be  overcome  in  the  classes  of 
cases  first  above  mentioned  is  either  directly  or  inferentially  held  by  the  follow- 
ing decisions,  among  others:  Williamson  v.  Brown,  15  N.  Y.  354,  360,  H.  &  B. 
86;   Anthony  v.  Wheeler,   130   111.   T2S.    17  Am.   St.  Bep.  281,  22  N.  E.  494. 

Whenever  a  party  has,  by  means  of  information  concerning  extraneous  matters, 
been  put  upon  inquiry,  how  this  inquiry  should  be  made,  and  how  far  it  should 
be  prosecuted,  in  order  that  the  legal  presumption  may  be  overcome,  and  the 
constructive  notice  defeated,  although  the  party  may  still  have  failed  to  have 
ascertained  the  real  truth,  must  largely  depend  upon  the  particular  cii'cumstances 
of  each  case;  no  universal  rule  is  possible.  Much  help,  however,  may  be  derived 
from  a  comparison  of  the  decisions,  which  1  have  arranged  according  to  their 
general   subject-matter. 

1.  Examinution  of  ihe  Rrcords. — Examination  of  the  records  is  always  neces- 
sary, and  there  could  hardly  be  a  "due  inquiry"  without  it.  If  the  information 
oiven  points  to  the  existence  of  some  interest  or  claim  which,  if  it  exists  at  all, 
must  necessarily  appear  luion  the  record,  then  a  search  of  the  proper  record, 
and  a  discovery  that  no  such  claim  appeared  therein,  would  generally  be  sufficient ; 
the  "due  inquiry"  would  luive  been  prosecuted:  Barnard  v.  Campau,  29  Mich. 
162.  In  general,  an  examination  of  the  records  by  such  a  party  is  not  sufTicient. 
If  the  information  which  puts  him  on  inquiry  points  to  the  existence  of  some 
matter  in  pais,  some  interest  dehors  the  records,  or  which  would  not  necessarily 
be  shown  by  the  recoi'ds,  then  a  search  of  the  records  alone  is  not  "due 
inquiry," — if,  for  exam]ile.  the  supposed  claim  was  an  easement,  or  a  grantor's 
lien  for  purchase  price,  and  the  like:      Baker  v.  Bliss,  39  N.  Y.  70. 

2.  Inquiry  from  the  (Wonlor  or  Vendor. — A  purchaser  wlio  has  been  put 
on  an  inquiry  should  seek  information  from  his  grantor  or  vendor,  and  a 
failure  to  do  so  \\ould  generally  show  a  lack  of  the  due  care  and  diligence  in 
7iiaking    the    inquiry. 

3.  Inquirii  from  Third  Persons. — I'nder  many  circumstances,  an  examina- 
tion of  the  records  and  a  (;-.i5s'.:oning  of  the  vendor  would  not  be  sufficient,  unless 


2^il  COXCKKXIXG    XOTICE.  §  (iUl 

prosecute  one  with  due  diligence  to  tlie  end,  the  presnniption  re- 
mains operative,  and  the  conclusion  of  a  notice  is  absolute.  The 
criterion  thus  laid  down  will  serve  to  determine  the  prima  facie 
nature  of  the  presum^jtion  in  a  very  large  number  of  the  instances 
which  are  properly  referable  to  the  class  of  ''constructive  notice." 

§608.  When  Conclusive.— It  should  be  added,  for  the  purpose 
of  concluding'  this  general  description,  that  the  doctrine  determining; 
what  constitutes  a  constructive  notice  under  such  circumstances 
may  be  formulated,  in  somewhat  different  terms,  as  follows:  When- 
ever a  party  has  information  or  knowledge  of  certain  extraneous 
facts,  which  of  themselves  do  not  amount  to,  nor  tend  to  show. 
an  actual  notice,  but  which  are  sufficient  to  put  a  reasonably  prudent 
man  upon  an  inquiry  respecting  a  conflicting  interest,  claim,  or 
right,  and  tlie  circumstances  are  such  that  the  inquiry,  if  made  and 
followed  up  with  reasonable  care  and  diligence,  ivould  lead  to  a  discover// 
of  the  truth,  to  a  knowledge  of  the  interest,  claim,  or  right  which 
really  exists,  then  the  party  is  absolutely  charged  with  a  con- 
structive notice  of  such  interest,  claim,  or  right.  The  presumption 
of  knowledge  is  then  conclusive.  There  is  plainly  nothing  contra- 
dictory between  this  statement  and  the  criterion  laid  down  in  th'e 
preceding  paragraph ;  both  are  phases  of  the  same  doctrine.  Since 
the  facts  are  assumed  to  be  such  that  an  inquiry  properly  con- 
ducted would  result  in  arriving  at  the  truth,  it  would  be  impossible 
for  the  party  to  show  by  any  evidence  that  he  had  duly  prosecuted 
the  inquiry,  and  had  nevertheless  failed  to  acquire  the  knowledge. 
If  the  facts  of  a  particular  case  bring  it  within  this  description, 
the  legal  presumption  becomes  conclusive,  and  the  constructive 
notice   is  absolute   in   its   efi'ecls.^ 

§  609.     Species  of  Constructive  Notice. — 

§  610.  1.  By  Extraneous  Facts,  Generally  Acts  of  Fraud,  Negli- 
gence, or  Mistake. — The  criterion  in  all  instances  of  this  species  is, 

the  inquiry  were  fiirthcr  iiroseculed  among  tliird  persons  from  whom  informa- 
tion could  probably  be  obtained  ;■  a  neglect  to  make  such  an  inqiury  would  not 
overcome  the  presumption.  Thus  an  omission  to  seek  information  from  a 
thii'd  person  who  was  in  possesion,  or  from  a  third  person  who  was  said  or 
claimed  to  liold  some  lien  or  encumlirance  tliereon,  would  generally  be  a  failure 
to   prosecute  the   inquiry  with   due   diligence. 

'it  is  in  pursuance  of  this  general  proposition  that  the  constructive  notice 
from  recitals  contained  in  a  deed  forming  a  necessary  link  in  a  party's  chain 
of  title,  and  that  chargeable  upon  a  principle  when  given  to  an  agent,  and  that 
derived  from  a  lis  pendens  and  from  registration,  are  absolute  in  their  effects, 
the  legal  presumptions  being  C(mchisive.  In  support  of  the  general  rule  as 
given  in  the  text,  see  the  following  cases,  among  others:  Lang  Syne  Gold 
Min.  Co.  v.  Moss,  20  Nev.  127,  19  Am.  St.  Rep.  .337.  18  Pac  3.58;  Attorney- 
General  V.  Abbott,   154  Mass.  .323,  28  N.   E.  340,   13   L.   R.   A.  2.51. 


§  GIU  EQUITY     JUiUSPKUDEXCE.  2T"-; 

that  the  party  had  knowledge  or  iiiforniation  of  certain  matters 
in  pais,  which,  although  not  directly  tending  to  show  the  existence 
of  a  prior  conflicting  right,  are  sufficient  to  put  him,  as  a  prudent 
man,  upon  an  inquiry;  and  he  is  charged  with  constructive  notice 
of  all  that  he  might  have  learned  by  an  inquiry  prosecuted  with 
reasonable  diligence ;  a  legal  presumption  arises  that  he  has  obtained 
information  of  what  he  might  thus  have  learned.  In  every  such 
case  the  first  question  is,  whether  the  facts  of  which  the  party 
has  information  are  sufficient  to  put  him  upon  an  inquiry,  so  as  to 
laise  the  prima  facie  presumption;  the  further  question  is  then 
presented,  whether  he  has  made  a  due  inquiry  without  discovering 
the  truth,  so  as  to  overcome  the  presumption  and  defeat  the 
notice,  or  whether  he  has  so  neglected  this  duty  that  the  presumption 
renuiins  unshaken  and  the  notice  effective.  A  third  question  might 
be  suggested,  whether  he  had  made  an  inquiry  and  had  ascertained 
the  whole  truth  concerning  the  prior  conflicting  right,  so  that  tlie 
constructive  notice  would  in  reality  be  turned  into  actual  knowledge 
or  actual  notice.  I  would  remark  that  in  many  of  the  decisions 
involving  this  species  of  notice  it  will  be  seen  upon  a  careful  exam- 
ination that  the  point  actually  determined  by  the  court  Avas,  not 
whether  the  party  had  made  a  due  and  reasonable  inquiry,  but 
whether  the  facts  were  sufficient  to  put  him  upon  any  inquiry,  so  that 
his  failure  to  inquire  would  be  a  fatal  neglect.  It  is  plain  from 
the  discussions  of  the  preceding  paragraphs  that  in  all  instances 
belonging  to  this  species  the  legal  presumption  upon  which  con- 
structive notice  always  rests  is  only  prima  facie,  and  may  be  over- 
come by  evidence  clearly  showing  that  the  inquiry  was  duly  prose- 
cuted without  success.  Before  describing  the  particular  eases 
falling  under  this  head,  it  is  proper  to  mention  the  difficulty,  Avhich 
may  sometimes  exist,  of  distinguishing  this  kind  of  constructive  no- 
tice from  those  instances  of  actual  notice  which  are  established 
merely  by  circumstantial  evidence.  In  fact,  there  are  decisions 
which  make  no  attempt  to  distinguish  them;  the  terms  "construct- 
ive notice"  and  "actual  notice"  have  been  applied  indiscriminately 
to  the  same  condition  of  circumstances.  The  distinction,  however, 
exists,  and  is  fundamental.  Whatever  may  be  the  language  of  judicial 
dicta,  it  is  settled  beyond  a  doubt  that  in  one  case  the  actual  no- 
tice is  argumentatively  inferred  as  a  conclusion  of  fact,  by  the  jury 
or  other  tribunal,  from  circumstances  which  put  the  party  upon 
an  inquiry;  and  in  the  other  case  the  constructive  notice  is  in- 
ferred by  the  court  as  a  presumption  or  conclusion  of  law  from  the 
same  kind  of  circumstances,  in  the  absence  of  contrary  evidence.^ 

'Cases   beloiigino:  to   this   first   spocie=;   of   conptrnotive   noticp   are   much    more 
cominon  in   Knyiand  tliaii   in  tlie  United  Stales;   indeed,  a  very  large  proportion 


373  COXCERNIXG     NOTICE.  §  613 

I  shall  now  mention  the  most  important  instances  which  properly 
belong  to  this  branch  of  constrnctive  notice. 

§  611.  Visible  Objects  and  Structures. — If  a  purchaser  sees  or  has 
knowledge  of,  or  by  the  ordinary  use  of  his  senses  might  see  or 
know  of,  visible  material  objects  or  structures  upon  or  connected 
with  the  land  or  other  subject-matter  concerning  whicli  he  is  dealing, 
he  ma}',  and  generally  will,  be  charged  with  a  constructive  notice 
of  any  easement  or  other  sinular  right  the  existence  of  which  would 
be  reasonably  suggested  to  him  by  the  appearance  of  such  material 
object.  He  is  put  upon  an  inquiry,  and  is  presumed  to  have  ascer- 
tained whatever  he  might  have  learned  by  prosecuting  the  inquiry 
in  a  due  and  reasonable  manner.^ 

§  612.  Absence  of  Title  Deeds. — The  case  belonging  to  this  head 
which  most  frequently  occurs  in  England  is  that  arising  from  the 
absence  of  the  title  deeds,  or  their  non-production  by  the  owner 
of  land  with  whom  an  intended  purchaser  or  encumbrancer  is  deal- 
ing. From  the  peculiar  system  of  conveyancing  and  land  titles  pre- 
vailing in  England,  the  owner  of  a  legal  estate  in  fee  or  for  life 
is  entitled  and  is  presumed  to  have  the  title  deeds  and  other  numi- 
ments  of  title  constituting  the  written  evidence  of  his  estate  in  his 
own  possession  or  under  his  personal  and  immediate  control.  The 
inability  to  produce  the  title  deeds,  and  especially  their  possession 
by  a  stranger,  would  indicate  that  some  equitable  or  perhaps  legal 
interest,  mortgage,  or  lien  had  been  created  and  was  outstanding.^ 


sj  613.  Other  Matters  in  Pais. — As  might  be  supposed  from  our 
wholly  different  system  of  conveyancing  and  titles,  instances  of  con- 
structive notice   by  the   absence   or  non-production    of  title   deeds 

of  the  English  decisions  conccrnino'  constrnctive  notice  nuist  he  referred  1o  tlii> 
[lead.  The  reason  is  obvions.  In  EngUmd,  the  absence  of  any  general  system 
of  recording  renders  it  possible  for  titles  to  be  affected  in  a  vast  nnmbcr  of 
modes  by  matters  in  pais,  by  matters  resting  in  the  knowledge  of  particular 
individnals,  and  which  can  only  be  ascertained  by  a  special  inquiry.  Tlie 
universal  system  of  recording  in  this  country  largely  diminishes  the  possibility 
of  titles  being  thus  affected  by  extraneous  matters. 

'Davies  v.  Sear,  L.  R.  7  Eq.  427:  Morland  v.  Cook.  L.  R.  0  Eq.  2,52;  Raritan 
etc.  Co.  V.  Veghte,  21   N.  J.  Eq.  40.3.     See,  also,  ante.  §  GOO. 

'  In  fact,  the  possession,  by  the  apparent  owner  of  the  legal  estate,  of  all 
the  title  deeds  is  quite  analogous  to.  though  not  of  course  exactly  identical 
with,  a  perfect  record  title  in  the  T'^nited  States.  A  purchaser  dealing  with 
the  legal  owner  in  England,  and  finding  him  in  possession  of  all  the  title  deeds, 
is  in  a  position  quite  similar  to  that  of  a  purchaser  in  this  country  who  has 
made  a  search  and  finds  the  owner's  title  on  the  records  clear  and  unencumbered. 
\\  hile  in  neither  case  is  such  purchaser  (thsoliifrhi  secure  against,  unknown  out- 
standing claims,  in  both  he  stands  in  a  like  position  of  advantage  and  pro- 
tection. 

18 


§  615  EQUITY     JLKISl'KUDEXCE.  274 

seldom,  if  ever,  arise  in  this  country.  The  same  general  rule,  how- 
ever, is  applied  by  our  courts  in  all  analogous  eases.  If  a  purchaser 
or  encumbrancer,  dealing  concerning  property  of  which  the  record 
title  appears  to  be  complete  and  perfect,  has  information  of  ex- 
traneous facts  or  matters  in  pais,  sufficient  to  put  him  on  inquiry 
respecting  some  unrecorded  conveyance,  mortgage,  or  encumbrance, 
or  respecting  some  outstanding  interest,  claim,  or  right  which  is  not 
the  subject  of  record,  and  he  omits  to  make  a  proper  inquiry,  he  M'ill 
be  charged  with  ('on,structive  notice  of  all  the  facts  which  he  might 
have  learned  by  uicans  of  a  due  and  reasouable  inquiry.^ 

§  614.  2.  By  Possession  or  Tenancy. — The  general  rule  is  well  set- 
tled in  England  that  a  purchaser  or  encumbrancer  of  an  estate 
who  knows  or  is  properly  informed  that  it  is  in  the  possession  of  a 
person  other  than  the  vendor  or  mortgagor  with  whom  he  is  dealing- 
is  thereby  charged  with  a  constructive  notice  of  all  the  interests, 
rights,  and  equities  which  such  possessor  may  have  in  the  land. 
He  is  put  upon  an  inquiry  concerning  the  grounds  and  reasons 
of  the  stranger's  occupation,  and  is  presumed  to  have  knowledge 
of  all  that  he  might  have  learned  by  means  of  an  inquiry  duly  and 
reasonably  prosecuted.  If  he  neglects  to  make  any  inquiry,  or  to 
make  it  with  due  diligence,  the  presumption  and  notice,  of  course, 
remain  absolute.^  The  same  general  rule,  based  upon  the  same 
motives  and  reasons,  has  been  established  in  the  United  States  by  a 
very  great  nimiber  of  decisions  and  judicial  dicta.-  In  b}^  far  the 
larger  portion  of  English  cases,  the  possession  has  been  that  of  a 
tenant  or  lessee,  while  in  this  country  the  instances  of  notice  by 
mere  tenanc}^  are  comparatively  few.  I  shall  therefore  treat  the 
effect  of  tenancy  as  a  particular  application  of  the  more  general 
doctrine  concerning  notice  by  possession. 

§615.  General  Rules. — Two  leading  and  entirely  distinct  rules 
have  been  settled  in  the  Ignited  States  as  well  as  in  England,  and 
the  failure  to  recognize  this  fact  has,  as  it  seems  to  me,  sometimes 
produced  confusion  and  uncertainty  in  dealing  with  the  general 
subject.  In  the  first  place,  it  is  clearly  established  by  many  decisions 
of  the  highest  authority  that  an  actual,  open,  visible,  and  exclusive 
possession  of  a  definite  tract  of  land  by  one  rightfully  in  possession 
or  holding  under  a  valid  title  is  a  constructive  notice  to  subsequent 
purchasers  and  encumbrancers  of  whatever  estate  or  interest  in  the 

Mvirscli  V.  Tozier,  143  N.  Y.  390,  42  Am.  St.  Rep.  729,  38  N.  E.  sVo, 
H.  &   B.  77. 

'Taylor  v.  SlihlnTt.  2  Vos.  437.  440.  2  Keener  450:  Holmes  v.  Powell.  S  De  Oex, 
JVl.  &  G.  572. 

-Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  417.  12  Sup.  Ct.  230.  1 
Scott  549;  Woods  v.  Farmere,  7  Watts.  (Pa.)  382.  32  Am.  Dee.  772;  Chapman 
V.   Chapiiiiui.   91    Vix.   397,   21    S.   E.   813.   50   Am.   SI.   Pep.   84(5. 


^75  C'0-\CKUX1-NU     .NOTICE.       •  §  ()!•") 

laud  is  held  by  the  uceupaut,  equivalent  in  its  extent  and  effects 
to  the  notice  given  by  the  recording  or  registration  of  his  title 
The  constructive  notice  thus  described,  like  that  arising  from  a 
record  or  registration,  does  not  seem  to  require  nor  to  depend  upon 
any  actual  knowledge  or  information  of  the  possession  communi- 
cated to  or  had  by  the  subsequent  purchaser,  since  he  is  held  to 
be  charged  with  notice,  even  though  he  is  a  resident  of  another 
state/  This  rule  is  plainly  the  same  as  the  first  one  laid  down  by 
Lord  Justice  Knight  Bruce,  in  the  opinion  quoted  under  the  last 
preceding  paragraph.-  The  rationale  seems  to  be,  that  as  the 
occupant's  title  is  a  good  one,  and  as  his  possession  is  notorious 
and  exclusive,  a  purchaser  would  certainly  arrive  at  the  truth 
upon  making  any  due  inquiry.  The  purchaser  cannot  say,  and  can- 
not be  allowed  to  say,  that  he  made  a  proper  incjuiry,  anci  failed 
to  ascertain  the  truth.  The  notice,  therefore,  upon  the  same  motives 
of  expediency,  is  made  as  absolute  as  in  the  case  of  a  registration. 
The  second  of  the  two  rules  is  undoubtedly  the  one  which  is  sus- 
tained by  the  greatest  number  of  decisions.  It  must  not  be  supposed, 
however,  that  there  is  any  conflict  between  them,  nor  that  the  same 
court  might  not,  under  proper  circumstances,  adopt  both.  Whenever 
a  ]>arty,  dealing  as  purchaser  or  encumbrancer  with  respect  to  a 
parcel  of  land,  is  informed  or  knows,  or  is  in  a  condition  which 
prevents  him  from  denying  that  he  knows,  that  the  premises 
are  in  the  possession  of  a  third  person,  other  than  the  one  with 
Avhom  he  is  dealing  as  OAvner,  he  is  thereby  put  upon  an  inquiry, 
and  is  charged  with  constructive  notice  of  all  the  facts  concerning 
the  occupant's  right,  title,  and  interest  which  he  might  have  ascer- 
tained by  means  of  a  due  incpiiry.  A  legal  presumption  arises 
that  he  possesses  all  the  knowledge  which  he  could  have  acquii-ed 
by  such  an  inquiry."  It  follows,  as  a  necessary  consequence  of  tli-'se 
rules,  that  when  a  grantee  or  a  vendee  whose  deed  or  contract  is 
not  recorded  is  in  actual  possession  of  the  land  conveyed  or  agreed 
to  be  conveyed  to  him,  his  possession  is  constructive  notice  to  a 
subsequent  grantee  of  the  same  premises  whose  deed  is  put  upon 
record,  and  his  title  takes  precedence  of  such  subsequent  but  re- 
corded deed/ 

Mvirby  v.  lallmadge,  UiO  I'.  .S.  397,  10  Sup.  Ct.  34!) ;  Tate  v.  Pensaoola 
G.  J..  &  D.  Co.,  37  Fla.  439,  20  South.  542,  53  Am.  St.  Rep.  251;  Mullins  v. 
±5utte  Hardware  Co.,  25  Mont.  525,  65  Pac.  1004,  87  Am.  St.  Rep.  430;  Daniel 
V.  Jlester,  29  S.   ('.    147,  7   S.  E.   65. 

=  Holmes    v.    Powell,    S    De    Gex,    :\r.    &    G.    572,    580. 

■Bank  of  .Memlofino  v.  Baker.  82  Cal.  114,  22  Pac.  1037,  0  L.  R.  A.  833; 
Koror  Iron  C^o.  v.  Trout.  83  Va.  397,  419,  2  S.  E.  713,  5  Am.  St.  Rep.  285. 

Mlank  of  .Mendoeino  v.  Baker.  82  Cal.  114.  22  Pao.  1037.  6  L.  R.  A.  833: 
Phelan  v.    r>ra<lv.   110  X.   'S'.  587.  23   X.   Iv    1109    (rule  not  changed  bv  reason  of 


§  616  -EQl  ITY     JLIUSPRrDEXCE.  276 

§616.  Extent  and  Effect  of  the  Notice. — There  appears  to  be 
some  disagreement  among  the  American  decisions  concerning  the 
question  of  what  rights  and  interests  held  by  the  occupant  his 
possession  is  a  constructive  notice.  It  is  firmly  settled  in  England 
that  the  possession  of  a  tenant  or  lessee  is  not  only  notice  of  all 
rights  and  interests  connected  with  or  growing  out  of  the  tenancy 
itself  or  the  lease,  but  is  also  notice  of  all  interests  acquired  by  col- 
lateral and  even  subsequent  agreements.  If,  for  example,  a  tenant 
should  enter  under  his  lease  alone,  and  should  afterwards  make 
an  agreement  for  the  purchase  of  the  land,  his  possession  would  be 
notice  to  a  subsequent  purchaser  of  his  rights  as  vendee,  as  Avell 
as  those  belonging  to  him  as  lessee.^  It  would  seem  that  the  prin- 
ciple of  these  decisions  extended  to  all  persons  in  possession,  whether 
as  lessees,  vendees,  mortgagees,  or  otherwise.  It  has  accordingly 
been  adopted  and  followed  by  some  of  the  American  eases,  which, 
hold  that  a  possession  originally  acquired  by  one  right  or  in  one 
manner  is  notice  of  all  other  rights  subsequently  and  differently 
obtained  and  held  by  the  occupant,  unless  there  is  something  in  the 
circumstances  of  the  case  which  has  actually  misled  the  purchaser 
Avho  is  to  be  atfected  by  the  notice.-  Exactly  the  opposite  con- 
clusion has,  however,  been  reached  by  cases  which  hold  that  a 
possession  begun  under  one  kind  of  right  is  not  notice  of  any  other 
or  different  interest  subsequently  obtained  by  the  occupant,  unless 
there  was  something  special  in  the  circumstances  which  might  draw 

the  j>reat  inconvenienoe  to  wliicli  a  piirehaser  would  bo  put  in  making  inquiries 
of   all   persons    in    a   large  tenement   house). 

Mianiels  v.  Davison,  16  Ves.  249,  17  Ves.  43:]:  Taylor  v.  Stibbert,  2  Ves.  437, 
2  Keener  4.50. 

-  In  my  opinion,  these  decisions  are  much  more  in  harmony  with  the  general 
doctrine  than  those  others  -which  have  speculated  and  drawn  refined  distinc- 
tions upon  the  amount  of  notice  derived  from  the  occupant's  original  right  to 
the  possession.  The  reasons  upon  Avhich  the  -whole  doctrine  rests  seem  to  be 
conclusive.  The  possession  of  a  third  pevscni  is  said  to  put  a  purchaser  upon, 
an  inquiry;  and  he  is  charged  with  notice  of  all  that  he  might  have  learufKl 
by  a  due  and  reasonable  inquiry.  Clearly  a  purchaser  who  is  thus  put  ujion 
inquiry  is  bound  to  inquire  of  the  occupant  wiih  respect  to  every  ground,  source, 
and  right  of-  his  possession:  anything  short  of  this  would  clearly  fail  to  be  the 
"due  and  reasonable  inquiry":  See  Bright  v.  Buckman,  39  Fed.  243;  Phelan 
V.  Brady,  119  N.  Y.  587,  23  N.  E.  1109,  S  L.  V..  A.  211. 

It  has,  accordingly,  been  held  that  the  possession  of  the  entire  premises  by 
one  of  the  two  or  niore  co-tenants  is  suflicient  to  put  a  purchaser  from  ;;  co- 
tenant  out  of  possession  upon  inquiry  as  to  the  interests  claimed  by  the 
])Osscssor,  by  purchase  of  liis  co-tenant's  shares,  etc.:  Weisberger  v.  Wisner, 
.5;")  Mich.  246,  21  N.  W.  331.  Other  cases  hold  that  such  sole  occupancy  is  not 
notice,  since  it  could  be  referred  to  the  occupant's  former  title  as  tenant  in 
'ommon:  Jlullins  v.  Butte  Hardware  Co.,  25  Mont.  525,  65  Pac.  100-^,  87  Am. 
St.    Kep.    4.30. 


277  CONCKUNlxXG     .XOTICK.  §  (ilS 

the  purchaser's  attention  to  the  cliange  of  title,  and  thus  operate 
rather  as  an  actual  than  a  constructive  notice."  The  decisions  may 
be  regarded  as  agreeing-  upon  the  conclusion,  which  also  seems  to 
be  in  perfect  harmony  with  sound  principle,  that  where  a  title 
which  the  occupant  holds  has  been  put  on  record,  and  his  possession 
is  consistent  with  what  thus  appears  of  record,  it  shall  not  be  a 
constructive  notice  of  any  additional  or  ditt'erent  title  or  interest 
to  a  purchaser  who  has  relied  upon  the  record,  and  has  had  no  actual 
notice  beyond  what  is  thereby  disclosed.** 

§  617.  Grrantor  Remaining-  in  Possession. — The  last-mentioned 
rule  has  frequently  been  invoked  where  a  grantor,  having  executed 
a  deed  absolute  on  its  face>  which  is  put  upon  record,  remains  in 
j)Ossession  of  the  land  by  virtue  of  some  arrangement  or  relation 
between  himself  and  his  grantee  dehors  the  deed  and  the  record, 
which  entitles  him  to  the  possession,  such  as  a  collateral  ag;^eement 
which  really  turns  the  deed  into  a  mortgage,  a  lien  for  the  unj^aid 
purchase  price,  an  unrecorded  mortgage,  and  the  like.  .  .  . 
There  has  been  a  direct  confiiet  of  opinion  among  the  American  courts 
in  applying  the  rule  to  the  condition  of  facts  above  described.  In 
one  group  of  decisions  the  possession  of  the  grantor  is  held  not 
to  be  a  constructive  notice  of  any  right  or  interest  he  may  have 
antagonistic  to  his  deed  which  has  been  put  upon  record ;  a  subse- 
quent purchaser,  it  is  said,  has  a  right  to  rely  upon  the  information 
derived,  or  which  would  be  derived,  from  the  record,  and  to  as- 
sume that  the  grantor's  continued  possession  is  merely  by  snffer- 
ance.'^  Another  group  reaches  a  conclusion  directly  the  contrary 
to  this,  and  holds  that  a  purchaser  is  put  upon  an  inquiry  and  is 
afif'ccted  by  a  constructive  notice  in  the  same  manner  as  in  any 
other  case  of  possession  by  a  third  person.- 

§  618.  Tenant's  Possession,  how  Far  Notice  of  Lessor's  Title. — 
"Whether  possession  by  a  tenant  is  constructive  notice  of  his  land- 
lord's title,  is  also  a  ({uestion  upon  which  the  decisions  are  in 
direct  conflict.     In  England  it  seems  to  be  settled  that  the  posses- 

=  Hodges  V.  Wiiiston.  94  Ala.  570,  ]0  South.  5.3.5:  :Mf:\toHi:iTi  v.  rJrimnir, 
3  Pick.  154,  15  Am.  Dec.  108:  PvPrl  Pxiver  Val.  L.  &  I.  Co.  v.  Smitli,  7  N.  T).  23Ct, 
74  K".  W.  194. 

*Kirbv  V.  'I'allmadge,  100  U.  S.  .379.  10  Sup.  Ct.  ,349:  ]Mullins  v.  Butte 
Hardware  Co..  25  Mont.  5-25,  05  Pae.  1004.  S7  Aiu.  St.  Rep.  4.30;  Woods  v. 
I'ariiipie,  7  Watts  382,  383,  32  Am.  Dec.  772. 

'Truman  v.  Bell.  ,54  Ark.  273.  15  S.  W.  880.  20  Am.  St.  Rep.  35;  Bloomer 
V.  Henderson.  8  Mich.  395.  404,  405,  77  Am.  Dec.  453:  Exon  v.  Danehe,  24  Or. 
110,    32    Pae.    1045. 

-'Illinois  Cent.  R.  R.  v.  MeCullousrh,  ,59  111.  160:  Grofl"  v.  State  Bank.  50  Minn 
234,  .52  ^.  W.  051.  30  Am.  St.  Rep.  640;  Dennis  v.  Northern  Pae.  R,  Co.,  20 
Wash.  320,  55  Pae.  210. 


^  (;-^0  EQLITY     JUKlSPHUDK-XCi:.  <7$ 

sion  by  a  tenant,  or  notice  of  a  tenancy,  will  not  affect  a  pur- 
chaser with  constructive  notice  of  the  hindlord's  title/  The  same 
view  has  been  adopted  by  several  American  decisions.*  In  the 
greater  number  of  American  cases,  however,  it  is  held  that  a  pur- 
chaser is  bound  to  make  inquiry  from  the  tenant  in  possession  with 
respect  to  all  the  rights  and  interests  which  he  claims  to  have,  and 
urjder  which  he  occupies,  and  is  presumed  to  know  all  the  facts 
which  he  might  have  learned  by  such  an  inquiry;  he  must  pursue 
l;is  inquiry  to  the  final  source  of  the  tenant's  right,  and  is  thus 
affected  with  a  constructive  notice  of  the  landlord's  title  and 
estate." 

^  619.  Nature  and  Time  of  the  Possession, — Under  this  head,  the 
kind,  extent,  and  time  of  the  possession  necessary  or  sufficient  to 
constitute  a  constructive  notice  will  be  examined.  The  determina- 
tion of  .this  question  must  largely  depend  upon  the  circumstances 
or  conditions  of  fact  under  which  it  arises,  and  upon  the  immediate 
purpose  or  object  for  which  the  protection  by  a  notice  is  invoked, 
'i'hus  the  queston  may  arise  between  the  rightful  holder  of  a  prior 
unrecorded  title,  and  a  subsequent  purchaser  whose  conveyance 
is  recorded ;  and  it  may  therefore  come  within  the  first  rule  as 
stated  in  a  former  paragraph.^  where  the  possession  of  a  person 
rightfully  entitled  is  equivalent,  in  its  effects  as  notice,  to  a  regis- 
tration ;  or  it  may  arise  in  other  circumstances,  which  are  not  di- 
rectly affected  by  the  recording  acts,  and  which  are  governed  hy 
the  second  general  rule  concerning  the  eft'ect  of  possession  as  notice. 
A  failure  to  recognize  the  diff'erence  existing  between  these  two 
kinds  of  cases  will  undoubtedly  account  for  whatever  of  confusion 
and  conflict  of  opinion  luay  be  found  in  the  decisions  upon  this 
subject. 

§  620.  Actual,  Open,  Exclusive  Occupancy. — It  is  therefore 
abundantly  setiled  by  the  decisions,  that  where  the  first  general 
rule  as  stated  in  a  foregoing  paragraph  is  invoked,  and  the  party 
rightfully  in  possession  under  an  unrecorded  conve3-ance  relies 
ui)on  the  fact  of  such  possession  as  a  constructive  notice,  equivalent 
in  its  effects  to  a  registration,  to  a  subsequent  grantee  or  encum- 
brancer whose  deed  or  mortgage  has  been  recorded,  his  possession 
must  be  an  actual,  open,  distinct,  notorious,  and  exclusive  orcirpr.nnj 

Mones  V.  Smith.  1  Hare,  43.  63:  Hunt  v.  Luck  [1001]  1  Ch.  45,  [Ut02] 
1   Cli.  428. 

■'  FlajTg  V.  .Mann.  2  Sum.   480.  .'>.i7.   Fed.   ('a<.  No.  4.847. 

••^Tliomas  v.  Jiumett.  128  111.  37.  21  X.  K.  3.12.  4  L.  R.  A.  222.  H.  &  B.  '.'-O: 
A.  R.  Beck  Lumber  Co.  v.  Rupp.  ISS  111.  .-)(i2.  80  Am.  St.  Rep.  11>0.  ■"j!!  X.  E. 
429;  Edwards  v.  Thompson,  71  N.  C.  177,  179;  Randall  v.  Lingwall,  43  Or. 
383.  73   I'ac.   1. 

'Ante.  §  r.1,5. 


279  CONCERXIXG    NOTICE.  ^  1)24: 

of  the  land  in  question.  No  mere  occupation  of  the  premises  in 
common  or  in  connection  with  a  third  person,  and  no  mere  exercise 
of  acts  of  ownership  equivocal  in  their  nature  over  the  land,  will 
then  suffice.^ 

§  622.  Time  of  the  Possession. — In  order  that  any  kind  of  pos- 
sesion, whether  actual  and  visible,  or  simply  constructive,  or  con- 
sisting in  the  rightful  receipt  of  rents  and  profits,  may  put  a  pur- 
chaser upon  an  inquiry,  and  operate  as  a  constructive  notice,  it 
must  exist  at  the  time  of  the  transaction  by  which  his  rights  and 
interests  are  created.  A  possession  which  had  ended  before,  or 
which  did  not  commence  until  after,  the  sale  to  him  was  made,  or 
the  conveyance  or  encumbrance  was  executed,  could  not  affect  him 
with  any  constructive  notice.^ 

§  623.     The  Presumption  is  Rebuttable. — 

§  624.  Same  Continued. — There  is,  on  the  other  hand,  an  able 
and  Avell-eonsidered  series  of  decisions  in  which  the  nature  of  the 
legal  presumption  arising  from  possession  has  been  directly  aiui 
intentionally  examined.  In  all  these  cases,  where  the  court  has 
deliberately  met  the  question,  has  intentionally  investigated  the 
presumption  arising  from  possession,  and  has  definitely  passed  upon 
its  nature,  it  has  been  held  that  the  presumption,  under  ordinary 
circumstances,  or  independently  of  special  and  controlling  circum- 
stances, is  not  a  conclusive  one,  but  is  only  prima  facie,  and  may 
be  rebutted  and  overcome  by  proper  evidence  showing  that  the 
party  has  made  a  diligent  inquiry,  and  has  nevertheless  failed  to 
discover  the  real  truth  concerning  the  existence  of  an  adverse  right 
or  interest.  This  conclusion  may  be  considered  as  settled  by  the 
decided  weight  of  judicial  authority,  English  and  American.^  It 
is  also  in  complete  conformity  with  principle.  Undoubtedly,  in 
ordinary  cases,  where  a  third  person  is  possessed  under  a  claim 
of  right  or  title  which  is  actually  valid,  an  inquiry  prosecuted  with 
reasonable  diligence  from  parties  naturally  conversant  with  the 
facts  will  generally  result  in  a  discovery  of  the  truth,  and  the  pre- 
sumption thus  becomes  conclusive,  not  because  it  is  essentially  so, 
but  because  it  is  necessarily  confirmed  by  the  existing  facts, — no 
evidence  can  overturn  it.     A  different  condition  of  circumstances, 

'Holmes  v.  PoweH,  8  De  Gex,  M.  &  G.  572,  580;  Simmons  Creek  Coal  Co.  v. 
Doran,  142  U.  fS.  417,  12  Sup.  Ct.  2.39:  Holland  v.  Brown,  140  N.  Y.  344,  35 
i\.  E.  577;  Hodge  v.  Amerman,  40  X.  .J.  Eq.  90;  Rankin  v.  Coar,  46  X.  J.  Eq. 
5G6,  22  Atl.  177,  11  L.  R.  A.  601  (occupancy  not  exclusive)  ;  Kirby  v.  Tall- 
madge,   160   U.   S.  379,   16  Sup.   Ct.  349. 

'  Meehan  v.  Williams,  48  I'a.  St.  238;  Cliapman  v.  Chapman.  91  Va.  397, 
21  S.  E.  813,  .50  Am.  St.  Rep.  846. 

'  Seheerer  v.  Cuddy,  85  Cal.  271,  34  Fac.  713:  Williamson  v.  Brown,  15  X.  Y. 
354,   :J60,   362,   H.    &    B.   86. 


§  G2tJ  i:(^nTY    JLKisi'KTDEXci;.  280 

however,  might  easily  exist,  and  often  does  exist.  The  purchaser 
put  upon  an  inquiry  might  exhaust  all  the  reasonable  modes  of  ae- 
(juiring  knowledge ;  he  might  receive  incorrect  information  from 
the  parties  acquainted  with  the  real  facts,  and  on  whom  he  had  a 
right  to  rely;  he  might  even  be  misled  by  the  person  in  possession; 
lie  might  act  in  the  most  perfect  good  faith, — and  come  to  the 
reasonable  conclusion  that  the  possession  was  not  based  upon  any 
adverse  claim,  and  was  wholly  subordinate  to  his  own  right  and 
lluit  of  his  immediate  grantor  or  mortgagor.  To  say  that  the  pre- 
sumption is,  under  such  circumstances,  conclusive,  and  the  con- 
structive notice  is  absolute,  would  be  to  violate  all  the  equitable 
reasons  upon  which  the  whole  doctrine  of  constructive  notice  is 
found  efl. 

^  626,  3.  By  Recital  or  Reference  in  Instruments  of  Title — 
General  Rule. — Wherever  a  purchaser  holds  under  a  conveyance, 
and  is  obliged  to  make  out  his  title  through  that  deed,  or  through 
a  series  of  prior  deeds,  the  general  rule  is  firmly  established  that 
ho  has  constructive  notice  of  every  matter  connecteci  with  or  affect- 
ing the  estate  which  appears,  either  by  description  of  parties,  by 
recital,  by  reference,  or  otherAvise,  on  the  face  of  any  deed  which 
forms  an  essential  link  in  the  chain  of  instruments  through  wb.ich 
be  must  derive  his  title.  The  reasons  for  this  doctrine  are  obvious 
and  most  convincing;  in  fact,  there  could  be  no  security  in  land 
ownership  unless  it  were  strictly  enforced.  The  right  of  such  a 
})urehaser  is,  under  our  system  of  conveyancing,  confined  to  the 
instruments  which  constitute  his  chain  of  title,  which  are  his  title 
deeds,  and  everything  appearing  in  those  instruments  and  forming 
a  legitimate  part  thereof  is  a  necessary  element  of  his  title.  The 
rationale  of  the  rule  is  equally  clear  and  certain.  Any  description, 
recital  of  fact,  reference  to  other  documents,  puts  the  purchaser 
upon  an  inquiry;  he  is  bound  to  follow  up  this  inquiry  step  by 
step,  from  one  discovery  to  another,  from  one  instrument  to  an- 
other, until  the  whole  series  of  title  deeds  is  exhausted,  and  a 
complete  knowledge  of  all  the  matters  referred  to  in  their  provi- 
sions and  affecting  the  estate  is  obtained.  Being  thus  put  upon  the 
inquiry,  he'  is  conclusively  presumed  to  have  prosecuted  it  until 
its  final  result,  and  with  ultimate  success.  The  purchaser's  ignor- 
at^.ce  that  a  particular  instrument  forming  a  link  in  his  chain  of 
title  was  in  existence,  and  his  consequent  failure  to  examine  it, 
would  not  in  the  slightest  affect  the  operation  of  the  rule.  An 
imperative  duty  is  laid  upon  him  to  ascertain  all  the  instruments 
which  constitute  essential  parts  of  his  title,  and  to  inform  himself 
of  all  that  they  contain.^ 

^Bisco  V.  Karl  of  P.anburv,  1  Ch.  Cas.  287;  Smith  v.  Burgess,  133  Mass.  513; 


'2S1  COXCKKXIXO     NOTICE.  §  ()v'8 

§  627.  Nature  of  the  Notice. — The  notice  which  thus  results  from 
recitals  and  other  matters  contained  in  title  deeds,  within  the 
operation  of  the  general  rule,  is  absolute  in  its  nature.  The  party 
having  been  put  upon  an  inquiry,  the  presumption  that  he  obtained 
a  knowledge  of  all  the  facts  which  could  be  ascertained  by  means 
of  a  diligent  inquiry  prosecuted  through  the  entire  chain  of  title 
deeds,  and  through  all  the  instruments  referred  to,  is  conclusive ; 
it  cannot  be  rebutted  by  any  evidence  of  a  failure  to  discover  the 
truth,  nor  even  by  proof  of  ignorance  that  instruments  affecting 
the  title  Avere  in  existence.  This  presumption  extends  to  unrecorded 
documents  as  well  as  to  those  which  have  been  duly  recorded.^ 

§  628.  Extent  of  the  Notice. — Where,  under  the  operation  of 
the  foregoing  general  rule,  a  purchaser  has  notice  of  a  title  deed, 
he  is  presumed  to  know  all  its  contents,  and  is  bound  thereby. 
As  an  illustration,  notice  of  a  lease  includes  in  its  efifects  a  con- 
structive notice  of  all  its  covenants.^  Furthermore,  the  necessity 
of  prosecuting  the  inquiry,  and  the  constructive  notice  arising  there- 
from, extend  to  every  instrument  forming  an  essential  link  in  the 
direct  chain  of  title  through  which  the  purchaser  holds;  that  is,  to 
tlie  ultimate  source  of  his  title,  and  to  every  succeeding  deed 
through  which  the  title  nuist  be  directlj^  traced,  and  which  is  neces- 
sary to  its  establishment.  The  purchaser  is  thus  charged  with 
notice  of  every  provision  in  each  separate  instrument  constituting 
the  entire  series  by  which  his  own  interest  can  be  affected,  or  from 
v;hich  others  have  derived  or  may  derive  any  rights.-  Not  only 
is  a  purchaser  thus  charged  with  a  constructive  notice  of  every- 
thing material  in  the  deeds  which  form  the  direct  chain  througli 
which  his  title  is  deduced,  but  if  any  of  these  convej-anees  should 
contain  a  recital  of  or  reference  to  another  deed  otherwise  col- 
lateral, and  not  a  part  of  the  direct  series,  he  would  by  means  of 
such  recital  or  reference  have  notice  of  this  collateral  instrument, 
of  all  its  contents,  and  of  all  the  facts  indicated  by  it  which  miglit 
be  ascertained  through  an  inquiry  prosecuted  with  reasonable  dili- 
gence.^   Finally,  the  notice  extends  to  all  deeds  and  other  instru- 

Deason  v.  Taylor,  53  Miss.  GOT,  701,  H.  &  B.  97;  National  Bk.  v.  Morris,  114 
Mo.  255,  21  S.  W.  511,  35  Am.  St.  Rep.  754,  19  L.  R.  A.  463;  Roll  v.  Rea,  50 
N.  J.  Law  264,  12  Ad.  905;  PriTitrl'"  v.  Dunn,  37  \Ms.  449,  404,  19  Am.  ]\r]). 
772.  H.  &  B.  92. 

^  Honore's  Ex'rs  v.  Bakewoll,  6  B.  Mon.  67,  43  Am.  Dec.  147;  Howard  Ins.  Co. 
V.  Halsey,  8  N.  Y.  271/59  Am'.  Dee.  478.  See  Roll  v.  Rea,  50  N.  J.  Law  264, 
12  Atl.  905. 

'Taylor  v.  Stibbert.  2  Ves.  437,  2  Keener  450:  Sweet  v.  Henry,  175  X.  Y. 
268.   67   N.   K.   574. 

'^  Howard  Ins.  Co.  v.  Halsey.  8  N.  Y.  271,  59  Am.  Dec.  478;  Brown  v.  Simons, 
44   N.    H.    175. 

^Hope  V.  Liddell,  21  Beav.  183:  Deason  v.  Taylor,  53  :Miss.  697.  H.  &  B.  97; 
Fonse  V.  (Jillillnn.  45  W.  Va.  213.  32  S.  K.  178,  185. 


§  Go2  EQUITY     JUiasriiLDENCK.  2S2 

iiients  properh'  fallini>-  within  the  two  preceding  rules,  whether 
thf}^  are  recorded  or  unrecorded.  In  other  words,  a  purchaser  is 
charged  with  notice  of  any  deed  forming  a  part  of  his  direct  chain 
of  title,  and  of  every  collateral  instrument  recited  or  referred  to, 
as  well  when  it  is  unrecorded  as  when  it  is  recorded.* 

^  630.  Particular  Instances. — The  constructive  notice  arises  not 
only  from  recitals,  references,  and  other  similar  statements  of  fact, 
but  also  from  the  character  and  description  of  the  parties  to  a 
deed  or  other  instrument  of  title.  A  purchaser  may  thus  be  charged 
with  notice  of  the  rights  held  by  third  persons,  from  the  fact  that 
they  are  joined  as  parties  to  a  conveyance,  or  from  the  character 
or  description  of  them  appearing  in  the  instrument,  as  married 
women,  trustees,  administrators,  executors,  and  the  like.^  The  im- 
mediate parties — grantor  and  grantee,  mortgagor  and  mortgagee — 
by  whom  and  to  whom  the  instrument  is  directly  executed  have, 
of  course,  a  notice  of  everything  which  it  contains.  The  notice  is 
then  really  an  actual  one,  rather  than  constn^ctive ;  for  the  imme- 
dihte  parties  are  assumed  to  have  read  their  own  conveyance,  and 
to  have  become  acquainted  with  all  of  its  eontents.- 

5;  631.  When  the  Notice  Arises. —  ...  A  recital,  reference, 
or  other  statement  in  a  title  deed,  in  order  to  operate  as  notice, 
must  be  so  definite  and  distinct  that  it  conveys  some  information 
to  the  party,  or  else  arouses  his  attention  by  directing  him  to  the 
source  of  information.  A  statement  may  be  so  vague  and  uncertain 
in  its  terms  that  it  will  not  put  a  purchaser  upon  an  inciuiry,  and 
will  not  therefore  affect  his  conscience  with  notice.^  Finally,  the 
notice  arising  from  title  deeds,  like  every  other  instance  or  kind  of 
constructive  notice,  does  not  operate  between  the  immediate  i)ar- 
ties  to  a  conveyance, — the  grantor  and  grantee,  mortgagor  and 
mortgagee, — but  only  between  a  purchaser,  grantee,  or  mortgagee 
and  some  prior  party  holding  or  claiming  to  hold  an  adverse  right, 
interest,  or  title. - 

§  632.  4.  By  Lis  Pendens — Rationale  of  the  Doctrine. — It  ha.s  been 
stated  in  numerous  judicial  opinions,  and  the  same  view  has  been 

U'rawfonl  v.  Cliicago.  etc.  E.  Co..  112  111.  :il4:  White  v.  Foster.  102  :\Iass. 
:!7.').  :!S0:  J>aker  v.  :Matlier,  2,5  Mic-h.  31. 

'  A  purchaser  l)y  a  deed  from  a  yraiitor  who  is  a  trustee,  whose  only  title 
is  that  of  a  trustee,  may  have  notice  of  the  trust,  and  will  eertainlj'  have 
such  notice  if  the  grantor  executes  the  deed  in  his  character  as  trustee:  Mar- 
bury  V.  Ehlen,  72  .Md.  200.  10  Atl.  64S,  20  Am.  St.  Rep.  467:  Mercantile  Nat. 
J!ank  v.  Parsons,  54  -Minn.  56,  55  N.  W.  825,  40  Am.  St.  Eep.  209. 
'   -McMurphy  v.  Adams,  G7  N.  H.  440,  30  Atl.  33.'i. 

M3ell  V.  Twilight,  22  N.  H.  500;  Durst  v.  Daugherty,  81  Tex.  G50,  17 
.S.  W.  388. 

^Champlin  v.   Laytbi.  0  Taige,   180,  203. 


28;>  COXCKHXIXG     NOTICE.  §  G3o 

repeated  b\'  text-writers,  that  the  rule  eoncernin<;'  tlie  effect  of  li.s 
pendens  is  wlioUy  referable  to  the  general  doctrine  of  constructive 
notice.  It  has  been  said  that  a  pending-  suit  in  eipiity  operates  as  a 
constructive  notice  to  the  world,  and  that  a  purchaser  pendente  lite 
is  bound  by  the  final  result  of  the  litigation,  because  he  is  charged 
with  such  a  notice  of  the  proceeding,  entirely  irrespective  of  any 
information  which  he  may  or  may  not  have  had.  Courts  of  the 
highest  ability  and  authority  have,  however,  adopted  a  somewhat 
different  theory.  According  to  this  view,  ''it  is  not  correct  to  speak 
of  lis  pendens  as  affecting  a  purchaser  through  the  doctrine  of 
rxtice,  though  undoubtedly  the  language  of  the  courts  often  so 
describes  its  operation.  It  affects  him,  not  because  it  amounts  to 
notice,  but  because  the  law  does  not  allow  litigant  parties  to  give 
to  others,  pending  the  litigation,  rights  to  the  property  in  dispute, 
so  as  to  prejudice  the  opposite  party.  Where  a  litigation  is  pend- 
ing between  a  plaintiff  and  a  defendant  as  to  the  right  to  a  parti- 
<:'nlar  estate,  the  necessities  of  mankind  require  that  the  decision 
of  the  court  in  the  suit  shall  be  binding,  not  only  on  the  litiuant 
parties,  but  also  on  those  who  derive  title  under  them  by  alienations 
made  pending  the  suit,  whether  such  alienees  had  or  had  not  notice 
of  the  pending  proceedings.  If  this  were  not  so,  there  could  be  no 
certainty  that  the  litigation  would  ever  come  to  an  end.  A  mort- 
gage or  sale  made  before  final  decree  to  a  person  who  had  no  notice 
of  the  pending  proceedings  would  always  render  a  new  suit  neces- 
sary, and  so  interminable  litigation  might  be  the  consequence."^ 
It  must  not  be  supposed  that  this  mode  of  explanation  affects  in 
the  slightest  degree  the  settled  rules  concerning  lis  pendens,  or 
alters  the  rights  and  liabilities  of  alienees  from  a  party  to  a  suit 
<lurin<>;  its  pendency;  it  may,  however,  prevent  the  extension  of  the 
rroetrine.  and  restrict  its  further  application  to  particular  i)ersons 
and  conditions  of  fact. 

§  633.  The  General  Rule.— If  we  accept  this  rationale  of  the 
doctrine  as  correct,  the  general  rule  may  be  accurately  formulated 
as  follows:  During  the  pendency  of  an  equitable  suit,  neither  party 
to  the  litigation  can  alienate  the  property  in  dispute,  so  as  to  affect 
the  rights  of  his  opponent.  This  brief  proposition  in  reality  con- 
tains the  entire  doctrine.^  Adopting,  however,  the  ordinary  mode 
of  explanation,  which  regards  the  effect  of  lis  pendens  as  merely 
a  particular  instance  of  constructive  notice,  "the  general  and  es- 
tablished rule  is,"  using  the  language  carefully  chosen  by  Chancel- 

'Boilaniy  v.  Sabine,  1  Do  Gex  &  J.  5(56,  fuS,  584.  To  tlip  saine  effect,  most 
of  the  recent  cases:  Turner  v.  Houpt,  .53  N.  J.  Eq.  526,  33  Atl.  28,  3  Keener 
646;  Norris  v.  He,  152  III.  190,  199,  38  N.  E.  762,  43  Am.  St.  Rep.  233. 

•Turner  v.  Houpt,  53  N.  J.  Eq.  52G,  33  Atl.  28,  3  Keener  046. 


§  (j33  equity     JUItlSPKUDEXCE.  284 

lor  Kent  in  a  leading  case,  "that  a  lis  pendens — a  pending  suit  in 
ecaiity — duly  prosecuted,  and  not  collusive,  is  notice  to  a  purchaser 
of  the  property  in  dispute  from  a  party  to  the  litigation,  so  as  to 
ati'ect  and  bind  his  interest  by  the  decree ;  and  the  lis  pendens  be- 
gins from  the  service  of  the  subpoena  after  the  bill  is  filed."-  Wher- 
ever, therefore,  an  equitable  suit  affecting  the  title  to  a  particular 
estate  as  its  subject-matter  has  been  begun  by  service  of  process, 
and  is  prosecuted  in  good  faith,  whether  we  say  that  the  lis  pendens 
is  constructive  notice  to  all  the  world,  or  regard  the  doctrine  as 
necessarily  resting  upon  a  basis  of  expediency,  the  result  is  the 
same;  an  alienee  of  the  subject-matter  from  either  party  during 
the  pendency  of  the  suit  takes  it  subject  to  the  rights  of  the  other 
party  involved  in  the  controversy,  and  is  bound  by  the  decree  or 
judgment  finally  rendered.  In  the  great  majority  of  ordinary  liti- 
gations the  rule  has  naturally  been  applied  to  an  alienee  of  the 
defendant ;  but  it  is  also  extended,  wherever  the  nature  and  object 
of  the  suit  require,  to  one  who  derives  title  from  the  plaintiff.^ 
The  same  priiu  iph  embraces  actions  at  law,  as  well  as  suits  in 
equity;  but  from  the  essential  nature  of  legal  titles,  it  need  not 
ordinarily  be  invoked  at  law.  In  all  actions  at  law  to  which  the 
doctrine  could  apply, — as,  for  example,  in  actions  of  ejectment, — 
if  the  plaintiff  recovers  a  judgment  against  the  defendant,  he  has 
also  a  perfect  title  against  any  alienee  of  the  defendant,  since  he 
must  necessarily  recover  upon  the  strength  of  his  own  legal  title; 
in  other  words,  the  defendant  can  never  give  to  an  assignee  or 
alienee  a  better  title  against  the  plaintiff  than  that  which  he  himself 
holds.*  It  is  otherwise  in  many  equitable  suits.  "Where  the  plain- 
tiff in  eciuity  has  only  an  equitable  title  or  right  to  the  property 
in  dispute,  it  might  be  possible  for  the  defendant  to  transfer  the 
sul)ject-matter  to  a  bona  fide  purchaser,  and  thus  to  clothe  m^^-.. 
ti-ansferee  with  a  title  overriding  the  equity  of  the  plaintiff.  The 
doctrine  of  constructive  notice  by  lis  jiendens  is  therefore  an  es- 
sential incident  of  many,  equitable  suits,  in  order  to  prevent  a 
failure  of  justice.  It  naturally  came  to  be  regarded  as  peculiar 
to  proceedings  in  courts  of  eciuity,  although  the  same  princiiile 
Avould  operate,  if  necessary,  at  law.  This  analysis  and  description, 
it  should  be  observed,  are  entirely  independent  of  any  statutory 
modifications  which  have  been  made  in  some  of  the  states  and  in 
England. 

■^  Alien  V.  Foolo,  r)4  Miss.  328,  3.33;  Stout  v.  Pliillippi  Mfg.  Co.,  4i  W.  Va.  339, 
;■)()  Am.  !St.  Kep.  853,  and  note;  ^lurray  v.  Bailoii,  1  Jolms.  Cli.  oOfi,  1  Scott 
520  (Chan.  Kent)  ;  :\Iiu'ray  v.  Lylburn,  2  Jolins.  Cli.  441,  1  Scott  52G  (Chan, 
lient)  ;   Warren  County  v.  Marcy,  07  U.  S.  9G,  1  Scott  529. 

•'  See  post,  «5  638. 

'  Sheridan   v.  Andrews,  49   N.   Y.  478. 


285  COXCKKXIXG    NOTICii:.  §  ()3 1 

§  634.  Requisites  of  the  Lis  Pendens. — Having  thus  exphiiued 
the  general  rule  and  the  reasons  upon  which  it  rests,  I  shall  very 
briefly  state  those  incidents  of  the  pending  suit  which  must  exist 
in  order  that  the  rule  may  operate  and  its  effects  may  be  produced 
upon  an  alienee.  The  lis  pendens  and  the  consecpient  notice,  to  use 
the  language  ordinarily  employed,  only  begin  from  the  sei'vice  of  a 
subpoena  or  other  process  after  the  filing  of  the  bill,  so  that  the 
court  may  have  acquired  jurisdiction  of  the  defendant.'  The  effect 
of  the  suit  as  notice  continues  through  the  entire  time  of  its  pen- 
dency, and  ends  when  the  suit  is  realh'  ended  by  a  final  judgment." 
In  order,  however,  that  a  purchaser  pendente  lite  may  be  thus 
affected,  the  suit  must  be  prosecuted  in  good  faith,  with  all  rea- 
sonable diligence,  and  without  unnecessary  delay.  A  neglect  to 
comply  with  this  recjuisite  would  relieve  a  purchaser  from  the 
effect  of  the  lis  pendens  as  notice.^  The  question  of  reasonable 
diligence  in  prosecuting  the  suit  must,  however,  depend  upon  the 
circumstances  of  each  case.  Thus  the  abatement  of  the  suit  by 
the  death  of  a  party  will  not  destroy  its  effect  as  lis  pendens,  pro- 
vided it  is  revived  without  unnecessary  delay.*  Even  a  judgment 
in  favor  of  the  defendant  does  not  necessarily  at  once  terminate 
the  lis  pendens.  If  the  unsuccessful  party  is  entitled  to  appeal, 
the  constructive  notice  continues  during  a  reasonable  time  for  an 
appeal  to  be  tak-en.^  The  effect  of  lis  pendens  upon  the  rights  of  an 
alienee  depends  not  only  upon  this  element  of  time,  but  also  upon 
the  averments  of  the  pleadings.  Proper  and  specific  allegations 
ar?  a  necessary  requisite.  Lis  pendens  is  notice  of  everything 
averred  in  the  pleadings  pertinent  to  the  issue  or  to  the  relief 
sought,  and  of  the  contents  of  exhibits  filed  and  proved. *^'  In  order 
that  the  notice  may  thus  operate,  the  specific  property  to  which  the 
suit  relates  must  be  pointed  out  in  the  pleadings  in  such  a  manner 
as  to  call  the  attention  of  all  persons  to  the  very  thing,  and  warn 
them  not  to  intermeddle.  It  is  not  necessary  that  the  land  should 
be  described  by  metes  and  bounds;  certainty  to  a  common  intent — 

'Norris  v.  Ilf,  1.52  111.  190,  100,  43  Am.  8t.  Rep.  233,  38  X.  E.  762:  Allen  v. 
Foole,  54  Miss,  323,  333;  Murray  v.  Ballon,  1  Johns.  C'h.  ,566,  576,  1  Scott  520. 

-  Wliittield  V.  Ixiddle,  78  Ala.  90.  As  to  etfect  of  termination  of  suit  by- 
abandonment  or  dismissal,  see  Xortliam  v.  Boyd,  66  Tex.  401,  1  S.  \V.   109. 

•'Murray  v.  Ballou,  1  Johns.  Ch.  566,  1  Scott  520:  Tinsley  v.  Rice,  105  (,'a. 
285,  31   S.  E.   174;  Taylor  v.  Carroll,  89  Md.  32,  42  Atl.  920,  44  L.  R.  A.  479. 

*  Watson  V.  Wilson.  2  Dana  406,  26  Am.  Dec.   459. 

^Olson  V.  EiebpUe.  110  Iowa,  594,  81  N.  W.  801,  80  Am.  St.  Rep.  327;  Dehell 
V.   Foxwc.rtliy,   9   B.   Mon.   228. 

«Norris  v.  lie,  152  111.  190.  204,  38  N.  E.  762,  43  Am.  SI.  Rep.  2.33:  Allen  v. 
Poole,  54  .Miss.  323,  333;  Stout  v.  Philippi  Mfg.  etc.  Co.,  41  W.  Va.  339,  56  Am. 
St.  Ren.  843,  23  ,S.  E.  571. 


i>  (i;;(;  equity    jukispi;udi:xce.  286 

reasonable  certainty — is  sufficient.  The  specific  subject-matter 
should  be  so  described  and  identified  that  no  one,  upon  readinu' 
the  allegations,  could  have  a  reasonable  doubt  as  to  what  was  in- 
tended. The  averments  of  the  bill  "must  be  so  definite  that  any 
one  on  reading  it  can  learn  what  property  was  intended  to  be  made 
the  subject  of  litigation."^  The  notice  arising  from  a  pending  suit 
does  not  affect  property  not  embraced  within  the  descriptions  of 
the  pleading;  nor  does  its  operation  extend  beyond  the  prayer  for 
relief.^ 

§  635.  To  What  Kinds  of  Suits  the  Rule  Extends— Suits  Con- 
cerning Land. — It  may  be  stated  as  a  general  proposition  that  the 
doctrine  of  notice  by  lis  pendens  extends  to  all  equitable  suits  Avhich 
involve  the  title  to  a  specific  tract  of  land,  or  which  are  brought 
to  establish  any  equitable  estate,  interest,  or  right  in  an  identihed 
parcel  of  land,  or  to  enforce  any  lien,  charge,  or  encumbrance  upon 
land.  Among  the  most  familiar  instances  in  which  the  rule  applies 
are  suits  to  foreclose  mortgages,  to  enforce  vendor's  liens,  to  estab- 
lish trusts,  and  the  like.^ 

;<  636.  Suits  concerning  Personal  Property. — While  the  doctrine, 
in  general,  applies  to  all  equitable  suits  in  which  the  subject-matter 
is  land,  or  any  e.state  or  interest  therein,  the  proposition  is  equally 
true  and  general  that  it  does  not  extend  to  ordinary  suits  cont  ern- 
ing  personal  property,  goods  and  chattels,  securities  or  money.  The 
reason  for  this  restriction  is  obvious;  there  is  no  necessity  for  in- 
voking the  rule  in  such  litigations,  under  all  ordinary  circum- 
stances. The  decisions  have,  however,  admitted  an  exception  to 
this  general  proposition  in  one  class  of  suits.  Actions  brought  to 
enforce  a  trust  extending  over  personal  property,  goods,  and  se- 
curities not  negotiable  in  their  nature  are  held  to  be  within  the 
operation  of  the  rule.  A  purchaser  of  such  trust  property  from  the 
trustee,  during  the  pendency  of  the  action,  is  charged  with  con- 
structive notice,  and  his  purchase  is  invalid  as  against  the  plaint itl' 
whose  rights  are  established  by  the  final  decree.^     It  is  well  settled 

^Xorris  v.  lie,  152  111.  190,  202,  43  Am.  St.  Rep.  233,  38  X.  E.  762;  .Jones  v. 
.McNarrin,  68  Me.  334,  28  Am.  Rep.  66;  Allen  v.  Poole,  54  Miss.  323.  333. 

Mbid.  As  to  the  effect  of  amending  the  hill,  see  Norris  v.  lie,  152  111.  190, 
43  Am.  St.  Rep.  233,  38  N.  E.  762;  Turner  v.  Houpt,  53  N.  J.  Eq.  520,  33  All.  28, 
3   Keener   646. 

'Allen  V.  Poole,  54  Miss.  323,  333;  Norris  v.  He,  152  111.  190,  43  Am.  St.  Rep. 
233,  38  JSJ.  E.  762  (foreclosure  of  mortga.ae).  As  to  actions  for  divorce  and 
alimony,  see  Houston  v.  Tinimernian,  17  Oreg.  499,  11  Am.  St.  Rep.  848,  H.  &  B. 
98.  See,  also,  Green  v.  Rick,  121  Pa.  St.  130,  6  Am.  St.  Rep.  760,  15  All.  497, 
2  L.  R.  A.    (wlien  doctrine  not  applicable). 

'Murray  v.  Lylburn,  2  .Johns.  Ch.  441,  1  Scott  526;  Diamond  v.  Lawrence 
('ounty  Bank,  37  Pa.  St.  353,  78  Am.  Dec.  429;  Bergman  v.  Bergman,  43  Oreg. 
456,  72  Pac.  1086,  73  Pac.  341,  99  Am.  St.  Rep.  771. 


28?  COXCEUXING    XOTICE.  §  (i:38 

that  the  doctrine  of  constnietive  notice  from  lis  jHMideiis  docs  not 
embrace  suits  concerning  negotiable  instruments  or  moneys,  so  as  to 
affect  the  title  of  a  transferee  for  value  and  in  good  faith  durinu" 
the  pendency  of  the  action,  even  when  the  transfer  was  made  in 
direct  violation  of  an  injunction,  so  that  the  indorser  or  assignor 
M'ould  be  punishable  for  the  c-oiitempt.- 

§  637.  What  Persons  are  Affected  by  the  Notice. — Assuniinu- 
that  all  the  foregoing  requisites  exist,  the  constructive  notice  by 
the  pendency  of  the  suit  extends  only  to  those  who  derive  tit]»' 
from  a  paiii/  or  privy  pendente  lite.  A  purchaser  of  the  very  land 
described  in  the  pleadings  from  one  who  is  not  a  part}*  to  the  suit. 
or  a  priv}^  to  such  party,  is  never  chargeable  with  the  constructive 
notice.^  If.  however,  a  person  has  acquired  a  prior  right  to  the 
specific  land,  the  commencement  of  a  suit  affecting  the  same  land 
will  not  invalidate  any  act  which  he  may  subsequently  do  in  pur- 
suance of  such  antecedent  right,  or  for  the  purpose  of  carryinii-  it 
into  effect.- 

§  638.  To  a  Purchaser  from  Either  Litigant  Party. — The  ques- 
tion yet  remains  whether  the  rule  of  constructive  notice  applies 
to  a  purchaser  pendente  lite  from  either  party  to  the  litigation. 
The  principle  upon  which  the  doctrine  is  based,  and  all  the  reasons 
of  policy  by  which  it  is  supported,  clearly  extend  alike  to  both  the 
litigants.  In  the  great  majority  of  instances,  it  has  undoubtedly 
been  a  purchaser  from  the  defendant  who  has  been  charged  with 
the  constructive  notice.  The  plaintiff,  however,  is  equally  prevent- 
ed from  alienating  the  subject-matter  of  the  controversy,  to  the 
prejudice  of  the  defendant,  wherever,  from  the  nature  of  the  suit, 
he  might  have  in  the  result,  by  the  final  decree,  a  right  established 
as  against  the  plaintiff.^  Finally,  is  a  purchaser  from  one  defendant 
pendente  lite  affected  by  the  right  of  another  defendant  in  the 
same  suit?  This  special  question  has,  upon  careful  consideration, 
been  answered  in  the  negative.  It  has  been  held  that  where  a  person 
without  actual  notice  of  a  suit  purchases  from  one  of  the  defendants 

-.Murray  v.  Lvlburn,  2  .lolms.  C!i.  441,  1  Scott  526;  Warren  County  v. 
Alarcy,  97   U.  S.  !)G,  1  Scott  529. 

'Noyes  v,  Crawford,  118  Iowa,  15,  90  Am.  St.  Rep.  .363,  91  X.  W.  799: 
Merrill  v.  Wri^lit  (Neb.),  91  N.  W.  697;  Brtmdage  v.  Biggs,  25  Ohio  St.  652.  656. 

=  That  the  holder  of  an  unrecorded  deed  or  mortgage  who  does  not  record 
it  until  after  the  lis  pendens  in  a  suit  against  his  grantor  or  mortgagor,  is 
not  a  purchaser  pendente  lite,  see  J>amont  v.  Cheshire,  65  N.  Y.  30,  37,  3S ; 
Haughwort  v.  Murphy.  22  N.  J.  Eq.  531,  Sh.  198.  Contra,  that  he  is,  in  effect, 
a  pendente  lite  purchaser,  see  Smith  v.  Worster,  59  Kan.  640,  54  Pac.  676, 
68  Am.  St.  Rep.  385.  The  question  depends  largely  upon  the  wording  of  tlie 
lis  pendens  and  recording  statutes. 

'Bellamy  v.  Sahine.  1  De  Gex  &  J.  566,  580;  Henderson  v.  Wanamaker,  79 
Fed.  736,  25  C.  C.  A.  181. 


^  040  EQUITY     JUJilSPKUDEXCK.  wJSiS 

property  which  is  the  subject  of  it,  he  is  not,  in  consequence  of  the 
pendency  of  the  suit,  affected  by  an  equitable  title  of  another  de- 
fendant which  appears  on  the  face  of  the  proceedings,  but  of  which 
he  has  no  notice,  and  to  which  it  is  not  necessary  for  any  purpose  of 
the  suit  to  give  eft'ect.'-' 

§  639.  The  Statutory  Notice  of  Lis  Pendens. — The  general  rule 
concerning  constructive  notice  by  lis  pendens,  although  firmly  set- 
tled, has  always  been  regarded  by  the  courts  as  a  very  harsh  one 
HI  its  application  to  bona  fide  purchasers  for  value;  it  has  only 
been  tolerated  from  the  supposed  necessity.  It  has  not  been 
a  favorite  wnth  courts  of  equity,  and  has  never  been  enlarged 
in  its  operation  beyond  its  well-settled  limits.  These  considera- 
tions have  led  the  English  Parliament  and  the  legislatures  of  many 
states  to  interfere,  and  to  create  most  important  statutory  modi- 
fications and  restrictions.  It  should  be  observed  that  wherever  the 
terms  of  these  statutes,  and  the  alterations  made  by  them,  apply 
only  to  suits  concerning  real  estate, — which  is  true  in  much  of  the 
state  legislation, — the  rule  as  to  suits  concerning  personal  property 
remains  unchanged,  tlie  same  as  at  the  common  law.^ 

^  640.  Modern  Statutory  Provisions. — By  the  English  statute,  a 
I)eiiding  suit  will  not  affect  a  purchaser  for  value  and  without  ex- 
pj-ess  notice,  unless  a  notice  of  lis  pendens  has  been  properly  regist- 
ered in  compliance  \vith  the  statutory  directions.^  One  ciuite  gen- 
eral type  of  the  American  statutes  enacts  that  in  every  suit  relating 
to  or  affecting  real  estate  the  plaintiff  may  at  the  time  of  com- 
mencing the  action,  or  afterwards,  prior  to  final  judgment,  file  or 
procure  to  be  recorded  in  the  clerk's  or  recorder's  office  of  tlie 
county  in  which  the  land  is  situated  a  written  notice  descril)ing 
the  lands  affected  and  the  general  nature  of  the  action,  and  that 
no  suit  concerning  real  estate  shall  be  notice  to  a  purchaser  pen- 
dente lite  for  value  and  without  actual  notice  unless  and  until  such 
a  notice  of  lis  pendens  has  been  thus  filed  or  recorded.  The  terms 
of  these  statutes  apply  alike  to  legal  and  to  equitable  actions.  The 
second  type  of  these  statutes  differs  from  the  former  one  only  in 
the  provisions  being  more  general,  and  extending  to  all  suits  Mdiich 
could  possibly  furnish  an  occasion  for  the  operation  of  the  original 
doctrine.  The  constructive  notice  in  all  actions  to  which  the  equit- 
able rule  would  have  applied  is  made  to  depend  upon  the  filing  or 
recording  of  a  proper  notice.-    It  is  only  necessary  to  add  that  all 

=  Bellamy  v.  Sabine,  1  De  Gex  &  J.  566 ;  Goishaker  v.  Pancoast,  57  N.  J.  Eq. 
60,  40  At!.  '200. 

'  Leitoh  V.   Wells.  48  X.  Y.  585,  602. 

'Stats.  2  &  3  Vict.,  c.   11,  sec.  7. 

^  For  reference  to  these  statutes  and  the  decisions  thereunder,  see  Pom.  Eq. 
Jur.,  3d  ed..  S  640,  notes. 


289  C0^'CEKN1XG    XOTICE.  §  (!  l"2 

the  special  rules  collected  in  the  foregoing  paragraphs  concerning 
the  commencement  of  the  lis  pendens,  its  continuance  as  long  as 
the  suit  is  diligently  prosecuted,  its  termination  by  the  final  judg- 
ment which  ends  the  action,  the  sufficient  description  or  identifica- 
tion of  the  subject-matter  by  the  allegations  of  the  pleadings,  and 
the  persons  who  are  affected  by  the  constructive  notice,  are  still 
in  force,  and  apply  to  all  cases  which  come  within  the  operation 
of  the  statutory  provisions. 

§  641.  5.  By  Judgments. — By  the  original  doctrine  of  equity,  in- 
dependent of  all  statutory  changes,  it  was  settled  that  a  final  judg- 
ment or  decree  b}^  which  the  lis  j^endens  is  ended  and  the  contro- 
versy is  terminated  was  not  a  constructive  notice  to  persons  not 
parties  to  the  suit,^  except  to  a  purchaser  pendente  lite.-  It  should 
be  remembered  in  this  connection  that  a  decree  in  chancery  original- 
ly acted  only  upon  the  person  of  a  defendant,  and  did  not  create 
any  interest  or  title  in  or  lien  upon  the  property  affected  by  the 
suit.  While  this  original  rule  was  still  unmodified  by  statute,  a 
purchaser  of  the  property  affected  by  a  judgment,  even  though  it 
was  not  docketed,  would  be  bound  by  it.  provided  he  had,  prior 
to  the  purchase,  received  actual  notice  of  it."*  If  it  was  shoAvn  that 
a  subsequent  purchaser  had  made  a  search  for  judgments,  actual 
notice  of  an  existing  judgment  might  also  be  inferred  from  that 
fact.*  The  British  Parliament  has,  within  the  past  generation,  com- 
pletely changed  the  original  law  concerning  the  effect  of  judgments, 
and  has  adopted  another  policy  for  England  and  Ireland,  which  is 
carried  out  by  very  stringent  statutory  enactments.  .  .  . 

§  642.  American  Legislation. — A  statutory  policy  with  respect 
to  judgments  has  also  been  adopted  in  this  country,  which  is  sub- 
stantially the  same  throughout  all  the  states.  The  state  statutes 
have  generally  provided,  with  variations  in  the  detail,  a  mode  of 
docketing  judgments  at  law;  and  the  same  method  has  been  extend- 
ed in  many  states  to  equitable  decrees  and  judgments  for  the  re- 
covery of  money.  This  docketed  judgn.ent  or  decree  is  generally 
made  a  lien,  for  a  prescribed  period  of  time,  upon  all  lands  of  the 
judgment  debtor  situated  within  the  same  county,  and  a  construct- 
ive notice  to  all  subsequent  purchasers  and  encumbrancers  of  such 
lands.  Intended  purchasers  or  encumbrancers  are  therefore  obliged, 
for  their  own  protection,  to  make  a  search  of  the  official  records 
over  the  period  during  which  the  statutory  effect  is  given  to  the 

'  Worsley  v.  P'arl  of  Scarborou<ili.  3  Atk.  302. 

'The  notice  then  arose  from  the  lis  pendens,  and  not  by  virtue  of  any  par- 
ticular attribute  of  the  judo^ment  itself. 
'Davis   V.    ytrathmore,    16    Ves.    419. 

*  Proctor  V.  Cooper,  2  Drew.  1;   IS  Jur.  444;   1   Jur.  N.  S.   149. 
19 


§  646  EQUITY     JURISPRUDENCE.  2di) 

docketed  judgment.  In  many  of  the  states  provision  is  also  made 
by  the  statutes  for  the  registration  or  recording  of  equitable  de- 
crees, and  for  the  effect  of  such  recording  or  registration  upon 
those  persons  who  subsequently  acquired  interests  in  the  property 
covered  by  the  decree. 

,§  643.  In  giving  an  interpretation  to  these  statutes  concerning 
the  docketing  of  judgments  and  registration  of  decrees,  and  in 
determining  the  questions  which  have  arisen  therefrom  concerning 
the  constructive  notice  created  by  the  docket  or  record,  and  con- 
cerning any  notice  which  may  supply  the  want  of  a  proper  docket 
or  record,  rules  have  been  adopted  in  the  various  states  quite  anal- 
ogous to  those  established  by  the  courts  Avith  reference  to  the  re- 
cording or  registration  of  deeds,  mortgages,  and  other  instruments. 
The  statement  and  discussion  of  these  rules  and  of  the  questions 
connected  therewith,  so  far  as  they  fall  within  the  domain  of  equity, 
will  therefore  find  their  proper  place  under  the  next  following  sec- 
tion concerning  priorities.* 

§644.  6.  By  Registration  or  Recording  of  Instruments. — The 
subject  to  be  considered  under  this  subdivision  is  one  of  the 
highest  practical  importance,  both  at  law  and  in  eciuity,  throughout 
all  the  American  states.  While  the  decisions  of  the  English  courts 
growing  out  of  the  local  registration  statutes  of  that  country  are 
few,  and  of  little  assistance  to  the  American  lawyer,  those  arising 
under  our  own  statutory  system  are  exceedingly  numerous,  and 
often  involve  questions  of  great  magnitude  and  difficulty.  .  .  . 

i;  645.  (1)  The  Statutory  System  in  England.— No  general  sys- 
tem of  registration  has  ever  been  adopted  in  England.  For  certain 
special  reasons,  however,  local  statutes  were  passed  early  in  th(^ 
last  century  providing  for  a  registration  in  two  or  three  counties 
or  parts  of  counties.  Other  statutes  have  extended  the  method  of 
registration  into  Ireland.  The  provisions  of  the  different  English 
statutes  are  the  same.  They  enact,  in  substance,  that  a  "memorial" 
of  all  deeds  and  conveyances  affecting  lands  within  the  specified 
county  may  be  registered  in  a  prescribed  manner,  and  that  "every 
such  conveyance  shall  be  adjudged  fraudulent  and  void  against 
any  subsequent  purchaser  or  mortgagee  for  a  valuable  considera- 
tion," unless  a  memorial  thereof  shall  be  registered  before  the 
registering  of  a  memorial  of  the  conveyance  under  which  such  sub- 
sequent purchaser  or  mortgagee  shall  claim.     .     .     . 

§  646.     In  the  United  States. — While  there  is  some  variation   in 

'  See  ;jci.s^  §S  721-724.  See.  al<o,  on  the  subject  of  7iotice  by  doeketinir  jnufi:- 
ments,  inehulin^  the  effect  of  irres^fiilarities  in  docketing,  of  errors  or  omissions 
in  names,  and  of  omission  to  index  or  imperfect  indexins:,  monographic  nptc 
87  Am.  St.   Kep.  CCr^-CuS. 


•^yi  COXCERXIXG    NOTICE.  §  (i46 

the  detail  among  the  statutes  of  the  various  states,  the  central  con- 
ception and  essential  plan  of  the  system  are  substantially  the  same 
in  all.  Many  of  the  acts  provide  in  general  terms  for  the  record- 
ing- of  deeds  and  conveyances;  others  specifically  enumerate  the 
hinds  of  writings  which  may  be  registered,  including  deeds,  leases, 
mortgages,  assignments  of  mortgages  and  of  leases,  agreements 
for  the  purchase  and  sale  of  land,  and  in  fact  all  species  of  written 
instruments  by  which  any  estate,  interest,  or  encumbrance,  legal 
or  equitable,  in  or  upon  land,  is  created  or  transferred. ^  In  most 
of  the  states  this  language  authorizing  a  registration  is  permissive 
only,  but  in  a  few  of  them  it  is  virtually  mandatory.  Ever}^  such 
conveyance  or  other  instrument,  unless  recorded,  is  declared  to  be 
void  as  against  subsequent  purchasers  or  encumbrancers  in  good 
faith  for  a  valuable  consideration  whose  muniments  of  title  are 
first  put  on  record.  In  several  of  the  states  the  effect  of  a  notice 
of  a  prior  unregistered  instrument  is  expressly  recognized  by  the 
the  statute;  in  a  few  of  them  such  a  notice  is  required  to  be 
"actual;"  while  in  the  majority  the  legislation  is  silent  upon  the 
subject  of  notice  in  the  place  of  recording,  and  its  effect  is  thus 

^  I  have  arranged  the  statutes  into  classes,  according  to  these  types,  whicli 
are  determined  by  the  material  and  controlling  terms  found  in  each.  The 
statutes  of  each  class  are  substantially  alike,  witli  respect  to  these  main 
features,  although  their  language  may  vary  considerably.  In  almost  every  state 
it  is  enacted  that  hling  or  depositing  the  instrument  for  record  iji  the  propei- 
()ltice  has  the  same  effect  with  respect  to  notice,  priority,  etc.,  as  the  actual 
registi-ation  produces. 

First  Class. — No  period  is  specified  within  which  tlic  record  must  be  made. 
No  express  mention  is  made  of  notice,  actual  or  constructive,  in  place  of  a 
record.  The  material  provision  is,  in  substance,  that  every  conveyance  not 
duly  recoriled  shall  be  void  as  against  subsequent  purchasers  or  mortgagees 
in  good  faith  and  for  valuable  consideration  whose  conveyance  is  first  duly 
recorded.  In  several  of  these  states,  creditors  are  joined  with  subsequent  pur- 
cliasers.  In  some,  "conveyance"  includes  every  instnmient  affecting  land:  and 
assignments  of  mortgages  are  often  expressly  mentioned  in  statutes  belonging 
to  all  the  classes. 

Second  Class. — No  period  is  specified  within  which  a  record  must  be  nuide. 
It  is  provided  in  substance  that  conveyances  not  recorded  are  void  as  to  sub- 
sequent purchasers  and  encumbrancers  in  good  faith  without  notice  whose 
instruments  are  first  recorded.  In  some  states,  creditors  are  added  to  subseqiu^nt 
liurchasers. 

Third  Class. — The  peculiar  features  of  the  statutes  of  this  class,  are  that 
they  require  the  record  to  be  made  within  a  specified  period  after  execution  of 
the  instrument,  or  else  it  is  void  as  against  subsequent  purchasers  who  are 
irifhout  notice,  and  in  some  states  creditors  are  added.  Filing  for  record  is 
generally  made  equivalent  to  an  actual  recording. 

Fourth  Class. — The  statutes  of  this  class  resemble  those  of  the  last  one,  in 
requiring  the  record  to  be  made  within  a  ]uescribed  period  of  time  after  the 
execution:  but  tliey  make  no  mention  of  the  presence  or  absence  of  notice  in 
connection  with  tlic  suljsoqm'nt  purchasers,  etc.,  who  obtain  a  first  record. 


§  GoO  KQUITY     JURISPKUDEXCE.  293 

left  to  judicial  construction.  It  would  be  impossible  to  give  in  the 
text  any  more  exact  account  of  this  legislative  system,  but  I  have 
added  in  the  preceding  foot-note  an  abstract  of  the  statutes,  the 
states  being  arranged  in  classes,  according  to  the  varying  types  of 
their  legislation. 

§649.  (2)  The  American  Theory. — A  broader  and  more  effective 
interpretation  has  been  established  throughout  the  American  states 
by  an  overwhehning  weight  of  judicial  authority.  The  recording 
statutes  have  been  regarded  with  the  utmost  favor,  and  our  whole 
sj'stem  of  conveyancing  and  of  land  titles  has  been  based  upon 
them.  Indeed,  the  tendency  of  modern  legislation  has  been  to  en- 
lai'ge  their  scope  and  to  define  their  operation,  so  that  they  should, 
in  terms,  include  every  kind  of  instrument  by  which  the  ownership 
and  enjoyment  of  land  can  be  affected.  By  this  theory  the  object 
of  the  legislation  is,  that  the  proper  record  of  every  such  instru- 
ment should  be  absolute  notice  of  its  contents,  and  of  all  rights, 
titles,  or  interests,  legal  and  equitable,  created  by  or  embraced 
within  it,  to  every  person  subsequently  dealing  with  the  subject- 
matter  whose  duty  or  interest  is  to  make  a  search  of  the  records. 
The  intention  is,  to  compel  every  person  receiving  such  an  instru- 
ment to  place  it  upon  the  records,  in  order  that  he  may  thereby 
protect  his  own  rights  as  Avell  as  those  of  all  others  who  may  after- 
w^ards  acquire  an  interest  in  the  same  property.  It  was  designed 
that  the  public  records  should,  in  this  manner,  furnish  an  accurate 
and  complete  transcript  and  exhibition  of  all  estates,  titles,  inter- 
ests, claims,  encumbrances,  and  charges,  both  legal  and  equitable, 
in  and  upon  every,  parcel  of  land  which  had  come  into  private 
ownership  within  the  territorial  limits  over  which  the  particular 
record  extends ;  and  that  a  person  about  to  deal  with  respect  to 
any  parcel  of  land  should  be  able  to  discover,  or  find  the  means 
of  discovering,  every  existing  and  outstanding  estate,  title,  or  in- 
terest in  it  which  could  affect  the  rights  of  a  bona  fide  purchaser. 
Tliis  is  the  theory  of  the  legislation  as  established  by  judicial  inter- 
pretation; and  this  general  design  has,  as  far  as  possible,  been  car- 
ried into  effect  by  the  courts.  It  is  therefore  settled,  even  inde- 
pendently of  the  express  terms  of  many  state  statutes,  that  equit- 
able estates  and  interests,  as  well  as  legal,  are  embraced  Mnthin  the 
intent  and  operation  of  the  recording  acts,  and  that  any  instrument 
creating  or  conveying  such  an  interest,  Mdiich  is  duly  recorded, 
must  thereby  obtain  all  the  benefits  which  depend  upon  or  flow  from 
the    fact    of   registration    under   these   statutes.^ 

§  650.     (3)     Requisites  of  the  Record,  in  Order  that  it  may  be 

'U.   S.   Jns.   Co.  V.   Shriver,   ^   Md.   Cli.   381;    Parkist   v.   Alexander,    1   Johns, 
Ch.  394;   Wilder  v.  Brooks,  10  Minn.  .^)0,  S8  Am.  Dec.  49. 


;iy3  concj;hxjn(;    notick.  ^  (J53 

a  Constructive  Notice. — Since  tlie  constructive  notice  arising  from 
a  registration  is  unknown  to  tlie  connnon  law,  and  is  entirely  a 
creation  of  the  statute,  it  is  plain  that  the  provisions  of  the  stat- 
ute must  be  exactly  complied  with,  or  else  there  will  be  no  result- 
ing notice.  Certain  requisites  are  prescribed  by  the  legislation; 
they  are  essential;  without  them,  the  subject  of  the  proceeding 
would  wholly  fail.  I  purpose  to  state  and  explain  these  requisites 
as  they  have  been  inferred  from  the  statutory  provisions,  and  set- 
tled by  the  decisions.  They  relate  to  the  form,  execution,  and 
contents  of  the  instrument,  and  to  the  form  and  manner  of  the 
registration. 

§  651.  The  Form  and  Kind  of  Instrument. — The  record  operates 
as  a  constructive  notice  only  when  the  instrument  itself  is  one  of 
which  the  registration  is  required  or  authorized  by  the  statute.  The 
voluntary  recording,  therefore,  of  an  instrument,  when  not  author- 
ized by  the  statute,  would  be  a  mere  nullity,  and  would  not  charge 
subsequent  purchasers  with  any  notice  of  its  contents  or  of  any 
rights  arising  under  it.^ 

§  652.  Execution  of  the  Instrument. — The  record  does  not  oper- 
ate as  a  constructive  notice,  unless  the  instrument  is  duly  executed, 
and  properly  acknowdedged  or  proved,  so  as  to  entitle  it  to  be  re- 
corded. The  statutes  generally  require,  as  a  condition  to  registra- 
tion, that  the  instrument  should  be  legally  executed,  and  that  it 
should  be  formally  acknowledged  or  proved,  and  a  certificate 
thereof  annexed.  If  a  writing  should  be  placed  upon  the  records 
with  any  of  these  preliminaries  entirely  omitted  or  defectively 
performed,  such  a  record  would  be  a  mere  voluntary  act,  and  would 
have  no  effect  upon  the  rights  of  subsequent  purchasers  or  en- 
cumbrancers.^ 

§  653.  Form  and  Manner  of  the  Eecord. — Furthermore,  the  re- 
cord of  an  instrument  which  is  itself  duly  executed  and  entitled 
to  be  registered  does  not  operate  as  a  constructive  notice,  unless 
it  is  made  in  the  proper  form  and  manner,  in  the  proper  book,  as 
reijuired  by  the  statute.  The  policy  of  the  recording  acts  is,  that 
those  persons  who  are  affected  wdth  constructive  notice  should  be 
able  to  obtain  an  actual  notice,  and  even  full  knowledge,  by  means 
of  a  search.  A  search  could  not  ordinarily  be  successful  and  lead 
the  partj"  to  the  knowledge  which  he  seeks,  if  the  instrument  were 
recorded  in  a  wrong  book.     This  rule,  therefore,  instead  of  being 

»Burck  V.  Tnvlor,  ],52  U.  S.  034,  14  Sup.  Ct.  096;  Rpiehiian  v.  Klipst,  .36 
N.  J.  Eq.  202;  .lames  v.  ]\[orey,  2  Cow.  246,  14  Am.  Dec.  475  (assi,L,ninieiit  of 
mortgage) . 

n.ynch  V.  Miirpliy,  101  U.  S.  247,  10  Sup.  Ct.  523;  Carter  v.  Champion.  8 
(^onn.  548,  21  Am.  Dec.  095;  Priiigle  v.  Dunn,  37  Wis.  449,  460,  461,  19  Am, 
Hop.    772,   H.    &    Ji.    92. 


§  {i54  EQUITY     JLiasrilLDEXCE.  204 

arbitrary  and  teehnieal,  is  absolutely  essential  to  auy  effective 
working  of  the  statutory  system.^  For  the  same  reason  the  opera- 
lion  of  a  record  as  constructive  notice  is  limited  territorially.  A 
record  is  not  a  notice  with  respect  to  any  land  situated  in  a  differ- 
ent county  from  that  in  which  the  registration  is  made.  The  stat- 
utes uniformly  require  the  instrument  to  be  registered  in  the  same 
county  in  which  the  land  is  situated ;  a  record  in  a  different  county 
is  therefore  ino]»erative  as  a   constructive  notice.- 

§  654.  Contents  of  the  Record. — A  record  is  a  constructive  notice 
only  when  and  so  far  as  it  is  a  true  copy,  substantially  even  if  not 
absolutely  correct,  of  the  instrument  which  purports  to  be  register- 
ed, and  of  all  its  provisions.  Any  material  omission  or  alteration 
will  certainly  prevent  the  record  from  being  a  con.structive  notice 
of  the  urirjiiial  iihstntriirnt,  although  it  may  appear  on  the  registry 
books  to  be  an  instrument  perfect  and  operative  in  all  its  parts. 
The  test  is  a  plain  and  simple  one.  It  is,  whether  the  record,  if 
examined  and  read  by  the  party  dealing  with  the  premises,  would 
be  an  actual  notice  to  him  of  the  original  instrument  and  of  all  its 
parts  and  provisions.  By  the  policy  of  the  recording  acts,  such  a 
part}-  is  called  upon  to  search  the  records,  and  he  has  a  right  to 
rely  upon  what  he  finds  there  entered  as  a  true  and  complete  tran- 
script of  any  and  ^xevy  instrument  affecting  the  title  to  the  lands 
Avith  resjiect  to  which  he  is  dealing.  A  record  can  only  be  a  con- 
structive notice,  at  most,  of  whatever  is  contained  within  itself.^ 
Finally,  the  record  will  not  be  a  notice,  unless  it  and  the  original 

^Pringk'  v.  Dunn,  37  Wis.  449,  19  Am.  Rep.  772,  H.  &  B.  92;  Frost  v.  Beek- 
nian,  1  Jolins.  Ch.  288,  1  .Seott  531;  Ritchie  v.  Griffiths,  1  Wash.  429,  25  Pac.  341, 
22  Am.  St.  Rep.  155,  12  L.  R.  A.  384.  Tlie  statutes  in  many  of  the  states 
contain  provisions  to  tlie  etl'ect  that  tlie  recording  is  deemed  to  be  complete 
and  to  become  operative  from  the  moment  tlie  instrument  is  left  with  tlie 
proper  officer  for  record.  Jn  these  states  it  would  seem  to  follow,  and  has  re- 
peatedly been  decided  in  most  of  tliem,  that  no  subsequent  error  or  omission  (if 
the  officers  whose  duty  it  is  to  make  the  record,  will  destroy  the  effectiveness 
of  the  recording  as  constructive  notice.  The  person  filing  the  instniment,  it  is 
held,  discharges  his  full  duty  when  he  delivers  it  to  the  recording  oflicer  with 
directions  how  to  record  it :  ^Mangold  v.  Barlow,  61  Miss.  593,  48  Am.  Rep. 
84;  Farabee  v..  :\IeKerrihan,  172  Pa.  St.  234,  33  Atl.  583,  51  Am.  St.  Rep.  734. 
Contra,  see  Ritchie  v.  Griffiths,  supra.  After  the  recording  has  once  been  ac- 
complished, its  effectiveness  is  not  defeated  by  the  subsequent  careless  or 
accidental  loss  of  the  records,  as  by  fire:  Deming  v.  Miles,  35  Nebr.  739.  53 
N.  W.  fi()5,  37  Am.  vSt.  Rep.  464.  A  failure  to  index  the  instrument,  or  a 
mistake  in  indexing,  does  not  defeat  the  effect  of  the  record  as  notice:  Davis 
V.  \Miitaker.  114  N.  C.  279,  19  S.  PI  699,  41  Am.  St.  Rep.  793.  Contra,  in  a 
few  states,  Ritchie  v.  Griffiths,  supra. 

'King  V.  I'ortis,  77  N.  V.  25. 

interstate  B.  &  L.  Ass'n  v-  McCartha.  43  S.  C.  72.  20  S.  K.  807:  Jolmson  v. 
Hess,  126  Ind.  298,  25  N.  F.  445.  9  L.  R.  A.  471:  Frost  v.  Beekman,  1  Johns.  Ch. 
288,  1   Scott  531.     Compare  note  to  §  653, 


295  CONCKKMNCi     NOTICK.  §  (i.jG 

instrument  of  which  it  is  a  eopy  correetly  and  sufficiently  describe 
the  premises  which  are  to  be  aft'ected,  and  correctly  and  sufficiently 
state  all  the  other  provisions  which  arc  material  to  the  rights  and 
interests  of  subsequent  parties.  The  premises  should  at  least  be  so 
described  or  identified  that  a  subsequent  purchaser  or  encumbrancer 
would  have  the  means  of  ascertaining-  with  accuracy  what  and 
where  they  were."  The  same  rule  applies  to  the  record  of  mortgages 
and  all  other  encumbrances  which  can  be  recorded.  The  language, 
both  of  the  original  and  of  the  record,  must  be  such  that  if  a  sub- 
se(|uent  purchaser  or  encumbrancer  should  examine  the  instrument 
itself,  he  would  obtain  thereby  an  actual  notice  of  all  the  rights 
which  were  intended  to  be  created  or  conferred  by  it.' 

§655.  (4)  Of  What  the  Record  is  a  Notice.— The  doctrine 
formulated  under  this  head  is  merely  the  summing  up  and  result 
of  the  various  special  rules  which  have  been  stated  in  the  preceding 
paragraphs.  When  all  the  foregoing  requisites  to  a  valid  registra- 
tion have  been  complied  with, — when  an  instrument  is  one  entitled 
tc  be  recorded,  and  has  been  duly  executed  and  acknowledged  or 
proved,  and  has  been  recorded  in  the  proper  manner  and  in  the 
piroper  county, — then  such  record  becomes  a  constructive  notice 
not  only  of  the  fact  that  the  instrument  exists,  but  of  its  contents, 
and  of  all  the  estates,  rights,  titles,  and  interests,  legal  and  equit- 
able, created  or  conferred  by  it  or  arising  from  its  provisions.^  The 
infjuiry  therefore  remains.  To  what  classes  of  persons  does  this 
notice  extend? 

§  656.  (5)  To  Whom  the  Record  is  a  Notice. — What  classes  of 
jiersons  are  thus  charged  with  constructive  notice  by  a  regular  and 
lawful  registration?  The  answer  to  this  question  must  depend 
upon  the  language  of  the  recording  acts.  While  the  Terms  of  the 
various  state  statutes  may  differ,  in  respect  to  this  matter,  in  some 
of  their  subordinate  and  qualifying  phrases,  they  all  agree  in  the 
main  and  substantial  provision;  they  all  declare  that  an  unrecorded 
conveyance  is  invalid  only  as  against  subsequent  purchasers  or  en- 
cumbrancers, and,  as  a  necessary  inference,  that  the  recoi-d  oi^ly 
operates  as  a  notice  to  the  same  persons.^  In  several  of  the  statutes 
the  qualification  is  added  that  the  subsequent  purchaser  who  is  thus 
protected  nmst  be  one  "in  good  faith  and  for  a  valuable  considera- 

'  Davis  V.  Ward,  100  Cal.  ISO,  41  rao.  1010,  50  Am.  St.  Rep.  20;  T?ri,<jh(  v. 
Paieknian,  .30  Fpd.  247.  Compare  Vcroniysse  v.  Williams,  112  Fed.  200,  jIO 
C.  C.  A.  48fi. 

'.Johnson  V.  Hess,  120  Ind.  208,  2r,  X.  K.  44.-),  0  L.  11.  A.  471. 

Miancroft  v.  Consen,  1.3  Allen  30  (notice  that  jirantee  holds  in  trust)  ;  Kirscli 
V.  Tozier,  143  N.  Y.  300,  38  N.  E.  37.1,  42  Am.  St.  Rep.  720.  H.  &  B.  77  (record 
shows   breach    of  trust   has    been    committed). 

'  Hunter  v.   Watson,   12  Cal.   :5().3,   7.3    Am.   Dec.   543. 


§057  EQUITY     JUKISPKTDKXCE.  296 

tion;"  in  many  of  them  this  language  is  absent;  but  whether  ex- 
pressed or  omitted  by  the  legislature,  it  has  uniformly  entered  into 
and  formed  a  part  of  the  judieial  interpretation.  In  some  instances 
"creditors"  are  expressly  added. 

J;  657.  Not  to  Prior  Parties. — It  is  a  fundamental  proposition, 
therefore,  established  with  complete  unanimity,  that  a  registration 
properly  made  does  not  operate  as  constructive  notice  to  all  the 
world,  but  only  to  those  persons  Avho,  under  the  policy  of  the  legis- 
lation, are  compelled  to  search  the  records  in  order  to  protect  their 
own  interests.^  It  is  equally  well  settled  that  such  record  is  not 
notice  to  the  holders  of  antecedent  rights, — that  is,  to  those  who 
have  acquired  their  rights  before  the  time  when  the  record  is  made, 
— and  this  is  so  even  when  the  antecedent  right  may,  in  pursuance 
of  the  statute,  be  defeated  by  the  fact  of  the  prior  record.  In  other 
v.'ords,  the  registration  of  an  instrument  does  not  act  os  a  notice 
backwards  in  time.- 

'  8ee  Maul  v.  Rider,  59  Pa.  St.  167,  171.  This  language,  often  used  by 
the  courts,  is,  however,  a  vicious  reasoning  in  a  circle,  and  does  not  really 
determine  wlio  are  charged  with  notice,  it  simply  says:  "Those  persons  are 
atlected  with  notice  who  are  compelled  to  search  the  records  in  order  to  protect 
tiieir  own  interests;  and  on  the  other  hand,  those  jsersons  who  are  charged  with 
notice  must   make  a   search   of  the  records." 

-As  illustrations  of  the  proposition  stated  in  the  text,  see  Stuyvesant  v. 
Hall,  2  Karh.  Ch.  151;  Stuyvesant  v.  Hone,  1  Sand.  Ch.  419.  The  facts  were, 
briefly,  as  follows:  A  tract  of  land  was  mortgaged  to  Stuyvesant,  and  his 
mortgage  was  duly  recorded.  Hone  subsequently  acquired  a  lien  thereon  by 
a  second  mortgage,  whicli  he  foreclosed  by  a  suit  in  chancery,  and  the  land, 
which  had  been  divided  into  fifty-six  building  lots,  was  sold  under  the  decree 
to  'lliorne.  T.  afterwards  gave  a  mortgage  upon  part  of  these  lots  back  to  H. 
All  the  conveyances  and  mortgages  growing  out  of  these  proceedings  were  duly 
recorded,  but  S.  had  no  notice  of  the  foreclosure  suit  nor  of  any  of  the  pro- 
ceedings. Afterwards  H.  foreclosed  T.'s  mortgage  by  a  suit  in  chancery,  and 
tiled  Ihe  statutory  notice  of  lis  pendens.  During  the  pendency  of  the  suit,  S.,  who 
had  no  imtice  of  it,  released  to  T.  forty-two  of  the  fifty-six  lots  from  his  own 
(S."s)  mortgage.  The  fourteen  lots  left  subject  to  S.'s  mortgage  were  pail  of 
those  which  T.  had  mortgaged  to  H.,  and  all  of  T.'s  lots  not  mortgaged  to  H. 
were  released  by  S.  S.  now  brings  suit  to  foreclose  his  own  mortgage,  and  it  was 
claimed  in  defense  that  by  his  releasing  the  fortj^-two  lots  he  had  destroyed 
the  lien  of  his  mortgage  on  the  remaining  fourteen  lots.  The  court  held, — 
1.  That  S.  was  not  charged  with  constructive  notice  of  the  first  suit,  nor  of 
the  sale  under  the  decree  in  it;  2.  That  neither  the  second  suit,  nor  the  notice 
of  lis  pendens  filed  in  it,  operated  as  notice  to  S. ;  3.  That  the  recording  of 
the  subsequent  deeds  of  T.  and  of  T.'s  mortgages  was  not  notice  to  S. ;  and 
that  S.  on  releasing  was  not  bound  to  search  the  records  for  subsequent  con- 
veyances or  encumbrances.  The  vice-chancellor  said  on  the  question  (1  Sand. 
Ch.  419,  425)  :  "Notice  by  the  recording  of  conversances  is  created  by  the 
statutes,  and  its  etl'ect  is  to  be  learned  from  their  provisions,  and  the  adjudica- 
tions thereon.  The  statute  enacts  that  every  conveyance  not  recorded  shall  be 
void   as   against   any   subsequent   purchaser   in  good   faith,   etc.,   whose   convey- 


297  co.nci:i;m-N<.    .\(jrich.  ?  ti.38 

§  658.  Only  to  Purchasers  under  Same  Grantor.  Effect  of  Perfect 
Record  Title — Break  in  Record  Title. — It  i.s  uul,  liowever,  every  .sub- 
sequent purchaser  who  conies  within  the  purview  of  the  statute. 
The  mere  fact  that,  subsequently  to  the  registering  of  a  deed  of  cer- 
tain premises,  a  third  person  luirchaijes  the  same  premises,  from 
any  source  of  title,  from  any  grantor  whatsoever  claiming  to  own 
them,  does  not  render  the  purchaser  necessarily  chargeable  with 
notice  of  the  prior  recorded  conveyance.^  The  only  subsequent  piii- 
chaser  who  is  charged  with  notice  of  the  record  of  a  conveyance 
is  one  who  claims  under  the  same  grantor  from  the  same  source 
of  title.  If  two  titles  to  the  same  land  are  distinct  and  contiictiug. 
the  superiority  between  them  depends,  not  upon  their  being  recortl- 
ed.  but  upon  their  intrinsic  merits.  Il  is  settled  doctrine,  there- 
fore, that  a  record  is  only  a  constructive  notice  to  subsequent  pur- 
chasers deriving  title  from  the  same  grantor.-  Intimately  connected 
witli.  and  indeed  a  branch  of  this  same  doctrine,  is  the  question, 
How  far  back  is  a  purchaser  bound  to  search  the  record  title  of 
his  own  vendor?     If  the  records  show  a  good  title  vested  in  the 

ance  shall  be  first  recorded.  Xeitlier  the  provision  itself  nor  the  objects  of 
a  registry  law  have  any  reference  to  prior  encumbrances  alread}-^  recorded. 
The  etieet  of  recording  a  conveyance  is  not  retrospective,  nor  was  it  designed 
to  change  riglits  already  vested  and  secured  by  a  recorded  deed  or  mortgage. 
It  siii-plii  protects  a  purchase}'  tcho  tales  the  precnui'wn  to  search  the  records 
and  record  his  own  conveyance  against  prior  unrecorded  conveyances  of  irhirh 
he  had  no  nolicf.''  tSee,  also,  post,  §  122G,  and  Lynchburg  P.  B.  &  L.  Co.  v.  Fellers, 
OG  Va.  337,  31  tS.  E.  .50.5,  70  Am.  St.  Rep.  8.51.  The  record  of  a  .subsequent 
mortgage  by  the  mortgagor,  or  judgment  against  the  mortgagor,  is  not  notice 
to  the  mortgagee  senior  in  record:  Sarles  v.  McCiee,  1  X.  Dak.  365,  48  X.  W. 
2.'U.  26  Am.  !St.  Rep.  633.  As  to  mortgages  to  secure  future  advances,  see  post. 
S  lloy.  That  the  record  of  the  assignment  of  a  mortgage  is  not  generally  notice 
to  tlie  mortgagor,  see  post,  §  733. 

'Tliis  is  clearly  shown  by  the  uniform  mode  in  which  the  records  of  deetls, 
mortgages,  etc.,  are  indexed  in  the  public  cilices  of  record.  Tlie  indexes  are 
never  arranged  according  to  the  paieels  of  land,  so  that  a  person  making  search 
follows  the  ownership  of  a  particular  parcel  irrespective  of  the  sources  of  title; 
they  are  always  arranged  according  to  the  grantors  and  grantees,  mortgagors  and 
mortgagees.  Ihe  records  can  only  disclose  the  title  to  a  particular  tract,  so  far 
as  they  enable  one  making  search  to  trace  the  ownership  from  one  grantor  or 
mortgagor  to  another.  Records  are  only  constructive  notice  of  a  title  of  which 
they  enable  a  party  to  obtain  actual  notice  or  knowledge  by  means  of  a  .search. 

-Thus,  if  A  conveys  to  B,  and  the  deed  is  not  recorded,  and  B  then  conveys  the 
land  to  C,  who  puts  his  deed  upon  record,  the  registration  of  the  second  deed 
i.s  not  a  constructive  notice  to  one  who  subsequently  purchases  from  A.  Simi- 
larly, if  B  gives  a  mortgage  on  the  land,  even  a  purchase-money  mortgagf 
back  to  his  grantor  A,  and  this  mortgage  is  recorded,  a  subsequent  purchaser  from 
A  has  no  constructive  notice:  Losey  v.  Simpson,  11  X.  .7.  Eq.  246;  Carber  v. 
(iianella,  08  Cal.  527,  33  Pac.  458;  Scotch  Lumber  Co.  v.  Sage,  132  Ala.  508, 
00  Am.  St.  Rep.  932,  32  South.  607:  Doran  v.  Dazey,  5  X.  Dak.  167,  64  X.  W. 
1023,  57  Am.  St.  Rep.  550. 


§  U.jU  ECiUITY     JUKISPKUDEXCE.  298 

vendor  at  a  certain  date,  and  nothing  done  by  him  after  that  time 
to  impair  or  encumber  the  title,  it  would  seem  that  the  policy  of  the 
registry  acts  is  thereby  accomplished ;  the  purchaser  is  protected ; 
he  is  not  bound  to  inquire  farther  back,  and  to  ascertain  whether 
the  vendor  has  done  acts  which  may  impair  his  title  prior  to  the 
time  at  which  it  was  vested  in  him  as  indicated  by  the  records. 
This  view  is  supported  by  many  decisions, — it  seem.s  by  the  weight 
of  authority, — which  hold  that  a  purchaser  need  not  prosecute  a 
search  for  deeds  or  mortgages  made  by  his  own  vendor,  farther  baciv 
than  the  time  at  which  the  title  is  shown  by  the  records  to  have 
been  vested  in  such  a  vendor ;  or  in  other  words,  a  purchaser  is  not 
bound  by  the  registry  of  deeds  or  mortgages  from  his  vendor  made 
prior  to  that  time.''  The  record  title  is  so  far  a  protection  under  the 
statutes  to  purchasers  relying  upon  it,  that  if  an  instrument  appear- 
ing on  its  face  to  be  an  absolute  conveyance  is  recorded,  a  subse- 
(pient  purchaser  in  good  faith  and  for  a  valuable  consideration  from 
the  grantee  named  in  it  obtains  a  title  free  from  all  secret  trusts, 
and  from  all  outstanding  equities  not  appearing  on  the  record, 
which,  if  recorded  or  otherwise  disclosed,  might  have  shown  the 
instrument  to  be  in  reality  a  mortgage."* 

§  659.  (6)  Effect  of  Other  Kind  of  Notice,  in  the  Absence  of  a 
Registration. — i\lay  any  other  kind  of  notice,  actual  or  constructive, 
supply  the  want  of  a  registration?  In  other  words,  if  a  subseciuent 
purchaser  for  a  valuable  consideration  has  put  his  conveyance 
upon  record,  but  at  the  time  of  his  purchase  was  affected  with  no- 
tice that  there  was  a  prior  outstanding  but  imregistered  conveyance 
of  the  same  premises  from  the  same  grantor,  would  he  be  protected 
by  his  record  notwithstanding  the  notice?  or  would  the  notice  oper- 

^  in  I'^arniers'  Loan  Co.  v.  Maltbj',  8  Paige,  361,  a  vendee  in  a  contract  for 
tiie  purchase  of  land  whicli  was  unrecorded — the  mere  equitable  owner — irave 
a  mortgage  on  the  premises  fo  one  A,  wliich  was  immediately  put  on  record. 
This  vendee  afterwards  obtained  the  legal  title  by  a  deed  from  his  vendor,  wbicli 
deed  was  at  once  recorded;  he  tlien  conveyed  the  land  to  the  defendant.  V>, 
for  a  valuable  consideration,  and  this  second  deed  was  also  recorded.  The 
court  held  that  the  recording  of  the  mortgage  to  A,  being  prior  to  the  time 
when  the  title,  as  appeared  by  the  record,  was  vested  in  the  mortgagor,  did 
not  operate  as  constructive  notice  to  the  grantee.  B,  who  took  his  deed  after 
the  legal  title  was  vested  in  his  grantor.  Chancellor  Walworth  said,  in  sul)- 
stance,  that  as  the  mortgagor  had  not  the  legal  title  when  the  mortgage  to  A 
was  given,  but  only  a  contract  to  purchase  the  land  from  one  S.,  it  followed 
that  the  defendant,  B,  was  not  charged  Avith  constructive  notice  by  the  record  of 
such  mortgage.  In  taking  a  conveyance,  B  would  not  search  for  mortgages 
by  his  grantor  prior  to  the  date  of  his  deed  from  S. :  Ford  v.  Unity  Church 
.Society,  120  Mo.  498,  2.5  S.  W.  394.  41  Am.  St.  Rep.  711,  23  L.  R.  A.  5G1; 
Calder  v.  Chapman,  .52  Pa.   St.   .']5n.   !)1    Am.   Dec.   103. 

^Orvis  v.  Newell,  17  Conn.  97:  .laques  v.  Weeks,  7  Watts,  261,  271. 


299  COXCKl{.\lN(i    NOTICE.  >  <5Gl 

nte,  like  the  coiistnietive  iiDtice  arising-  from  a  registry,  to  postpone 
his  own  interest  to  that  conferred  by  the  prior  unregistered  instru- 
ment? This  question  was  presented  to  the  English  courts  of  chan- 
cery at  an  early  day,  and  was  settled  by  them  in  accordance  with 
the  general  principles  of  equity;  and  their  decisions  have  with  great 
uniformity  been  adopted  and  followed  by  the  American  courts. 
It  is  the  established  doctrine  that  a  notice  of  some  kind,  of  an  exist- 
ing, prior,  unrecorded  conveyance,  operates,  like  the  constructive 
notice  arising  from  a  registry,  to  postpone  a  subsequent  and  recorded 
instrument.  If  a  subsequent  purchaser,  even  for  a  valuable  consid- 
eration, had  received  notice  of  a  prior  unrecorded  instrument,  then 
he  cannot  acquire  or  retain  the  precedence  from  a  registi-ation  of  his 
own  conveyance;  his  conveyance,  though  recorded,  is  subordinate 
and  postponed  to  the  prior  unrecorded  one  of  which  he  had  received 
notice.^  This  conclusion,  reached  originally  by  the  court  of  chan- 
cery, has,  in  England,  furnished  a  rule  for  that  tribunal  alone,  and 
has  not  been  accepted  by  the  courts  of  law^;  in  this  country  it  is 
recognized  and  enforced  alike  by  the  courts  of  equity  and  of  law, 
for  the  reason  that  both  have  jurisdiction  in  matters  of  fraud. - 
The  doctrine  is,  in  fact,  a  mere  application  of  the  broader  general 
principle  that  the  person  who  purchases  an  estate,  although  for 
a  valuable  consideration,  after  notice  of  a  prior  equitable  right, 
makes  himself  a  mala  fide  purchaser,  and  will  be  held  a  trustee 
for  the  benefit  of  the  person  whose  right  he  sought  to  defeat. 

§  661.  (7)  What  Kind  of  Notice  is  Sufficient  to  Produce  this 
Effect. — The  doctrine,  being  thus  established  in  England  and 
throughout  this  country,  that  some  notice  of  a  prior  unregistered 
conveyance  may  supply  the  want  of  a  registration,  the  inquiry  finally 
remains,  What  species  or  amount  of  notice  will  avail  to  produce 
this  effect?  Or,  to  put  the  (juestion  in  its  most  practical  fonn, 
whether  an  actual  notice  is  requisite,  or  whether  a  comiruciive  notice 
may  also  be  sufficient.  It  is  plain,  if  the  theory  is  accepted  in  its 
full  and  literal  sense,  that  the  positive  frand  of  the  subse(|uent 
purchaser  in  endeavoring  to  obtain  a  precedence  by  reg- 
istering his  own  instrument  while  he  has  notice  of  the  prior  convey- 
ance is  the  sole  foundation  of  the  doctrine,  that  it  is  difficult 
to  escape  from  the  conclusion  that  the  notice  which  shall  thus 
render  his  conduct  fraudulent,  and  destroy  the  efficacy  of  his  regis- 
tration, must  be  an  actual  one.    It  is  not  in  accordance  with  general 

'Tin's  doctrine,  Avhich  is  nakedly  stated  in  the  text  Avitlunit  its  reasons,  was 
settled  by  Lord  Hardwieke  (A.  D.  1747),  in  the  celebrated  case  of  Le  Neve  v. 
Le  Neve,  Amb.  430;  2  Lead.  Cas.  Eq.  4th  Am.  ed..  109,  1  Scott  .'530:  Oreaves  v. 
Tofield,  L.  R.  14  Ch.  Div.  .503,  1  Scott  23,5. 

*lt  is  rejected,  however,  in  a  few  states,  notably  Ohio  and  North  Carolina. 


§  G(i5  EQUITY     JUUl&I'KLDEXCE.  300 

principles  to  pronounce  a  person  guilty  of  fraud  by  reason  of  knowl- 
edge constructively  imputed  to  him, — knowledge  which  he  may  in 
fact  never  have  acquired,  but  which  he  is,  from  considerations  of 
policy,  presumed  to  have  acquired,  treated  as  having  acquired. 

§  663.  American  Rules. — The  same  diversity  and  tiuctuation  of 
opinion  appear  among  the  decisions  made  by  the  courts  of  the 
various  states,  and  in  some  instances  between  the  earlier  and  later 
decisions  of  the  same  court.  In  one  class  of  cases,  an  actual  notice 
rendering  the  second  purchaser's  conduct  positively  fraudulent  is 
held  to  be  essential.  In  another  class,  no  distinction,  in  respect  to 
the  operation  of  notice,  is  recognized  between  the  subsequent  pur- 
chaser under  the  recording  acts  and  any  other  subsequent  purchaser; 
the  rights  of  both  are  treated  as  being  equally  affected  by  a  con- 
structive notice.  Two  causes  liave  operated  to  produce  this  con- 
fiict.  It  has  resulted  in  part  fnmi  the  different  terms  which  the 
legislatures  of  various  states  have  employed  in  the  most  important 
clauses  of  the  recording  acts  It  has  resulted  in  greater  part,  I 
think,  from  a  lack  of  unanimity  in  the  meanings  given  by  the  courts 
to  "actual"  and  to  "constructive"  notice  respectively;  from  a  con- 
fusion and  misconception  with  respect  to  the  essential  distinctions 
which  exist  between  the  two  species.  The  conflict  is  therefore  more 
apparent  than  real.^ 

§  665.  Rationale  of  Notice  in  Place  of  a  Record. — I  shall  conclude 
this  subject  by  an  attempt  to  ascertain  the  true  rationale  of  the 
rule  concerning  notice  as  a  substitute  for  an  actual  registration. 
If  the  fraud  of  the  second  purchaser  is  adopted  as  the  only  expla- 
nation, it  seems  impossible  to  hold  with  consistency  that  anything 
less  than  actual  notice,  or  even  actual  knowledge,  of  the  prior  eon- 
ve^-ance  acquired  by  him,  should  avail  in  place  of  the  record.  We 
have  seen,  hoAvever,  that  the  vast  majority  of  the  decisions,  even 
while  nominally  requiring  an  actual  notice,  do  not  demand  actual 
knowledge,  but  are  satisfied  with  a  notice  proved  b}'  indirect  evi- 

'  In  nearly  all  the  states  whose  statutes  in  terms  demand  an  "actual"  notice, 
the  courts  admit  the  operation  of  those  species  which  are  uniformly  regarded 
as  belon<;ing  to  the  genus  constructive,  viz.,  notice  arising  from  lis  pendens, 
recitals  in  title  papers,  between  principal  and  agent,  and  even  possession.  The 
courts  of  the  same  states  hold  that  the  "actual"  notice  of  the  statute  does 
not  mean  knowledge.  a)id  may  be  shown  by  any  kind  of  circumstances  which 
would  put  a  reasonable  man  upon  inquin*.  Practically,  it  seems  very  difficult 
to  distinguish  "actual"  notice  so  defined  from  constructive  notice.  The  courts 
of  a  few  states  have  interpreted  their  statutes  more  literally,  and  have  estab- 
lislied  a  more  stringent  rule  requiring  an  actual  notice  proved  by  direct  evidence. 
Of  this  class,  the  most  important  is  Massachusetts:  See  Toupin  v.  Peabody, 
1f)2  Mass.  473.  39  N.  E.  280:  Robertson  v.  Wheeler.  102  111.  56H,  44  X.  E.  870: 
Essex  Co.  i'.ank  v.  Harrison.  r->l  N.  J.  Eq.  <M,  40  Atl.  209:  .Smith  v.  Yule,  31  Caf. 
180.    SO    Am.    Dec.    I(i7. 


301  C'ONCEHNlNCi     NOTICE.  §  GG5 

denee  and  inferred  from  oircunistances.  Is  fraud,  then,  a  necessary 
or  even  proper  foundation  upon  which  to  base  the  rule  in  all  its 
applications?  I  submit  that  it  is  nut,  and  think  that  there  is  one 
other  rationale  Avhicli  fully  explains  the  doctrine  in  all  of  its  phases, 
and  which  produces  a  real  harmony  among  all  the  decisions.  It 
should  be  remembered — and  the  fact  is  very  important  in  its  bearnifi^ 
upon  this  discussion — that  the  English  statutes  do  not  speak  of  the 
registry  as  constituting  any  notice,  nor  has  the  rule  which  makes 
it  a  constructive  notice  ever  been  adopted  in  England.  The  stat- 
utory language  was  peremptory,  that  every  unregistered  con- 
veyance should  be  deemed  fraudulent  and  void  as  against  a  subse- 
(juent  purchaser  who  had  complied  Avith  the  statute.  The  English 
judges,  in  the  earliest  decisions,  w^ere  reciuired  to  find  some  reason 
or  excuse,  in  the  settled  principles  of  equity,  for  evading  and  disre- 
garding this  mandatory  language.  This  reason  and  excuse  they 
found  in  the  theory  of  fraud  imputed  to  the  second  purchaser  who 
attempted  to  gain  a  preference  b,v  registering,  although  he  had 
notice  of  the  prior  right.  But  in  the  very  case  of  Le  Neve  v.  Le 
Neve,^  where  Lord  Hardwicke  first  formulated  this  theory  of  im- 
puted fraud,  the  purchaser  was  charged  with  notice  simply  because 
his  agent  in  the  transaction  had  received  information  which  loas  not 
In  fart  communicated  to  the  principal.  The  purchaser's  conduct  was 
thus  pronounced  fraudulent,  although  he  had  personally  no  knowl- 
edge of  the  prior  conveyance,  and  had  acted  in  perfect  good  faith, 
and  the  notice  to  him  was  in  every  respect  constructive.  It  seems, 
therefore,  to  be  using  an  inconsistent  or  else  unmeaning  formula 
to  speak  of  fraud  as  the  essential  foundation  of  the  rule,  and  at 
the  same  time  to  hold  purchasers  chargeable  with  notice  of  a  prior 
right  when  they  had  not  received  the  slightest  information  of  its 
existence, — as,  for  example,  Avhen  they  have  been  affected  with 
notice  by  a  lis  pendens,  by  a  recital  in  a  title  deed,  which  [jerhaps 
they  never  saw  or  heard  of,  or  even  by  the  possession  of  a  stranger. 
Throughout  the  Ignited  States  the  doctrine  is  settled  that  the  regis- 
tration of  an  instrument  in  pursuance  of  the  recording  acts  operates 
as  a  constructive  2iotice  to  all  subsequent  purchasers.  Whatever  be 
the  language  of  any  state  statute,  this  result  of  a  registration — ■ 
that  it  should  be  a  constructive  notice — is  uniformly  regarded  as 
the  most  important  object  of  the  entire  legislation — the  final  pur- 
pose for  which  the  whole  system  of  recording  was  established.  By 
this  American  doctrine,  the  constructive  notice  given  by  a  registra- 
tion stands  on  exactly  the  same  footing,  produces  the  same  effects, 
and  is  of  the  same  nature  as  any  other  species  of  absolute  con- 
structive notice  recognized  by  etpiitj'", — as,  for  example,  that  arising 

^  Amh.  A?,(\.   1    Scoft   .'J30. 


§  666  EQUITY     JLin.SI'KlDEXCE.  o02 

from  a  lis  pendens  or  from  a  recital,  or  that  operating  upon  a  prin- 
cipal through  his  agent.  In  all  these  instances  the  notice  is  u 
conclusive  presumption  of  the  law,  and  it  is  immaterial  whether 
or  not  any  information  of  the  prior  right  was  actually  brought  home 
to  the  consciousness  of  the  party  aft'ected  thereby.  As,  therefore, 
the  one  important  and  necessary  effect  of  a  registration,  in  pur- 
suance of  the  American  statutes,  is  to  create  and  impose  upon  sub- 
sequent pu.rchasers  a  constructive  notice  of  a  recorded  instrument, 
it  seems  to  be  the  natural  and  inevitable  consequence  of  this  view 
that  any  other  species  of  notice,  either  constructive  or  actual,  should, 
in  the  absence  of  a  record,  produce  the  same  eff'ect  upon  the  rights 
of  a  subsequent  purchaser.  The  registration  of  an  instrument  is  a 
constructive  notice ;  and  this  result  was  the  main  design  of  the 
legislation.  It  is  therefore  natural,  just,  and  equitable  that  if  a 
subsequent  purchaser  has  received  any  other  kind  of  notice,  actual 
or  constructive,  the  same  eff'ect  upon  his  rights  should  be  produced 
as  would  have  followed  from  the  single  species  of  constructive  notice 
occasioned  by  the  statute.  In.  this  manner,  all  kinds  of  constructive 
notice  are,  with  respect  to  their  effects  upon  the  rights  of  subse- 
quent purchasers,  harmonized  and  placed  upon  the  same  footing.  In 
my  opinion,  this  view  furnishes  a  complete,  adequate,  and  true 
rationale  of  the  doctrine  under  discussion.  It  dispenses  with  the 
notion  of  fraud  as  a  necessary  element,  which  in  very  many  ad- 
mitted instances  of  notice  must  be  a  mere  figment  of  judicial  logic ; 
it  avoids  all  the  inconsistencies  which  are  incidents  of  that  notion; 
and  finally,  it  accords  with  the  intent  and  purpose  of  the  recording 
acts  as  recognized  by  the  vast  majority  of  American  decisions. 

§  666.  7.  That  Between  Principal  and  Agent — General  Rule. — 
The  general  rule  is  fully  established,  that  notice  to  an  agent  in  the 
business  or  employment  which  he  is  carrying  on  for  his  principal 
is  a  constructive  notice  to  the  principal  himself,  so  far  as  the  lat- 
ter's  rights  and  liabilities  are  involved  in  or  affected  by  the  trans- 
action. This  rule  alike  includes  and  applies  to  the  positive  informa- 
tion or  knowledge  obtained  or  possessed  by  the  agent  in  the  trans- 
action, and  to  actual  or  constructive  notice  communicated  to  him 
therein.^  The  rationale  of  the  rule  has  been  differently  stated  by 
different  judges;  by  some  it  has  been  rested  entirely  upon  the  pre- 
sumption of  an  actual  communication  between  the  agent  and  his 

'Le  Neve  v.  Le  Nevo,  Anib.  43G.  2  Lead.  Cas.  Eq.,  4th  Am.  ed..  109,  13.3; 
1  Scott  53;  Saffron,  etc.,  Soc.  v.  Pvayiier.  L.  P..  14  Ch.  Div.  406,  409,  per  James, 
L.  J,;  The  Distilled  Spirits,  11  Wall.  3.5^;  Fairfield  Sav.  Bank  v.  Chase,  72  Me. 
22G,  39  Am.  Pep.  319,  per  Peters,  C.  J.  (an  excellent  resume  of  the  subject)  ; 
Littauer  v.  Houck,  92  Mich.  162,  52  N.  W.  464,  31  Am.  St.  Rep.  572.  As  to 
tlie  a])plieation  of  the  rule  in  the  criminal  law,  see  State  v.  Kittelle,  110  N.  C. 
560,  28  Am.  St.  Pep.  698,  1.1  L.  P.  A.  694.  15  S.  E.  103. 


303  COXCKUMXc;   notice.  S  1)07 

principal;  hy  others,  upon  the  legal  conception  that  for  many  })ur- 
poses  the  agent  and  principal  are  regarded  as  one.-  Whatever  ex- 
planation be  adopted  as  the  true  one,  the  rule  itself  is  both  unques- 
tionable and  necessary;  the  ordinary  business  affairs  of  life  could 
not  be  safel}'  conducted  >vitliout  it. 

§  667.  Scop'e  and  Applications. — This  general  rule  is  of  wide  ap- 
plication.  It  embraces  in  its  operation  not  only  ordinary  agents  and 
attorneys,  but  all  persons  who  act  for  or  represent  others  in  business 
relations  and  transactions.  Thus  it  applies  to  directors,  managers, 
presidents,  cashiers,  and  other  officers,  while  engaged  in  the  busi- 
ness affairs  of  their  corporations;^  to  trustees  acting  on  behalf  of 
their  beneficiaries;-  to  an  agent  acting  on  behalf  of  a  married  wom- 
an;'' to  one  of  two  or  more  joint  agents;'*  and  to  all  actual  agents, 
whether  the  agency  be  express  or  implied.^  The  general  rule  also 
applies  wliere  the  same  agent  or  attorney  in  reality  acts  on  behalf 
of  both  parties  to  the  transaction;  for  both  the  grantor  and  the 
grantee,  the  vendor  and  the  vendee,  the  mortgagor  and  the  mortga- 
gee.'' This  special  api)!ication  of  the  rule  is  carefully  guarded  by 
the  courts,  so  that  it  shall  not  work  injustice,  and  is  not,  there- 
fore, enforced  unless  the  same  agent  is  in  fact  acting  for  both 
l)arties.'^ 

-.See  Boursot  v.   Savage,  L.  R.  2  Eq.   134,   142. 

'  Jiiirmingham  Trust  &  Sav.  Bank  v.  Louisiana  Xat.  Bank,  !)!)  Ala.  'Mi),  l.'i 
South.   112,  20  L.  R.  A.  600. 

-Willes  V.  Greenhill,  4  De  Gox,  F.  &  .7.  147,  150;  Batavia  v.  Wallace,  102 
Fed.  240,  42  C.  C.  .A.  .'510. 

• '  Satterlield  V.  Malone,  35  Fed.  445,  7  L.  R.  A.  35;  Goodbar  v.  Daniel,  88  Ala. 
-583,  7  South.  254,   16  Am.  St.  Rep.   76. 

MVittenbrock  v.  Parker,  102  Cal.  03,  36  Pac.  374,  41  Am.  St.  Rep.  172,  24 
L.  R.  A.  197;  Chapman  v.  Chapman,  91  Va.  397,  21  S.  E.  813,  50  Am.  St. 
Rep.  846. 

^  Watson  V.  Wells,  5  Conn.  468  (partner)  ;  Waldman  v.  North  British,  etc..  Ins. 
Co.,  91  Ala.  170,  8  South.  666,  24  Am.  St.  Rep.  883  (sub-agent)  ;  liates  v. 
American  Mortgage  Co.,  37  S.  C.  88,  16  S.  E.  883,  21  L.  R.  A.  340  (sub-agent). 
i\Iany  question  have  arisen  as  to  the  authority  of  soliciting  agents  and  other 
s])eeial  agents  of  insurance  companies  to  bind  their  principals  by  information 
received  in  the  discharge  of  their  duties;  especially  as  to  whether  the  knowledge 
obtained  by  such  an  agent  as  to  the  falsity  of  representations  made  by  the 
insured  is  imputed  to  the  insurer  so  as  to  effect  a  waiver  of  conditions  in  tlie 
policy.  See  Toilette  v.  Mutual  Accident  Ass'n,  110  N.  C.  377,  14  S.  E.  923. 
28  Am.  St.  Rep.  093,  15  L.  R.  A.  668;  Reed  v.  Equitable  F.  &  M.  Ins.  Co.,  17 
R.  1.  785,  24  Atl.  833,  18  L.  R.  A.  496. 

"Le  Neve  v.  Le  Neve.  Anib.  436,  2  Lead.  Cas.  Eq.,  4ih  .\m.  ed.  109,  1  Scott 
536;  Pine  Mt.  Iron  &  Coal  Co.  v.  Bailey,  94  Fed.  258.  36  C.  C.  A.  229;  Holden  v. 
New  York,  etc..  Bank,  72  N.   Y.  286. 

'.Also  the  mere  fact  thai  two  corjmrations  have  the  same  attorney,  or  tin- 
same  directors,  does  not  render  each  chargeable  with  notice  of  whatever  i-^ 
f-'Tiown  or  done  by  the  other:     See  In  re  Hampshire  Land  Co.   [1806]  2  Ch.  74:>. 


§  670  EQUITY     JURISrRUDEXCE.  304 

§668,     Limitations — Within  the  Scope  of  the  Agent's  Authority. 

■ — There  are,  on  the  other  hand,  certain  important  limitations  upon 
the  operation  of  the  general  rule.  The  employment  of  an  agent  or 
attorney  to  do  a  merely  ministerial  act  for  his  principal  does  not 
constitute  him  such  an  agent  that  the  rule  as  to  constructive  notice 
will  apply.^  Also,  in  pursuance  of  the  fundamental  doctrine  of 
agency  concerning  the  powers  of  agents,  the  notice  given  to  or  in- 
formation acquired  by  the  agent,  in  order  to  be  operative  upon  the 
principal,  must  be  within  the  scope  of  the  agent's  authority,  to  bind 
the  principal.  If  an  agent  cannot  bind  his  principal  by  acts  beyond 
the  limits  of  his  authority,  a  notice  beyond  those  limits  is  equally 
nugatory.- 

§  669.  Notice  to  Agent,  Actual  or  Constructive. — If  the  agency 
exists,  and  the  foregoing  requisites  are  complied  with  so  as  to  admit 
the  application  of  the  general  rule,  then  it  will  operate  with  equal 
force  and  effect,  whether  the  notice  to  the  agent  be  actual  or  con- 
structive. Actual  knowledge  may  be  brought  home  to  the  agent 
by  the  most  direct  evidence,  or  he  may  be  chargeable  with  construct- 
ive notice  by  a  lis  pendens,  by  a  registration,  by  recitals  in  title  deeds, 
by  possession  of  a  stranger,  or  by  circumstances  sufficient  to  put  a 
prudent  man  upon  an  inquiry;  in  all  suc-h  cases  the  effect  upon  the 
principal  is  the  same.^  The  notice  with  which  the  principal  is 
charged  is,  however,  constructive,  since  it  is  a  presumption,  and  gen- 
erally a  conclusive  presumption,  of  the  law,  and  takes  effect  even 
when  the  principal  in  fact  received  no  communication  of  information 
from  his  a  gent. - 

§670.  Essential  Requisites — (1)  When  the  Notice  must  be  Re- 
ceived by  the  Agent — During  His  Actual  Employment. — Having  thus 
stated  the  general  rule,  I  shall  now  proceed  to  describe  with  more 
fullness  its  essential  elements, — the  requisites  which  must  exist  in 
order  that  it  may  operate.  In  the  first  place,  as  to  the  time  when 
the  information  constituting  notice  must  be  acquired  by  or  given 
to  the  agent.  In  order  that  the  principal  may  be  affected  with  a 
constructive   notice   under  this   rule,   the   information   constituting 

^  As  wliere  lie  is  employed  siinjily  to  ])roeuio  (lie  execulion  of  a  deed:  Wylie 
V.  Pollen,  3  De  (Tex.  J.  &  S.  5ft(),  001:  ov  to  record  a  mortgage:  Anketel  v. 
Converse,  17  Ohio  St.  11,  91  Am.  Dec.  11.5.    As  to  sub-agents,  see  note  5  to  §  667. 

=  Pennoyer  v.  \Aillis,  20  Oreg.  1,  30  Pae.  568,  46  Am.  St,  Rep.  594;  Trentor 
V.  Pothen.  40  Minn.  298,  49  N.  W.  129,  24  Am.  St.  Rep.  225,  and  note. 

^  See  Kennedy  v.  (^reen,  3  Mylne  &  K.  099,  719,  per  Lord  Brougham;  Bank  of 
Tnited    States   v.    Davis,    2   Hill.    451,    401. 

-  i'hei-e  can  be  no  greater  misconception  of  its  legal  meaning,  and  no  more 
complete  confr.sion  of  the  distinctions  betAveen  the  two  kinds  of  notice,  than 
to  call  the  notice  imputed  In  a  principal  through  his  agent  an  "actual"  notice: 
See  Espin  v.  Pemberton,  3  De  (lex  &  J.  547,  554. 


305  COXCERXIXG    XOTICE.  §  671 

the  notice  must  be  obtained  by  or  imparted  to  the  agent  while  he 
is  in  fact  acting  as  agent, — while  he  is  actually  engaged  in  doing  his 
principal's  business,  in  pursuance  of  his  authority,  and  in  his  char- 
acter as  agent. ^  This  special  requisite  finds  a  frequent  application 
in  the  relations  subsisting  between  directors  and  officers  and  the 
corporations  to  which  they  belong.- 

§671.  (2)  In  the  Same  Transaction. — In  the  second  place,  in 
order  that  a  principal  may  thus  be  charged  with  constructive  notice, 
not  only  must  the  person  first  receiving  it  be  in  fact  an  agent  and 
be  actually  engaged  in  the  business  of  his  representative  employ- 
ment, but  the  notice  must  be  given  to,  or  the  information  acquired 
by,  the  agent  or  attorney  in  the  course  of  the  same  transaction  which 
is  sought  to  be  affected  by  the  constructive  notice;  that  is,  in  the 
same  transaction  from  which  the  principal's  rights  and  liabilities 
arise,  which,  it  is  claimed,  depend  upon  or  are  modified  by  the  con- 
structive notice  imputed  to  him.  This  is,  in  general,  a  Avell-settled 
reipiisite;  and  the  grounds  for  it,  depending  upon  motives  of  ex- 
pediency, were  thus  stated  by  Lord  Ilardwicke  in  an  early  case. 
A  different  rule,  he  said,  "would  make  purchasers'  and  mortgagees' 

'Saffron,  etc.,  Soc.  v.  Rayner,  L.  R.  14  Ch.  Div.  40() ;  Goodbar  v.  Daniel,  S8 
Ala.  583,  7  South.  254,  16 'Am.  St.  Rep.  76;  Witfcenbrock  v.  Parker,  102  Cal. 
93,   36   Pae.   374,   41    Am.   St.   Rep.    172,   24   L.   R.   A.    197. 

-  It  has  been  held  in  numerous  American  decisions  that  notice  given  to, 
or  information  acquired  by,  a  corporation  director,  manager,  or  officer  will 
not  affect  the  corporation  itself  with  a  constructive  notice,  unless  he  was  at 
the  time  of  the  giving  or  acquiring  acting  on  behalf  of  his  corporation.  It 
is  not  enough  that  he  was,  at  that  time,  clothed  with  the  official  character; 
lie  m)ist  also,  in  pursuance  of  his  official  functions,  have  been  actually  engaged 
in  transacting  the  biisiness  of  his  corporation.  There  are  two  exceptions 
or  limitations.  If  tlie  information  received  bj'  him  is  of  such  a  nature  or 
is  acquired  imder  such  circumstances  tiiat  it  is  a  part  of  his  express  official 
duly  to  comnuuiicate  what  he  knows  or  has  learned  to  the  managing  body 
or  board,  then  the  corporation  will  be  affected  with  a  constructive  notice. 
Also,  if  the  transaction  in  which  the  information  was  obtained  was  so  recent, 
(ir  the  information  itself  was  so  ])ositive,  direct,  and  strong,  that  it  must 
l)e  regarded  as  certainly  remaining  present  in  the  mind  or  memory  of  the 
odicial,  then  the  case  may  fall  imder  the  operation  of  a  rule  stated  in  a 
subsequent  paragraph  (post,  §672),  and  the  constructive  notice  to  the  corpora- 
tion may  follow:  Kearney  Bank  v.  Froman,  129  ]\Io.  427,  31  S,  W.  769,  50 
Am.  St.  Rep.  456;  Curtice  v.  Crawford  Co.  Bank,  110  Fed.  830.  Many  cases 
make  the  distinction  that  private  information  is  not  notice  to  the  corporatimi 
wlicn  the  officer  who  has  it  takes  no  part  in  the  transaction  which  is  sought 
to  lie  affected  with  the  constructive  notice,  but  that  if  the  officer,  having  pertinent 
information,  personally  participates  on  behalf  of  his  corporation  in  such 
subsequent  transaction,  Tlie  corporation  may  be  charged  with  his  knowledge, 
under  the  principle  of  §  672.  post:  Casco  Nat.  Bank  v.  Clark,  130  N.  Y.  307,  34 
N.  E.  90S,  36  Am.  St.  Rep.  705.  For  cases  where  the  officer  acts  in  the  transac- 
tion in  his  own  interest  and  adversely  to  that  of  the  corporation,  see  post,  §  675. 
30 


§  6?2  EQUITY     JUlUSrULDEXCE.  306 

titles  depend  altogether  on  the  memory  of  their  counselors;  and 
agents,  and  oblige  them  to  apply  to  persons  of  less  eminence  as 
counsel,  as  not  being  so  likely  to  have  notice  of  former  transac- 
tions. "^ 

§  672.  Limitation — Prior  Transaction. — The  foregoing  requisite, 
general  as  it  is  in  its  ai)[)li('aton,  is  subject  to  an  important  and 
"vvell-settled  limitation,  eijually  depending  upon  motives  of  expedien- 
cy. Where  the  transaction  in  question  closely  follows  and  is  inti- 
mately connected  with  a  prior  transaction  in  which  the  agent  was 
also  engaged,  and  in  which  he  acquired  material  information,  or 
where  it  is  clear  from  the  evidence  that  the  information  obtained 
by  the  agent  in  a  former  transaction  was  so  precise  and  definite 
that  it  is  or  must  be  present  to  his  mind  and  memory  while  engaged 
in  the  second  transaction,  then  the  foregoing  requisite  becomes  inap- 
plicable ;  the  notice  given  to  or  information  acquired  by  the  agent 
in  the  former  transaction  operates  as  constructive  notice  to  the 
principal  in  the  second  transaction,  although  that  principal  was  a 
complete  stranger  to  and  wholly  unconnected  with  the  prior  pro- 
ceeding or  business.^  The  explanation  of  this  special  rule  is  plainly 
to  be  found  in  the  notion  that  the  information  obtained  by  the 
agent  in  his  former  employment  Avas  of  such  a  nature,  so  detinite 
and  certain,  that  it  amounted  to  actual  l-iioiuledge :  and  as  knowledge 
it  is  retained  by  him  and  carried  with  him  into  the  subsequent  busi- 
ness which  he  transacts  on  behalf  of  his  new  principal.  While  this 
particular  rule  is  settled  by  a  .strong  array  of  authorities,  the  courts 
show  a  plain  determination  not  to  extend  it,  but  to  keep  it  confined 
within  narrow  and  necessary  limits.  The  two  essential  requisites 
of  the  general  rule,  together  with  the  foregoing  limitation,  are  the 
results  or  phases  of  one  legal  conception.  In  order  that  the  informa- 
tion obtained  b3'  an  agent  may  be  a  constructive  notice  to  his  prin- 
cipal in  any  given  transaction,  it  must  be  present  to  the  agent's 
mind  and  memory  while  he  is  engaged  in  the  transaction  which  is 
sought  to  be  affected.  This  is  universally  true.  If  the  agent  ac- 
quired the  infornuiti(m  while  acting  for  his  principal,  and  ivliiJc 
engaged  in  that  renj  same  transaction,  then  it  is  conclusively  pre- 
sumed that  he  retains  the  information  present  to  his  mind  and  in 
his  memory:  a  failure  of  memory  on  his  part  cannot  be  shown,  and 

'  Lowther  v.  Carlton.  2  Atk.  2-42.  1  Scott  .">01  ;  Banco  do  Lima  v.  Anglo-Peruvian 
Bank,  L.  R.  S  Cli.  Div.  100,  17."):  rrin<;lp  v.  Dunn,  .37  Wis.  449,  19  Am.  Rep. 
772,  H.  &  B.  92;  Constant  v.  University  of  Rochester,  111  N.  Y.  604,  19  N.  E. 
031,  7  Am.   St.   Rep.   im,  2   L.   R.   A.   734. 

^The  Distilled  Spirits,  11  Wall.  S.'SO;  Holden  v.  New  York  &  Erie  Bank.  72 
N.  Y.  280,  292;  McClelland  v.  Saul,  113  Iowa  208,  84  N.  W.  1034,  86  Am.  St. 
Rep.  370:  Brothers  v.  Bank  of  Kaukauna,  84  Wis.  381,  54  N.  W.  786,  36 
Am.    St.    Rep.    932. 


307  •  C'OXCEliiSlAU    NOTICE.  §64  5 

the  i)rincipal  is  chariied  with  the  constructive  notice.  If  the  agent 
ae(juired  the  iufonnation  in  a  former  and  independent  transaction, 
then  it  is  prima  facie  presumed  that  he  does  not  retain  it  present 
to  his  mind  and  memory  while  engaged  in  the  subsequent  trans- 
action in  behalf  of  a  principal  whom  it  is  sought  to  charge  with 
notice;-  but  this  presumption  may  be  overcome  by  evidence.  If, 
therefore,  it  be  clearly  shown  by  the  evidence  that  the  agent  did 
in  fact  retain  the  previously  acquired  information  present  to  his 
mind  and  memory  while  engaged  in  the  subsequent  transaction  on 
behalf  of  his  principal,  then  all  the  essential  elements  of  the  gen- 
eral rule  are  existing,  and  the  principal  is  thereby  charged  with 
constructive  notice.  This  is,  as  it  seems  to  me,  the  true  rationale 
of  the  doctrine  in  all  its  phases  and  applications,  and  is  fairly  de- 
ducible  from  the  decided  eases. 

§  673.  (3)  The  Information  Material,  and  Such  as  the  Agent  is 
Bound  to  Communicate. — A  third  requisite  is,  that  the  information 
acquired  by  the  agent  must  be  material  to  the  transaction  in 
which  the  principal's  rights  are  to  be  affected  by  a  notice,  and  it 
must  be  something  whith  it  is  the  duty  of  the  agent,  by  virtue 
of  his  fiduciary  and  representative  relation,  to  communicate  to  his 
principal.^  It  is  not  essential,  however,  that  the  agent  should  in 
fact  have  communicated  the  information  to  his  principal;  on  the 
contrary,  the  general  rule  of  constructive  notice  between  agent  and 
principal  depends  upon  a  legal  presumption — absolutely  conclusive 
except  in  two  special  instances — that  the  information  received  by 
the  agent  was  communicated  to  his  principal.  The  powerful  motives 
of  policy  inhere  in  this  very  presumption.-  Even  when  an  agent's 
failure  to  communicate  is  fraudulent,  provided  the  fraud  consists 
merely  in  such  concealment  and  failure,  the  conclusive  presumption 
still  arises,  as  will  be  more  fully  shown  in  the  following  para- 
graphs. 

§  674.     Exceptions. — 

§675.     Agent's  Fraud. — The  second  exception  is  much  more  im- 

-  Constant  v.  University  of  Rocliester,  111  N.  Y.  G04,  19  N.  E.  63],  7  Am. 
^^t.  Rep.  7()9,  2  L.  R.  A.  734;  Wittenbrock  v.  Parker,  102  Cal.  93,  36  Pac.  374, 
41   Am.   8t.   Rep.    172,  29   L.   R.   A.   197. 

M^yl!ie  v.  Pollen,  3  De  Gex,  J.  &  S.  596,  601;  Rolland  v.  Hart,  L.  R.  6  Cli. 
(>7S.  If  the  infoiniation  of  the  agent  was  acquired  in  a  previous  employment 
as  attorney  for  another  person,  and  was  private  and  confidential  in  its  nature, 
a  moral  and  lofjal  ol)lit)fation  would  rest  upon  him  not  to  disclose  it;  he  would 
be  under  no  duty  to  comnuuiicate  the  knowledge  to  a  subsequent  client,  and 
consequently  such  client  coiild  not  be  charged  with  constructive  notice.  The 
Distilled    Spirits.    11    Wall.    356. 

-Bradley  v.  Riches.  L.  R.  9  Ch.  Div.  ISO,  196:  WiUenbrock  v.  Parker,  102 
Cal.   93,   3(1    I'ae.   374,   41    Am.    St.    Rop.    172,   24   L.    R.   A.    197. 


S  ii^Q  Kl^UlTY     JUUJSl'KUDENCK.  •  o08 

poi'tant  and  of  far  Avider  application.  It  is  now  settled  by  a  series 
of  decisions  possessing  the  highest  authority,  that  when  an  agent 
or  attorney  has,  in  the  course  of  his  employment,  been  guilty  of  an 
actual  fraud  contrived  and  carried  out  for  his  own  benefit,  by  which 
he  intended  to  defraud  and  did  defraud  his  own  principal  or  client, 
as  well  as  perhaps  the  other  party,  and  the  very  perpetration  of 
such  fraud  involved  the  necessity  of  his  concealing  the  facts  fn.m 
his  own  client,  then,  under  such  circumstances,  the  principal  is  not 
charged  with  constructive  notice  of  facts  known  by  the  attorney 
and  thus  fraudulently  concealed.  In  other  words,  if  in  the  course 
of  the  same  transaction  in  which  he  is  employed  the  agent  commits 
an  independent  fraud  for  his  own  benefit,  and  designedly  against 
his  principal,  and  it  is  essential  to  the  very  existence  or  possibility 
of  such  fraud  that  he  should  conceal  the  real  facts  from  his  princi- 
pal, then  the  ordinary  presumption  of  a  connnunication  from  the 
agent  to  his  principal  fails;  on  the  contrary,  a  presumption  arises 
that  no  communication  was  made,  and  consequently  the  principal  is 
not  affected  with  constructive  notice.^  The  courts  have  carefully' 
confined  the  operation  of  this  exception  t%  the  condition  described 
where  a  presumption  necessarily  arises  that  the  agent  did  not  dis- 
close the  real  facts  to  his  principal,  because  he  was  committing 
such  an  independent  fraud  that  concealment  was  essential  to  its 
perpetration;  it  has  never  been  extended  beyond  these  circum- 
stances. It  follows,  therefore,  that  every  fraud  of  an  agent  in  the 
course  of  his  employment,  and  in  the  very  same  transaction,  does 
not  fall  within  this  exception;  and,  most  emphatically,  it  does  not 
apply  when  the  agent's  fraud  consists  merely  in  his  concealment 
of  material  facts  within  his  o-^vn  knowledge  from  his  principal. - 

§  676.  True  Rationale  of  the  Rule— Based  Wholly  upon  Policy 
and  Expediency. — The  rule  of  constructive  notice  through  agent  to 
principal,  like  the  doctrine  of  constructive  notice  in  general,  must 
find  its  ultimate  foundation  and  only  support  in  motives  of  policy 
and  expediency.    It  will  not  aid  us  in  the  least  to  inquire  whether 

'Cave  V.  Cave,  L.  E.  15  Ch.  Div.  639,  1  Scott  517,  Ames  Trusts  311;  American 
Surety  Co.  Paul}-,  170  U.  S.  133,  18  Sup.  Ct,  644;  Innerarity  v.  Merchants' 
Nat.  Bank,  13!)  Mass.  332,  1  N.  E.  282,  ,52  Am.  Eep.  710;  Gunster  v.  Scranton, 
etc..  Co.,  181  Pa.  St.  327,  37  Atl.  550,  59  Am.  St.  Rep.  650.  The  same  pre- 
sumption that  the  agent's  information  is  not  communicated  to  his  principal 
lias  been  held  in  very  many  cases  to  arise,  independently  of  any  question  of  fraud, 
whenever  the  agent  is  dealhig  Avith  tlie  principal  in  his  own  interest,  and 
adversely  to  the  interest  of  the  principal:  First  Nat.  Bank  v.  Christopher, 
40  N.  J.  L.  435,  29  Am.  Rej).  •2t;2. 

-  Boursot  V.  Savage,  L.  R.  2  Im].  134:  Holdcn  v.  New  York  &  Erie  Bank,  72 
X.  Y.  286;  Atlantic  Cotton  MUU  v.  Indian  Orchard  Mills,  147  Mass.  268,  17 
N.   £.   406,  9  Am.   St.   Rep.   698. 


30^'  coxc'i:i;xi.\(i    notick.  §  (mO 

it  should  be  derived  from  the  notion  that  the  agent  is  identical 
with  his  principal, — is  the  principal's  alter  ego, — or  from  the  notioii 
that  the  principal  cannot  be  allowed  to  acquire  and  retain  a  benefit 
through  means  of  an  act  or  proceeding  which  his  agent  knew  to  be 
wrong.  The  true  rationale  is,  as  I  have  already  shown,  that  the 
agent's  knowledge  of  material  facts, — not  necessarily  of  the  ultimate 
facts, — or  what  the  law  assumes  to  be  his  knowledge,  must  always, 
from  considerations  of  expediency,  be  regarded  and  treated  as  the 
principal's  knowledge;  otherwise,  the  business  affairs  of  society 
could  not  be  safely  transacted.  Whenever  the  knowledge  of  the 
agent  is  actual. — that  is.  whenever  he  has  obtained  actual  informa- 
tion of  certain  facts,  and  has  therefore  received  actual  notice. — 
this  imputation  of  his  knowledge  to  the  principal  is  evident  and 
reasonable.  Whenever  the  agent's  knowledge  of  certain  facts  exists 
only  in  contemplation  of  law, — that  is,  when  he  has  received  a  con- 
structive notice. — the  imputation  thereof  to  the  principal  is  no  le.^s 
reasonable  and  clear.  If.  under  any  circumstances,  a  party,  while 
dealing  for  himself,  must  be  treated,  in  contemplation  of  law,  as  onr- 
Avho  has  acquired  certain  information,  and  must  be  charged  witli 
constructive  notice  thei-eby.  the  same  result  must  follow  when,  un- 
der like  circumstances,  the  party  is  dealing  by  means  of  an  agent. 
If  that  assumed  information  called  constructive  notice  should  affect 
a  party  acting  for  himself,  it  should  equally  aff'ect  him  acting  through 
an  attorney.  As  the  doctrine  is  thus  based  entirely  on  motives  of 
policy,  it  should  never  in  its  application  transcend  the  scope  and 
limits  of  those  motives.  Whenever  its  operation  in  a  given  state 
of  facts  would  produce  manifest  injustice,  the  courts  should,  if 
not  absolutely  compelled  by  express  authority,  withhold  such  opera- 
tion. A  tendency  to  restrict  the  doctrine — to  confine  it  within  the 
limits  already  established — is  clearly  exhibited  by  many  of  the 
recent  decisions.  Some  of  the  ablest  judges  now  on  the  English 
bench  have  even  expressed  a  strong  dissent  from  the  doctrine  itself, 
in  some  of  its  phases  and  applications,  especially  where  a  principal 
is  charged  with  notice  of  information  acquired  by  his  agent  in  a 
former  transaction,  and  which  such  agent  is  assumed  to  have  re- 
membered. The  English  cases  in  Avhich  this  branch  of  the  rule 
commonly  arises  are  more  frequent,  involve  a  diff'erent  condition 
of  circumstances,  and  are  consequently  much  more  harsh  in  their 
eft'ects,  than  the  analogous  class  of  cases  which  come  before  the 
American  courts. 


i;(^UlTY     JLKJ^^i'JirDKNCE.  ;5J0 


SECTION  VI. 
CON'CEKNJ NG  PR lORlTlES. 

ANALYSIS. 

§  U77.  Questions    stated. 

§§  678-0U2.  First.     The   fumlaiiiontal   piiiieiples. 

§§   G79-081.  1.  Estates  and  interests  to  \\lii(h  tlie  doctrine  applies. 

§   082.  11.  Equitable  doctrine  of  priority,  in  yeneral. 

§§   083-U92.  111.  (Superior   and  equal   equities. 

§  083.  \\  hen  equities  are  equal. 

§§  084-092.  .Superior  equities  defined  and  described. 

§  685.  1.  From  their  intrinsic  nature. 

§i?   080,  687.  2.  From  the  eti'ects  of  fraud  and  negligence. 

SS   088-092.  3.  From  the  effects  of  notice. 

?  088.  General  rules  and  illustrations. 

§   089.  Notice  of  a  ]jrior  covenant. 

§§  690-692.  Time  of  giving  notice,  and  of  \\hat  it  consists. 

SS  093-734.  Hecona.     Applications   of   these   principles. 

SS  093-715.  Assignments  of  things  in  action. 

§  093.  Dearie  v.  Hall. 

S§   094-090.  1.  Notice  b}-  the  assignee. 

§  094.  Notice   to   debtor  not   necessary   as   between   assignor   and   assignee. 

g§   095-097.  English   rule,   notice  to   debtor   necessary   to   determine   the   priority 

among  successive  assignees. 

§S   69R-702.  Jl.  Diligence  of  the  assignee. 

§   098.  General   rules:     Judson  v.    Corcoran. 

§§  099-701.  Assignment  of  stock  as  between  assignee  and  a^^ignor  and  the 
company,  judgment  creditors  of  assignee,  and  subse(iuent  p\ir- 
chasers. 

§   702.  Notice  to  the  debtor  necessary  to  prevent  liis  subsc(|uent  acts. 

§S   703-715.  111.  Assignments  of  things  in  action  subject  to  e(piities. 

§S   704-706.  1.  Equities  in   favor  of  the  debtor. 

§   704.  General   rule:     assignments  of  nKirtgagcs;   kinds  <if  defenses. 

S§   705,706.  Provisions    in    codes    of    procedure. 

SS   707-713.  2.  Equities  between  successive  assigm)rs  and  assignees. 

§   707.  Conflicting  decisions:    mode  of  reconciling. 

SS   708,709.  General  rule:      assignment  subject  to   latent    equilies;    i!lu-trati(ins. 

SS  710,711.  When  the  rule  does  not  apply;  elVect  of  estoppel;  liue  lindis  of 
the  estop|)el  as  applied  to  sucli  assignments. 

§   712.  (Subsequent   assignee   obtaining  the   legal   title    jimtectcd    as    -.r   ],:iun 
fide    purchaser. 

§  713.  Successive    assignments    by    same    assignor    to    dilierent    assignees. 

§§  714,  715.  3.  Equities  in   favor  of  third  ])ersons. 

§  714.  General  rule:    assignments  subject  to  such  equities. 

§  715.  Contrary  rule:    assignments  free  from  all  latent  equities. 

§S   716-732.  Equitable   estates,   mortgages,   liens,   and   other   interests. 

§  717.  Doctrine  of  priorities  modified  by  recording  acts. 

§§   718,719.  1.  Priority  of  time  among  equal  equities. 

§   719.  Illustrations:     ^inuUtaneous    mortgages,    substituted    liens,    etc. 


311  concj:i;.\"i.\(!  ruioi^rriES.  §0^8 

§§  720-72(5.  Jl.  One  equity  intrinsically  the  superior. 

§  720.  Prior  general  and  subsequent  specific  lien. 
§§  721,722.  Prior  unrecorded  mortgage  and  subsequent  docketed  judgment. 

§  723.  8anie,  where  judgment  creditor  had  notice. 

§  724.  Prior   unrecorded    mortgage   and   purchase  at   execution   sale   under 
a  subsequent  jutlgmeiit. 

§  725.  Purchase-money   mortgages. 

§  726.  Other  illustrations. 
§§  727-729.  111.  A  subsequent  equity  protected  by  obtaining  the  legal  title. 

§  728.  Legal  estate  obtained  from  a  trustee. 

§  729.  Legal  estate  obtained  after  notice  of  prior  equity. 

§  730.  IV.  Notice  of  existing  equities. 
§§  731,732.  V.  Effect  of  fraud  or  negligence  upon  priorities. 
§§   733,  734.  Assignments  of  mortgages,  rights  of  priority  depending  upon  them. 

§  678.     First.     The  Fundamental  Principles — Equitable  Maxims. 

— As  was  stated  in  a  former  chapter,  the  doctrine  of  priorities  in 
equity  is  entirely  a  development  of  two  maxims :  Where  there  are 
equal  equities,  the  first  in  order  of  time  shall  prevail,  and  Where 
there  is  equal  equity,  the  law  must  prevail.^  It  was  there  shown, 
in  the  language  of  an  eminent  judge,  that  the  first  of  these  maxims 
means:  "As  between  persons  having  only  equitable  interests,  if 
their  interests  are  in  all  other  respects  equal,  priority  in  time  gives 
the  better  equity,  or  qui  prior  est  tempore,  potior  est  jure."-  The 
meaning  of  the  second  maxim  is:  "If  two  persons  have  equal  equit- 
able claim.s  upon  or  interests  in  the  same  subject-matter,  or  in 
other  words,  if  each  is  equally  entitled  to  the  protection  and  aid 
of  a  court  of  equity,  with  respect  of  his  equitable  interest,  and  one  of 
them,  in  addition  to  his  equity,  also  obtains  the  legal  estate  in  the 
subject-matter,  then  he  who  thus  has  the  legal  estate  will  prevail. 
This  precedence  of  the  legal  estate  might  be  worked  out  by  the 
court  of  equity  simply  refusing  to  interfere  at  all,  and  thereby 
leaving  the  parties  to  conduct  their  controversy  in  a  court  of  law, 
or  in  a  purely  legal  action,  where,  of  course,  the  legal  estate 
alone  would  be  recognized.""  It  follows  from  these  definitions 
that  the  entire  discussion  upon  which  we  are  entering  involves  the 
three  following  incjuiries:  1.  To  what  estates  and  interests  does 
the  equitable  doctrine  of  priorities  not  apply,  so  that  they  are 
left  completely  controlled  by  the  order  of  time?  2.  Under  w^hat 
circumstances  are  equities  "equal,"  so  that  they  are  left  controlled 
by  the  order  of  time?  and  under  what  circinnstances  is  one  of 
two  or  more  equities  superior  to  the  others,  so  that  the  order  of  time 

'Ante,  §§  413-417. 

-Ante,  §  414;  Rice  v.  Rice,  2  Drew.  73.  H.  &  B.  23.  1  Scott  334;  see  the 
the  paragraph  referred  to  for  the  entire  quotation. 

'Ante,  §  417:  Thnrndike  v.  Hunt,  3  Ue  Gex  &  J.  563,  570,  571;  Fitzsimmons 
V.  Ogdon,  7  Craiici),  2,  18. 


§  GT9  EQUITY     JUUISPKIUEXCE.  ?>Vi 

may  be  broken  in  upon,  and  the  equitable  doctrine  of  priorities 
may  control  ?  3.  Under  what  circnmstances,  two  or  more  equities 
being"  otherwise  "equal,"  can  the  holder  of  one  of  them  obtain, 
and  does  he  obtain,  the  legal  title,  so  that  the  order  of  time  may  be 
disregarded,  and  the  equitable  doctrine  of  priorities  may  prevail? 
The  full  answers  to  these  three  questions,  in  their  combination 
and  mntnal  effects,  plainly  constitute  the  entire  discussion  of  the 
subject. 

§  679.  I.  Estates  and  Interests  to  Which  the  Equitable  Doctrine 
Applies.  1.  Not  to  Legal  Estates. — Among  purely  legal  titles  to 
the  same  subject-matter,  successive  legal  conveyances  of  and  legal 
estates  in  the  same  tract  of  land,  the  equitable  doctrine  of  priorities 
growing-  out  of  the  presence  or  absence  of  notice,  or  of  a  valuable 
consideration,  or  of  any  other  incident,  has  absolutely  no  applica- 
tion nor  effect;  such  legal  titles,  estates,  and  interests  are,  in  the 
absence  of  any  statutory  modification,  completely  controlled,  with 
respect  to  their  prioritj',  by  the  order  of  time.^  Even  the  mere  want 
of  a  valuable  consideration  in  the  earlier  conveyance  Avould  not. 
at  the  common  law,  affect  the  priority  of  legal  right  given  by  the 
priority   of  time.- 

UJaines  v.  New  Orleans,  6  WaU.  642,  716,  per  Davis,  J.  The  truth  of  tliis 
proposition  is  clearly  seen  from  a  consideration  of  the  legal  conception  of 
estates  at  law  and  of  conveyances  and  charges  operating  at  law;  and  it  will 
plainly  appear  that  between  two  claimants  of  legal  estates  in  the  same  land, 
the  second  one  in  order  of  time  can  not,  in  the  absence  of  tlie  statutes  con- 
cerning registration,  avail  himself  even  of  the  position  of  bona  fide  purchaser 
for  a  valuable  consideration  and  without  notice.  If  A,  being  owner  of  a 
l)iece  of  land  in  fee,  conveys  it  in  fee  to  B,  and  afterwards  executes  a  deed 
ill  fee  of  the  same  land  to  C,  at  law  C  can  acquire  nothing.  In  contemplation 
of  law,  the  entire  estate  passed  by  the  deed  to  B,  and  there  was  no  interest  left 
which  could  be  transferred  to  C,  and  it  could  make  no  possible  difference  with 
this  result  whether  C  was  wholly  ignorant  of  the  prior  conveyance  or  was 
informed  of  it.  Again,  if  A  has  no  estate  at  all,  or  only  a  defective  one,  he  can 
not  by  a  deed  convej'^  any  more  or  better  estate  than  he  holds  himself  to  B.  and 
it  can  make  no  dift'erence  whether  the  defect  is  open  or  hidden,  or  whether  B 
buys  with  knowledge  or  in  ignorance  of  it :  Buckman  v.  Decker.  2:1  X.  -T. 
Eq.  2S.3.  Again,  in  an  action  of  ejectment  between  one  who  claims  luid'^r 
deed  or  other  papei* title,  and  one  who  claims  by  adverse  possession,  the  latter's 
notice  of  the  outstanding  paper  title  would  not  afTect  his  right  injuriously: 
the  titles  being  legal,  the  controversy  would  be  decided  upon  the  completeness 
of  the  adverse  possession,  or  the  validity  of  the  paper  title.  See  MaeOregor  v. 
Thompson,  7  Tex.  Civ.  App.  32,  26  S.  W.  640. 

-  If  A,  owning  the  land,  should  convey  it  as  a  mere  gift  to  B.  by  means  of  a 
conveyance  sufficient  in  kind  and  form  to  transfer  the  legal  estate,  and  so  that 
no  trust  should  result  to  himself,  and  should  afterwards  execute  a  deed  in  fee 
of  the  same  land  to  C,  who  should  pay  a  valuable  consideration  therefor.  C 
would  obtain  no  interest  whatever  at  the  common  law.  The  prior  conveyance 
to  B  woTild   exhaust   and   transfer  the   entire  fee,   as  fully  as  though   a   money 


313  coxcKHXiXG  riaoiaxiES.  §  6S1 

§  680.  Modifications  by  Statutes  concerning  Fraudulent  Con- 
veyances and  Recording. — Tliis  rule,  otherwi.se  uuiversal,  that 
among  successive  legal  estates  or  interests  in  the  same  subject- 
matter  the  order  of  time  controls,  has  been  broken  in  upon  by 
two  classes  of  statutes,  which  are,  within  the  scope  of  their  opera- 
tion, very  important.  The  first  of  these  classes  includes  that  of 
27  Eliz.,  c.  -1,  by  which  grants  of  land.s  made  for  the  purpose  of 
defrauding  subsequent  purchasers  are  declared  to  be  void  as  against 
siieh  subsequent  purchasers  for  a  valuable  consideration,  and  their 
representatives ;  and  the  statute  of  13  Eliz.,  e.  5,  by  which  convey- 
ances of  lands  or  chattels  made  for  the  purpose  of  delaying  or 
defrauding  creditors  are  declared  to  be  void  as  against  such  credit- 
ors and  their  representatives;  provided  that  the  act  shall  not  extend 
to  any  conveyance  made  in  good  faith  and  for  a  valuable  considera- 
tion to  a  person  not  having  notice  of  the  fraud.^  The  second  class 
embraces  the  recording  acts  of  the  various  states,  by  which  it  is 
generally  provided  that  every  conveyance  of  land  which  is  not  re- 
corded shall  be  deemed  void  as  against  a  subsequent  conveyance 
of  the  same  land,  made  for  a  valuable  consideration,  which  shall 
have  been  first  put  on  record;'-  and  also  the  similar  statutes  which 
postpone  the  lien  of  a  prior  undocketed  judgment  to  that  of  a 
subsequent  one  which  has  been  duly  docketed.^ 

§  681.  2.  To  Equitable  Estates  and  Interests  Alone. — The  equit- 
able doctrine  concerning  priorities  resulting  from  the  presence  or 


]>iice  liatl  been  paid,  and  no  interest  would  be  left  upon  which  C"s  deed  could 
operate.  The  fact  that  C  paid  value,  and  was  ignorant  of  the  former  convey- 
ance, could  not  destroy  the  legal  effect  of  the  prior  deed,  and  create  an  estate 
wliich  would  pass  to  C  by  his  conveyance.  It  is  entirely  the  result  of  statute 
tliat  r"s  conveyance  may  under  such  circumstances  obtain  the  precedence  at 
law. 

'Sep   post.    §§   968-974. 

-  See  ante,  §  646,  and  note.  It  is  evident  that  all  questions  concerning  legal 
conveyances  arising  under  the  recording  acts — questions  depending  upon  tin- 
fact  of  recording  or  not  recording,  upon  the  record  as  notice,  and  upon  tlie 
effect  of  an  actual  or  constructive  notice  of  a  prior  unrecorded  deed  given  to  a 
subsequent  grantee — belong  to  the  law,  and  do  not  constitute  any  part  of 
equity  jurisprudence.  The  estates  are  legal ;  the  conflicting  titles  l)ased  upon 
recorded  and  unrecorded  deeds,  or  involving  the  presence  of  notice  in  place  of  a 
record,  are  constantly  settled  by  means  of  the  legal  action  of  ejectment.  TJie 
effect  of  the  recording  acts  upon  mortgages,  on  the  other  hand,  belongs  to 
equity  jtirisprudence,  since,  in  any  theory  of  the  mortgage.  U  creates  an 
equitable  estate  or  interest.  It  should  be  observed,  however,  that  while  the 
recording  acts,  so  far  as  they  deal  with  legal  conveyances,  have  not  enlarged 
the  equitable  jnriffJicfwv.  they  have  greatly  enlarged  the  field  for  the  appli- 
cation, by  courts  of  law.  of  the  doctrine  of  bona  fide  purchase.     See  post,  §  7oS. 

"  See  ante.   Si;  042.  04.3. 


Jj  ()So  ja^LlTY     JUKl.-sJ'ltLDKXCl:;.  ol-i 

absence  of  notice,  or  of  a  valuable  consideration  or  other  incident, 
by  which  a  precedence  may  be  given  contrary  to  the  mere  order  oi 
time,  applies  to  conflicting  legal  and  eciuitable  estates  or  interests 
in  the  same  subject-matter,  and  to  successive  equitable  estates,  equit- 
able interests  such  as  liens  and  charges,  and  mere  "equities,"  mean- 
ing thereby  purely  remedial  rights,  such  as  that  of  cancellation, 
reformation,  and  the  like ;  and  it  applies  to  no  other  kind  of  estates, 
interests,  or  rights.^ 

§682.  II.  Equitable  Doctrine  of  Priority. — Having  thus  stated 
the  kind  of  interests  to  which  alone  the  equitable  doctrine  applies, 
we  shall  next  consider  the  nature,  scope,  and  operation  of  the 
doctrine  itself.  In  all  of  its  phases,  in  all  the  instances  where  it 
may  be  invoked,  the  equitable  doctrine  concerning  priorities  is 
embodied  in  three  most  general  and  fundamental  rules:  1.  Among 
."Successive  equitable  estates  or  interests,  where  there  exists  no 
special  claim,  advantage,  or  superiority  in  any  one  over  the  others, 
the  order  of  time  controls.  Under  these  circumstances,  the  maxim, 
Among  equal  equities  the  first  in  order  of  time  prevails,  furnishes 
the  rule  of  decision.^  2.  Between  a  legal  and  equitable  title  to 
the  same  subject-matter,  the  legal  title  in  general  prevails,  in  pur- 
suance of  the  maxim,  Where  there  is  ecjual  equity  the  law  must 
prevail.'-  3.  The  legal  title  being  outstanding,  and  not  involved  in 
the  controversy,  where  there  are  successive  unequal  etiuites  in  the 
same  subject-matter,  as  where  there  is  a  complete  or  perfect  equi- 
table estate  and  an  incomplete  or  imperfect  one,  or  a  mere  "erputy," 
or  where,  among  equitable  interests  of  a  like  intrinsic  nature,  one 
is  affected  by  some  incident  or  quality  which  renders  it  inferior 
to  another,  then  the  precedence  resulting  from  order  of  time  is 
defeated,  and  the  superior  equitable  estate  or  interest  prevails 
over  the  others,  as  is  manifestly  implied  in  the  maxim.  Where 
there  are  equal  equities  the  first  in  order  of  time  must  prevail.-^ 

§  683.  III.  Superior  and.  Equal  Equities. — In  determining  the 
scope  and  operation  of  the  foregoing  rules,  the  discussion  must 
largely  consist  in  ascertaining  when  equities  are  equal,  and  when 

'Basset  v.  Xosworthy,  Cas.  t.  Finch  102,  2  Lead.  Cas.  Eq.  1,  31,  40,  1  Scott 
.".40.  498;  Le  JS'eve  v.  Le  Neve,  Anib.  436,  2  Lead.  Cas.  Eq.  109,  117,  1  Scott  536; 
nice  V.  Rice,  2  Drew.  73,  H.  &  B.  23,  1  Scott  .536. 

M^.ice  V.  Rice,  2  Drew.  73,  H.  &  B.  23,  1  Scott  334:  Pliillips  v.  Pliillips. 
4  De  Gex,  F.  &  J.  208,  215,  Ames  Trusts  331,  H.  &  B.  72,  1  Scott  331,  511.  per 
Lord  VVestbury;  Berry  v.  Miit.  Ins.  Co.,  2  .lohns.  Cli.  603,  Sli.  104.  1  Scott  3.;. 
{See  post,  §  718. 

==  Fitzsininions  v.  Ogden,  7  Cranch  2,  18:  Fornian  v.  Brewer,  62  N.  J.  Eq. 
748,  48  Atl.  1012,  90  Am.  St.  Rep.  475.     See  ante,  §  417. 

^Le  Neve  v.  Le  Neve,  2  Lead.  Cas.  Eq.  109.  117,  144,  1  Scott  530;  Basset  v. 
Nosworthy,  2  Lead.   Cas.  Eq.   1,   1   Scott  340,  498. 


315  CONCKIi.Nl-NG    J'ltlUKJTlEb.  ji  <i84 

one  is  superior  to  another.  It  is  impossible  to  define  "equal  equi- 
ties" afHrnuitively  by  any  exact  formula.  It  is  certainly  not  enough 
that  two  successive  equitable  interests  in  the  same  thing-  should  be 
of  precisely  tlic  Mtiiie  nature,  for  even  then  one  mii>lit  be  accompanied 
by  some  collateral  incident  which  gave  it  a  precedence  over  the 
other  without  reference  to  their  order  of  time.  When  we  say 
that  A  has  a  better  equity  than  B,  this  means  that  according  to 
those  principles  of  right  and  justice  which  a  court  of  equity 
recognizes  and  acts  upon,  it  will  prefer  A  to  B,  and  will  interfere 
to  enforce  the  rights  of  A  as  against  B;  and  therefore  it  is  impossi- 
ble that  two  persons  should  have  equal  equities,  except  in  a  case 
in  which  a  court  of  equity  would  altogethei-  refuse  to  lend  its  as- 
sistance to  either  party  as  against  the  other. ^  Two  persons  have 
equal  equitable  interests  in  the  same  subject-matter,  when  each 
is  equally  entitled,  with  respect  of  his  equitable  interest,  to  the 
protection  and  aid  of  a  court  of  equity.  When  the  conrt  is  dealing 
with  such  successive  equitable  interests  in  the  same  subject-matter. 
and  they  are  all  thus  equal,  the  priority  in  time  determines  the 
priority  in  right;  and  the  fact  that  the  holder  of  the  subsequent 
interest,  under  these  circumstances,  acquired  it  wnthout  notice  of 
the  prior  one  does  not,  in  general,  give  him  any  right  to  be  pre- 
ferred.- The  foregoing  description  of  equal  equities  is  not  of  much 
practical  value,  since  it  states  the  effects  rather  than  the  nature 
of  equality.  We  shall,  in  fact,  determine  when  equities  are  equal 
by  ascertaining  when  they  are  unequal,  by  learning  what  qualities 
or  incidents  render  one  equity  superior  to  another  equity  in  the 
same  subject-matter. 

§  684.  Superior  Equities  Defined. — It  may  be  stated  that,  so 
far  as  their  intrinsic  nature  is  concerned,  a  court  of  equity  recog- 
nizes no  inequality,  based  upon  their  form  and  mode  of  creation, 

'  .See  Rice  v.  Rice,  2  Drew.  73,  1  Scott  334,  H.  &  B.  23. 

=■•  Phillips  V.  Phillips,  4  De  Gex,  F.  &  J.  208,  21.5,  H.  &  B.  72.  Amos 
Tr.  331,  1  Scott  333,  511;  Cory  v.  P:yre,  1  De  Gex,  J.  &  S.  149.  1(17; 
Newton  V.  JSewton,  L.  R.  6  Eq.  13.5,  140;  Jones  v.  Jones,  8  Sim.  (i.'?3. 
These  decisions,  and  the  reasoning  upon  which  they  are  based,  sliow 
that  one  wiio  purchases  an  equitable  estate,  or  acquires  an  equitable  in- 
terest, obtains  only  the  right  of  his  own  vendor:  the  facts  of  his  paying 
value  and  of  not  having  notice  do  not  of  themselves  entitle  him  to  take 
])recedence  over  a  prior  vendee  or  encumbrancer;  some  quality  imparting  to 
his  estate  or  interest  an  intrinsic  superiority  would  be  necessary  to  give 
him  preference:  York  v.  McNutt,  16  Tex.  13,  f>7  Am.  Dec.  607;  Sumner  v. 
Waugh.  50  111.  .531:  Bruschke  v.  Wright.  Ififi  111.  183,  57  Am.  St.  Rep.  125. 
40  N.  E.  813.  The  recording  acts  may  modify  the  operation  of  the  equitable 
rule  in  this  country,  because  they  give  to  a  recorded  mortgage  or  other  equitable 
encumbrance  the  very  quality  which  imparls  to  it  an  intrinsic  superiority, 
under   the   statute,   over   one   which    is   not    recorded. 


§  USo  EQUITY     JUKliiPKUDENCE.  316 

c'ljiong  all  perfected  equitable  interests  based  upon  a  valuable 
consideration  and  arising  in  any  manner  by  which,  in  contempla- 
tion of  equity,  an  interest  in  the  very  thing  itself — the  land,  the 
chattels,  or  the  fund — is  created.  If  there  is  a  valuable  considera- 
tion, and  an  equitable  interest  in  the  very  subject-matter  itself 
has  been  perfected,  it  does  not  seem  to  aft'ect  their  qualities,  whether 
such  interest  arose  from  a  declaration  of  trust,  from  an  assignment, 
from  a  contract  express  or  implied,  or  from  acts  such  as  the 
deposit  of  title  deeds.  A  valuable  consideration  is,  however,  a 
most  important  element.  The  whole  history  and  scope  of  equity 
jurisprudence  show  that  a  valuable  consideration  is  always  regard- 
ed as  a  most  essential  requisite  to  the  existence  of  complete  equit- 
able estates  and  interests  of  all  kinds.  Assuming  this  conclusion 
as  general  1}%  if  not  even  universally,  true,  the  various  causes 
which  will  render  one  equity  superior  to  another  may  be  formu- 
lated in  three  general  rules.  It  will  be  seen  that  the  first  of  these 
rules  relates  to  the  intrinsic  natiire  of  the  two  interests  which  are 
compared;  the  second  rehites,  not  to  their  nature,  but  to  a  quality 
inseparably  connected  with  them,  and  constituting  the  occasion 
for  their  existence;  the  third  relates  neither  to  their  nature  nor 
(qualities,  but  to  a  mere  external  or  collateral  incident  affecting  them 
at  their  origin.     These  three  rules  are  as  follows: — 

§685.  1.  Nature  of  the  Equities. — The  equitable  interest  created 
by  a  trust,  or  by  a  contract  in  rem,  made  upon  a  valuable  con- 
sideration, is  superior  to  the  etpiity  arising  from  a  mere  voluntary 
transfer,  a  mere  gift,  or  from  a  mere  judgment  lien.  In  contem- 
plation of  equity,  the  interest  created  by  a  trust,  or  by  a  valid 
executory  contract  of  sale,  or  by  a  valid  contract  giving  rise  to 
a  lien,  or  by  an  act  in  connection  with  such  a  contract  constituting 
a  lien, — as,  for  example,  a  deposit  of  title  deeds, — is  a  real,  benefi- 
cial interest  m  tlie  specific  thing  itself,  — an  interest  which  is  prop- 
erty, or  analogous  to  property;^  and  although  such  interest  is  not 
recognized. by  the  lav;",  it  is  treated  by  courts  of  equity  as  actually 
subsisting,  and  as  binding  upon  the  conscience  of  the  original  party 
who  held  the  thing  and  who  created  the  interest.-  On  the  other 
hand,  while  the  interest  acquired  by  a  transfer  without  considera- 
tion, by  a  voluntary  gift,  may  be  protected  if  it  does  not  interfere 
with  third  persons,  yet  the  voluntary  transferee  or  donee  can  onh* 
receive  whatever  interest  the  donor  was  actually  entitled  in  con- 
science and  good  faith  to  bestow;  he  never  obtains,  even  as  against 

^  This  is  the  fundamental  distinction  between  the  legal  and  the  equitable 
view  of  executory  contracts  concerning  some  specific  subject-matter.  8ee  ante, 
$8   146-149. 

-Cory  V.  Kyre,  1  De  Gex,  J.  &  S.   149.   1G7. 


317  COXCKHXING    ITvlOKlTlES.  ^  G8G 

the  donor,  and  much  less  as  against  third  persons  dealing  with 
the  donor  in  respect  to  the  same  thing',  any  jjaramount  right  of 
his  own.  The  consideration  on  the  one  side,  and  the  absence  of  it 
on  the  other,  lie  at  the  very  bottom  of  the  eqnitable  theory  con- 
cerning actual  rights/'  The  lien  of  a  judgment  is  analogous  to 
the  claim  of  a  donee;  it  is  general,  not  specific.  The  beneficiary 
under  a  trust,  the  vendee  under  an  agreement,  the  holder  of  a 
lien  created  b}'  a  contract  in  rem,  deals  concerning  a  specific 
thing;  he  parts  with  the  consideration  upon  the  security  of  that 
specific  thing;  he  obtains  an  equitable  interest  in  that  specific  thing. 
The  judgment  creditor  has  not  dealt  with  that  specific  thing;  he 
has  not  parted  with  value  in  contemplation  of  it;  his  lien  is  gen- 
eral, and  not  confined  to  it.  It  is  just,  therefore,  that,  so  far  as 
their  intrinsic  natures  are  concerned,  his  claim  should  be  consid- 
ered as  inferior  to  the  interest  arising  from  a  trust  or  from  a 
contract  in  rem.  His  lien  only  extends  to  what  his  debtor  really 
has.— that  is,  to  the  thing  subject  to  all  the  eciuities  in  its  exist- 
ing at  the  date  of  the  judgment.* 

§  686.  2.  Effects  of  Fraud. — The  equity  acquired  by  a  party 
who  has  been  misled  is  superior  to  the  interest  in  the  same  subject- 
matter  of  the  one  who  willfully  procured  or  suffered  him  to  be 
thus  misled.  The  following  example  illustrates  the  operation  of 
this  rule,  and  the  principle  underlying  it  may  be  generalized  and 
applied  to  all  analogous  cases.  A,  being  about  to  part  with  value 
to  B  upon  the  security  of  B's  estate,  informs  C.  of  his  intention, 
and  asks  C  whether  he  has  any  incumbrance  on  the  estate ;  C 
denies  that  he  has  any.  and  A,  relying  upon  this  denial,  parts 
with  money  or  other  value  to  B ;  in  fact,  C  had  at  the  time  a 
mortgage  or  other  encumbrance  upon  the  estate ;  this  mortgage  or 
lien,  although  prior  in  time,  would,  by  reason  of  C's  fraud,  be 
postponed  to  the  subsequent  interest  acquired  by  A.  The  basis  of 
this  rule  is  the  conduct  which  equity  regards  as  constituting 
fraud,  either  an  actual  intention  to  mislead,  or  that  gross  negligence 
which  produces  all  the  effects  and  merits  all  the  blame  of  intentional 

"Green  v.  (iivan.  .S3   X.   Y.   343.     See.  also.  post.  §   (i!tl. 

"It  is  settled  in  Knjiland,  in  aeeordanee  with  this  iiile,  that  the  interest 
of  a  eestui  que  trust,  of  the  vendee  under  an  executory  contract,  and  of  an 
equitable  niortaafree  i,y  contract  or  by  deposit  of  title  deeds,  is  superior  to  that 
of  a  subsequent  judgment  against  the  trustee,  vendor,  or  mortgagor,  even 
though  the  legal  estate  may  have  been  acquired  under  tlie  judgment  by  means 
of  an  elegit:  Wliitworth  v.  Cnugain.  3  Hare  41  f..  1  Phil.  Ch.  728,  Ames  Tr. 
408.  Tliis  particular  rule  has  been  niodilied  or  altered  by  statute  in  several 
of  the  states.  See  post,  §§  721-724.  where  this  subject  is  more  fully  exanuneil. 
Jn  general,  see  Harney  v.  First  Nat.  liank.  52  N.  J.  Eq.  097,  29  Atl.  221; 
Gates   Iron   Works   v.   Cohen,   7   Colo.   A])p.   341,   43    I'ae.   0(17. 


§  (338  z.(lLil^\      jLUiSPKLUh^Ci.,  ;51g 

deception.^  It  is  not,  however,  necessary  that  the  party  having-  au 
interest  or  title,  under  such  circumstances,  when  applied  to,  should 
use  positive  misrepresentations  cr  expressly  deny  the  exi.stenee 
of  his  right;  it  is  sufficient  if  he  refrain  from  disclosing  his  claim, 
and  suffer  a  third  person  to  deal  with  the  property  as  his  own,  or 
to  acquire  an  interest  in  or  lien  upon  it;  he  will  not  be  permitted 
to  set  up  or  enforce  his  interest  in  preference  to  that  obtained 
by  the  person  whom  he  has  suffered  to  be  misled  by  his  silence. - 

§  687.  And  of  Negligence.— The  rule  extends  to  gross  negligence, 
which  is  tantamount  in  its  ett'ects  to  fraud.  An  equity  otherwise 
equal,  or  even  prior  in  point  of  time,  may,  through  the  gross  laches 
of  its  holder,  be  postponed  to  a  subsequent  interest  which  another 
person  was  enabled  to  acquire  by  means  of  such  negligence.^  To  ad- 
mit the  operation  of  this  rule  in  either  of  its  phases,  and  to  displace 
the  otherwise  natural  order  of  priority,  there  must  be  intentional 
deceit, — that  is,  intentional  misrepresentation  or  suppression  of 
the  truth, — or  else  gross  negligence.  In  the  one  case,  the  party 
l)0ssessing  the  claim  which  it  is  sought  to  postpone  must  both  knoAV 
of  his  own  right  and  also  of  the  other  person's  intention  to  acquire, 
or  of  his  acts  in  acquiring,  an  interest  in  the  same  subject-matter. 
In  the  other  case  there  must  be  gross  laches,  for  mere  carelessness 
or  ordinary  negligence  will  not  suffice  according  to  the  weight 
of  modern  authority.- 

§688.  3.  Effects  of  Notice— Illustrations.— The  third,  and  in 
its  practical  effects  by  far  the  most  important,  rule  is,  that  a  party 
taking  with  notice  of  an  equity  takes  subject  to  that  equity.  The 
full  meaning  of  this  most  just  rule  is,  that  the  purchaser  of  an 
estate  or  interest,  legal  or  equitable,  even  for  a  valuable  considera- 
tion, with  notice  of  any  existing  equitable  estate,  interest,  claim, 
or  right,  in  or  to  the  same  subject-matter,  held  by  a  third  person. 
is  liable  in  equity  to  the  same  extent  and  in  the  same  manner  as 
the  person  from  whom  he  made  the  purchase;  his  conscience  is 
e(iually  bound  with  that  of  his  vendor,  and  he  acquires  only  what 
his  vendor  can  honestly  transfer.^     The   applications  of  this  rule 

^Storrs  V.  Barker,  6  Jolins.  Ch.  ICG,  ItlS.  ]()  Am.  Dec.  316;  Hooper  v. 
Central  Trust  Co.,  SI  Md.  559,  32  All.  505,  2!)  L.  R.  A.  202;  Miller  v.  :Merine. 
43   Fed.  26].     See,  also,  post,  §§731,  732. 

=  Nicholson  v.  Hooper,  4  Myhie  &  C.  179:   Carr  v.  Wallace,  7  Watts  294.  400. 

'Northern  Counties,  etc.,  Co.  v.  Whipp.  L.  R.  26  Ch.  Div.  482.  1  Scott  3.53; 
In  re  Castell  and  Brown  (1898).  1  Ch.  315;  Heyder  x.  Excelsior  B.  &  L.  Ass'n. 
42  N.  J.  Eq.  403,  8  Atl.  310.  59  Am.  Rep.  49,  H.  &  B.  70;  Frost  v.  Wolf.  77 
Tex.  455,  14  S.  W.  440,  19  Am.  St.  Rep.  761.     See,  also,  post,  §§  731.  7.32. 

-Hewitt  V.  Loosemore.  9  Hare  449.  458;  and  see  ante,  §§  606,  612.  But  cf. 
Farrand  V.  Yorkshire  Bke.  Co..  40  Ch.  D.  182. 

'Le  Neve  v.  Le  Neve,  Amh.  436,  2  Lead.  Cas.  Eq.  4th  Am.  ed.   109,   1   Scott 


31.9  COXCEliNJXU    I'KIOKITIES.  §  680 

are  as  mimerons  as  are  the  various  Ivinds  of  equitable  interests. 
The  following  are  some  of  the  most  important:  A  purchaser  with 
notice  of  a  trust,  either  express  or  implied,  becomes  himself  a  trus- 
tee for  the  beneficiary  Avith  respect  of  the  property,  and  is  bouml 
in  the  same  manner  as  the  original  trustee  from  whom  he  puv- 
ehased."  A  purchaser  or  mortgagee  with  notice  of  the  equita])l(^ 
lien  of  a  vendor  for  unpaid  purchase  price  takes  the  land  subject 
to  that  lien."  A  purchaser  or  mortgagee  of  the  legal  estate,  with 
notice  of  an  equitable  lien  created  by  a  deposit  of  title  deeds, 
or  by  a  prior  defective  mortgage,  or  by  any  other  means  from 
which  an  equitable  lien  can  arise,  is  bound  by  the  lien.*  A  pur- 
chaser with  notice  of  a  prior  contract  to  sell  or  to  lease  takes 
subject  to  such  contract,  and  is  bound  in  the  same  manner  as  his 
vendor  to  carry  it  into  execution.^  These  examples  are  of  ordinary 
occurrence. 

§689.  Notice  of  a  Prior  Covenant. — On  the  same  principle,  if 
the  OAvner  of  land  enters  into  a  covenant  concerning  the  land,  con- 
cerning its  use,  subjecting  it  to  easements  or  personal  servitudes, 
and  the  like,  and  the  land  is  afterwards  conveyed  or  sold  to  one 
who  has  notice  of  the  Covenant,  the  grantee  or  purchaser  will  take 
the  premises  bound  l^y  the  covenant,  and  will  be  compelled  in  equity 
either  to  specifically  execute  it,  or  will  be  restrained  from  violating 
it ;  and  it  makes  no  difference  whatever,  with  respect  to  this  liability 
in  equity,  whether  the  covenant  is  or  is  not  one  which  in  law 
''runs  wnth  the  land."^  Notice,  although  a  collateral  incident,  is 
thus  perhaps  the  most  powerful  element  in  creating  a  superiority, 
and  in  disturbing  an  order  of  priority  Avhich  would  otherwise  have 
existed.  It  may  destroy  the  precedence  which  a  legal  estate  ordi- 
narily has  over  an  equitable  one ;  it  may  operate  as  well  between 

.5.30;  see  ante,  §  591:  Indiana  I.  &  J.  R.  Co.  v.  Swannell.  1.57  111.  61fi.  41  N.  E. 
nSJ).  .30  L.  R.  A.  290;  Widdiconibe  v.  Childers,  84  Mo.  382  (patentee  of  <rovernm('iit 
land  with  notice  of  equitable  right  of  prior  locator)  ;  Snyder  v.  Partridge.  138  III. 
173.  29  N.   E.   8.51,  32   Am.   St.   Rep.   130    (purchaser  with   notice  of   mistake). 

'Saunders  v.  Dehew,  2  Vern.  271,  Ames  Tmists  289:  Wetmore  v.  Porter.  92 
X.  Y.  77.  Ames  Trusts  262;  Indiana,  T.  &  I.  R.  Co.  v.  Swannell,  157  111.  filfi.  41 
N.  E.   989,  30  L.  R.  A.  290.     See,  also,  post,   §  1048. 

=  .Mackreth  v.  Symmons,  15  Ves.  329,  3.50,  1  Scott  71;  Poe  v.  Paxton,  26  W.  Va. 
607.     See,  also,  post,   §  1253. 

Mennings  v.  Moore,  2  Vern.  609:  Dunman  v.  Coleman,  59  Tex.  199,  67  Tex. 
390.  3  S.  \V.  319. 

'^  .7acl<son's  case.  Lane,  60,  1  Ames  Eq.  Juv.  143,  2  Scott  471;  Daniels  v. 
Davison.  16  Ves.  249.  2  Scott  472:  Union  Pac.  R'y  v.  McAlpine,  129  U.  S.  309, 
314,  9  Sup.  (^t.  286;  Lovejoy  v.  Potter.  60  Mich  95.  26  N.  W.  844.  2  Keener  4.5S. 

'Tulk  V.  Moxhay,  11  Beav.  .571.  2  Phil.  Ch.  774.  1  Ames  Eq.  .Tur.  147.  2  Scott 
486.  2  Keener  545:  Barrow  v.  Richard,  8  Paige  351,  35  Am.  Dec.  713.  1  Ames 
Eq.  .lur.  173,  2  Scott  521,  2  Keener  461.  For  a  fuller  treatment  of  this  subject, 
see    post,    §   129.5. 


§  (i!);;^  Ei^uiTY  juiusrnuDENCE.  320 

legal  and  equitable  estates  in  the  same  thing  as  between  success- 
sive  estates  or  interests  which  are  purely  equitable. 

§  690.     1.     What  is  Notice,^ 

§  691.  2.  Time  of  the  Notice. — At  what  time  must  notice  be  given 
to  a  party  so  that  his  right  may  be  subordinate  to  the  equity  of 
which  he  is  actually  or  constructively  informed?  In  answering  this 
question,  the  two  following  rules,  already  stated,  must  constantly 
))e  borne  in  mind:  that  among  purely  equitable  interests  which  are 
equal,  the  order  of  time  controls,  so  that  the  absence  of  notice 
cannot  give  a  subsequent  equity  any  precedence  over  a  prior  one 
of  equal  standing;  and  that  a  trust  or  equity  created  by  a  contract 
in  rem  is  superior  to  the  interest  acquired  under  a  voluntary  con- 
veyance or  transfer.  It  is  plain,  then,  that  the  facts  of  the  subse- 
quent estate,  being  legal  rather  than  e(iuital)le,  and  of  a  valuable 
consideration  having  been  actually  paid,  must  play  a  most  impor- 
tant part  in  determining  the  proper  time  of  giving  the  notice.  In 
the  first  place,  therefore,  the  decisions,  both  English  and  American, 
are  all  agreed  that  the  notice  received  before  the  party  has  actually 
paid  the  money  or  parted  with  the  other  valuable  consideration 
is  a  valid  and  binding  notice,  and  subjects  his  interest  to  the  prior 
equity  of  M^hich  he  i.s  thereby  notified;  and  this  is  true  even  though 
he  has  already  taken  a  conveyance  of  the  legal  title  and  has  given 
security  for  the  purchase  price  even  by  an  instrument  under  seal.^ 
The  reason  is,  that  the  conveyance  of  the  legal  estate  is,  under 
such  circumstances,  a  voluntary  one,  because  the  agreement  to 
pa\'  tiie  price,  and  the  security  given  therefor,  are  in  reality  mere 
nullities.  Although,  originally,  the  party  might  have  had  no  de- 
fense at  law  against  a  recovery  of  the  amount  agreed  to  be  paid, 
he  always  had  ample  relief  in  a  court  of  equity,  which  would  decree 
the  surrender  and  cancellation  of  the  security,  and  perpetually 
enjoin  any  action  at  law  for  the  price.  In  most  of  the  American 
states  the  defense  of  a  total  failure  of  the  consideration,  under  such 
circumstances,  would  now  be  available  at  law.  .  .  . 

§  692.  3.  Of  What  the  Notice  must  Consist. — It  is  not  true  that 
a  notice  of  any  kind  and  ever}-  species  of  right  or  claim  will  thus 
afl'ect  and  subordinate  the  estate  of  the  party  receiving  it.  The 
notice  required  hy  the  general  rule  under  consideration  must  be  of 
an  actual  equity,  of  something  which  equity  regards  as  an  interest 
in  the  subject-matter  itself,  although  such  may  not  be  its  nature 
in  contemplation  of  the  law.^    Furthermore,  this  interest  must  be  of 

'  See  ante,  sec.  v.,  §§  591-67fi. 

'  Brown  v.  Welch,  18  111.  343,  CS  Am.  Dec.  5-19:  Haytlen  v.  Charter  Oak  Driving 
Park,  fi3  Conn.  142,  27  Atl.  232.     See  post,  ^  7.50,  755. 
'Van  Cloostere  v.   Logan,   149  111.   588,  36  N.  E.   946. 


'321  eoNCi;i;-\iX(;   i'Kioiutiks.  §  On:! 

such  a  eliaraeter.  that  if  it  were  clothed,  in  the  hands  of  its  holder, 
Avith  a  legal  title,  it  would  be  indefeasible.  The  fact  that  an  interest 
IS  equitable  shall  not  render  it  liable  to  be  defeated  b}^  a  party 
with  notice  of  it,  provided  it  would  be  indefeasible  if  legal.  On  the 
other  hand,  notice  of  a  legal  interest  whicli  is  defeasi- 
ble, or  of  an  equitable  interest,  which,  if  legal,  would  l)e 
defeasible,  does  not  bind  the  party  receiving  it,  nor  subordinate 
the  estate  in  his  hands.-  The  general  rule  as  to  the  effect  of  notice 
must  therefore  include  all  trust  estates  express  or  implied,  the 
equitable  estate  of  the  vendee  in  a  contract  for  the  sale  of  land, 
the  equitable  estate  arising  from  the  doctrine  of  conversion,  equi- 
table mortgages,  liens,  and  charges,  covenants  creating  equitable 
easements  and  servitudes,  and  the  like.  Notice,  however,  of  a 
prior  conveyance  made  with  intent  to  defraud  subsequent  purchas- 
ers, and  declared  void  by  the  statute,  will  not  affect  the  rights 
of  a  subsequent  purchaser  for  value,'  nor  of  a  prior  contract  which 
the  purchaser  had  ab  initio  a  right  to  nullify.'*  Prior  unrecorded 
conveyances  and  mortgages  may  appear  to  be  exceptions  to  this 
rule,  but  are  not  in  reality.'^  Having  thus  explained  the  funda- 
mental principles  upon  which  the  equitable  doctrine  of  priorities 
is  based,  I  shall  now  describe  some  of  the  most  important  classes 
of  cases  in  which  these  principles  are  applied 

§  693.  Second.  Applications  of  These  Principles — Assignments 
of  Things  in  Action. — Where  the  creditor  party  in  a  thing  in  ac- 
tion assigns  the  debt  to  successive  assignees,  where  a  fund  being- 
held  under  a  trust  the  cestui  que  trust  assigns  his  interest  therein 
to  successive  assignees,  and  wdiere  a  person  entitled  thereto  makes 
successive  equitable  assignments  of  a  fund  to  different  parties, 
the  interests  accpiired  by  the  assignees  in  each  instance  are  equi- 
table.i     It  might  therefore  appear,  at  first  blush,  that,  as  the  legal 

'See  Adams's  Equity,   152    (32.1). 

=  Pulvertoft  V.  Pulvertoft,  18  Yes.  84;  Buckle  v.  Mitchell,  IS  Ves.  100. 

*Lufkin  V.  Nun,  11  Ves.  170-  Graybill  v,  Brugh,  89  Va.  895,  37  Am.  St. 
Bep.  894,  17  S.  K  558,  H.  &  B.  677. 

'  They  are  apparent  exceptions,  because  the  prior  unrecorded  conveyances 
and  mortgages  are  declared  by  the  statute  to  be  void  as  against  subsequent 
purcliasers  whose  deeds  or  mortgages  are  recorded,  and  the  estates  created  by 
Ihem  appear  therefore  to  be  defeasible.  They  are  not  real  exceptions,  because 
liy  the  judicial  interpretation,  which  has  even  been  incorporated  into  most 
of  the  modern  American  statutes,  the  chief  object  of  the  registry  is  to  give 
a  constructive  notice,  and  a  noiice  of  any  other  kind  merely  supplies  the  jilace 
of  that  prescribed  by  the  statute.     See  ante,  §§  659,  660,  665. 

'This  is  unquestionably  so  in  every  ease  of  an  assignment  by  a  cestui  (]i'.i' 
trust,  and  of  an  equitalde  assignment  of  a  fund.  It  was  also  true  of  all 
assignments  of  ordinary  cJtoftcs  m  action,  debts,  etc.,  until  recent  statutes  lii 
England    and    in   this    country    have    had   tlie    etlect    to    clothe   the    assijjnoe    ut 


§,  693  EQUITY   JUKISPRUDI-NCE.  323 

estate  is  oiitstanuiiiti'.  and  as  the  interests  of  all  the  successive  as- 
signees are  similar  in  their  essential  nature,  the  general  rule,  where 
there  are  equal  equities  the  first  in  order  of  time  must  prevail,  should 
govern  them,  v^^ithout  regard  to  any  notice  which  might  or  might 
not  have  been  given  to  subsequent  assignees;  in  other  words,  that, 
under  these  circumstances,  the  maxim.  Qui  prior  est  tempore,  potior 
est  jure,  should  control.  There  are,  however,  certain  important 
elements  which  plainly  distinguish  these  assignments  from  other 
kinds  of  successive  equities,  and  remove  them  from  the  operation 
of  the  general  rule.  When  an  equitable  interest  in  land  is  created, 
the  holder  thereof  can  often  protect  himself  by  a  possession  of  the 
title  deeds  in  England,  or  by  a  registration  in  this  country.  When 
chattels  are  sold  and  transferred,  the  title  of  the  purchaser  is  se- 
cured against  all  the  world  by  a  delivery.  No  such  safeguards  in- 
here in  the  assignments  above  mentioned.-    The  legal  title  or  right 

debts,  money  demands,  and  other  ordinary  things  in  action  with  a  Jesjal  ri<,'ht: 
See  post,  §§  1273,  1274.  This  legislation,  however,  has  not  affected  the  doctrines 
discussed  in  the  text.  These  doctrines  were  settled  while  the  interests  were 
purely  equitable,  and  have  not  been  abrogated  by  the  new  jurisdiction  at  law. 
^  The  peculiar  nature  of  such  assignments,  which  distinguishes  them  from 
other  equitable  interests,  was  admirably  described  by  Sir  Thomas  riuiner, 
M.  R.,  in  the  leading  case  of  Dearie  v.  Hall,  3  Russ.  1,  12:  "Where  a  contract 
res])ecting  property  in  the  hands  of  other  persons  who  have  a  legal  right  to 
the  possession  is  made  behind  the  back  of  those  in  whom  the  legal  interest 
is  thus  vested,  it  is  necessary,  if  the  security  is  intended  to  attach  on  the 
thing  itself,  to  lay  hold  of  that  thing  in  the  manner  in  which  its  nature  per- 
mits it  to  be  laid  hold  of — that  is,  by  giving  notice  of  the  contract  to  those 
in  whom  the  legal  interest  is.  By  such  notice  the  legal  holders  are  converted 
into  trustees  for  the  new^  purchaser,  and  are  charged  with  responsibility 
towards  him;  and  the  cestui  que  trust  is  deprived  of  the  power  of  carrying 
the  same  security  repeatedly  into  the  market,  and  of  inducing  third  persons 
to  advance  money  upon  it,  under  the  erroneous  belief  that  it  continues  to 
belong  to  him  absolutely,  free  from  encumbrance,  and  that  the  trustees  are 
still  trustees  for  him,  and  for  no  one  else.  That  precaution  is  always  taken 
by  diligent  purchasers  and  encumbrances:  if  it  is  not  taken,  there  is  neglect. 
The  consequence  of  such  neglect  is,  that  the  trustee  of  the  fund  remains 
ignorant  of  any  alteration  having  taken  place  in  the  equitable  rights  aiTecting^ 
it  :  he  considers  himself  to  be  a  trustee  for  the  same  individual  as  before,  and 
no  other  person  is  known  to  him  as  the  cestui  que  trixst.  The  original  cestui 
que  tr\ist,  though  he  has  in  fact  parted  with  his  interest,  appears  to  the  world 
to  be  the  complete  equitable  owner,  and  remains  in  the  order,  management, 
and  disposition  of  the  property  as  absolutely  as  ever,  so  that  he  has  it  in  his 
])ower  to  obtain,  by  means  of  it,  a  false  and  delusive  credit.  He  may  come 
into  the  market  to  dispose  of  that  which  he  has  previously  sold;  and  how 
can  those  who  may  chance  to  deal  with  him  pi'oteet  themselves  from  his  fraud? 
Whatever  diligence  may  be  used  by  a  subsequent  encumbrancer  or  piirchaser — 
whatever  inquiries  he  may  make  in  order  to  investigate  the  title,  and  to 
.ascertain  the  exact  state  of  the  original  right  of  the  vendor,  and  his  continuing 
right — the  trustees,   who   arc  the   persons  to   whom    application    for    information 


SSo  coxcKKXixc   I'Kioi.MTiEs.  ;j  (iUT) 

aiialogons  to  possession  remains  vested  in  the  debtor,  trusti.^e, 
or  holder  of  the  fund.  The  assignor — the  creditor  or  the  cestui 
que  trust — eontiniu\s  to  be  clothed  with  all  the  apparent  right  and 
power  to  deal  with  the  claim,  and  to  dispose  of  it  to  third  persons, 
which  he  held  prior  to  the  assignment.  Courts  of  the  highest  ability 
have  therefore  regarded  such  assignments  as  occupying  a  veiy 
special  position,  and  have  applied  to  them  a  special  rule  in  deter- 
mining their  order  of  priority." 

§  694.  I.  Notice  by  the  Assignee. — The  reasons  which  prevail  be- 
tween the  assignee  and  the  debtor  or  the  holder  of  the  fund  on 
the  one  hand,  or  subsequent  assignees  on  the  other,  do  not  prevail 
between  him  and  the  assignor.  It  is  therefore  settled  that,  to  ren- 
der the  assignment  valid  and  perfect  as  against  the  assignor  hiut- 
scJf, — that  is,  to  give  the  assignee  a  complete  claim  upon  the  fund 
and  right  of  action  as  against  the  assignor, — no  notice  of  the  as- 
signment need  be  given  to  the  debtor,  trustee,  or  other  holder  of 
the  fund.^  The  same  is  true,  according  to  many  decisions,  with 
respect  to  those  who  "stand  in  the  shoes  of"  the  assignor,  name- 
ly, his  judgment  creditors,  and  mere  volunteers  under  him.- 

§  695.  English  Rule.— Priority  Determined  by  Notice  to  the 
Debtor  Party. — The  rule  is  firmly  established  in  England  that,  as 
against  subsequent  assignees  for  a  valuable  consideration,  a  notice 
to  the  debtor,  trustee,  or  holder  of  the  fund  is  necessary,  in  order 
to  perfect  the  assignment  and  render  it  valid  and  effectual.^    Among 

-would  naturally  be  made,  will  truly  and  unhesitatingly  represent  to  all  -who 
put  questions  to  them  that  the  fund  remains  the  sole  absolute  property  of  the 
])roposed  vendor.  [It  has  been  decided,  however,  that  a  trustee  is  under  no 
obligation  to  answer  the  inquiries  of  a  stranger  who  is  about  to  deal  witli  the 
cestui  que  trust:  Low  v.  Bouverie  (1891),  3  Ch.  82,  1  Scott  565].  These  incon- 
veniences and  mischiefs  are  the  natural  consequences  of  omitting  to  give 
notice  to  trustees.  To  give  notice  is  a  matter  of  no  difficulty;  and  whenever 
persons,  treating  for  a  chose  in  aciion,  do  not  give  notice  to  the  trustee  or 
executor^  who  is  the  Ipgal  holder  of  the  fund,  they  do  not  perfect  their 
title;  they  do  not  do  all  that  is  necessary  in  order  to  make  the  thing  belong 
to  them  in  pi'eference  to  all  other  persons;  and  they  become  responsible,  in 
some  respects,  for  the  easily  foreseen  consequences  of  their  negligence." 

^Methven  v.  Staten  Island  L.  H.  &  P.  Co.,  6G  Fed.  113,  13  C.  C.  A.  362, 
.3.1  U.  8.  App.  67. 

'  In   re   \\'ay's   Trusts,   2   De   Gex,   J.   &    S.    365. 

=  Farmers'  &  Merchants'  B.ank  v.  Farwoll,  58  Fed.  633,  7  C.  C.  A.  391,  19 
I'.  S.  App.  256:  Jones  v.  Lowery  Bkg.  Co.,  104  Ala.  2,52,  16  South.  11;  Walters 
V.   Washington   Ins.  Co.,   1    Iowa   404.  ()3   Am.  Dec.   451.     See,  also,  post,   §  700. 

'  This  rule  and  the  reasons  for  it  were  most  forcibly  stated  by  Sir  Thomas 
Pliimer,  M.  R.,  in  the  leading  case  of  Dearie  v.  Hall,  3  Russ.  1.  from  which 
a  quotation  has  already  been  made.  Me  said  (pp.  20-23)  :  "The  ground  of 
this  claim  is  priority  of  time.  They  rely  upon  the  known  maxim,  which  in 
many   cases    regulates   equities.   Qui    prior   est   temi)ore,    potior   est   jure.      If   by 


^  GU5  EQUJTV    .lll;LsrUL"DENCE.  32-i 

successive  assignees  of  the  same  thing-  in  action  who  have  paid  a 

llie  lii«t  contract  all  the  tliiiiy  i.s  given,  there  remains  nothing  to  be  the 
subject  of  the  second  contract,  and  priority  must  decide.  But  it  can  not  be 
contended  that  priority  in  time  must  decide,  where  the  legal  estate  is  out- 
standing. For  the  maxim,  as  an  equitable  rule,  admits  of  exception,  and  gives 
\\ay  when  the  question  does  not  lie  between  bare  and  equal  equities.  If  there 
appears  to  be,  in  respect  of  any  circumstances  indejjcndent  of  priority  of  time, 
a  better  title  in  the  subsequent  purchaser  to  call  for  the  legal  estate,  than 
in  the  jjurcliaser  who  precedes  him  in  date,  the  case  ceases  to  be  a  balance  of 
(■({ual  equities,  and  the  preference  which  priority  of  date  might  otherwise 
iiave  given  is  done  away  with  and  counteracted.  The  question  here  is,  not 
which  assignment  is  first  in  date,  but  whether  there  is  not,  on  the  part  of 
Hall,  a  better  title  to  call  for  the  legal  estate  than  Dearie  or  Sheering  can 
set  up.  Or  rather,  the  question  is:  Shall  these  plaintiffs  now  have  equitable 
relief,  to  the  injury  of  Hall?"  He  shows  that  the  failure  of  D.  or  S.  to 
give  notice  was  negligence;  from  this  negligence  all  the  doubt  and  difficulty 
have  arisen;  and  it  is  not  equitable  that  they  should  take  advantage  of  their 
own  negligence — should  obtain  a  benefit  as  the  result  of  their  neglect.  He 
llien  adds  (p.  22):  "They  say  that  they  were  not  bound  to  give  notice  to 
tlie  trustees;  for  that  notice  does  not  form  part  of  the  necessary  conveyance 
of  an  equitable  interest.  I  admit  that  if  you  mean  to  rely  on  contract  with 
the  individual,  you  do  not  need  to  give  notice;  from  tlie  monient  of  the  con- 
tract he  with  whom  you  are  dealing  is  personally  bound.  But  if  you  mean 
to  go  further,  and  to  make  your  right  attach  upon  the  thing  which  is  the 
subject  of  the  contract,  it  is  necessary  to  give  notice;  and  unless  noiice  is 
given,  you  do  not  do  that  Avhich  is  essential  in  all  cases  of  transfer  of  personal 
property.  The  law  of  England  has  always  been,  that  personal  property  passes 
by  delivery  of  possession;  and  it  is  possession  which  determines  the  apparent 
owners! lip.  If  you,  having  the  right  of  possession,  do  not  exercise  that  right, 
but  leave  another  in  actual  possession,  you  enable  that  person  to  gain  a  false 
and  delusive  credit,  and  put  it  in  his  power  to  obtain  money  from  innocent 
])arlies  on  the  hypothesis  of  his  being  the  owner  of  that  which  in  fact  belongs 
to  you.  Possession  must  follow  right;  and  if  you,  who  have  the  right,  do  not 
take  possession,  you  do  not  follow  up  the  title,  and  are  responsible  for  the 
consequences.  It  is  true  that  a  chose  in  action  does  not  admit  of  tangible, 
actual  possession.  But  in  Ryall  v.  Rowles,  1  Ves.  .Sr.  348,  1  Atk.  1(5.5,  the 
judges  held  thitt  in  the  case  of  a  chose  in  action  you  must  do  everything 
towards  having  possession  which  the  subject  admits;  you  must  do  that  which 
is  tantamouiTt  to  obtaining  possession,  by  placing  every  person  Avho  has  an 
equitable  or  legal  interest  in  the  matter  under  an  obligation  to  treat  it  as 
your  property.  For  this  purpose  you  nuist  give  notice  to  the  legal  holdcT  of 
the  fimd;  in  the  case  of  a  debt,  for  instance,  notice  to  the  debtor  is,  for  many 
pxirposes,  tantamount  to  possession.  If  you  omit  to  give  that  notice,  you 
are  guilty  of  the  same  degree  and  species  of  neglect  as  he  who  leaves  a 
personal  chattel  to  which  he  has  acquired  a  title  in  the  actual  possession 
and  under  the  absolute  control  of  another  person."  This  course  of  reasoning 
is,  as  it  seems  to  me,  completely  unanswerable;  the  special  rule  concerning 
notice  results  from  it  as  an  irresistible  conclusion.  No  other  rule  within 
the  entire  range  of  equity  jurisprudence  rests  upon  a  more  solid  foundation 
of  argument,  or  is  more  intrinsically  just  and  reasonable.  See,  also,  the  ad- 
mirable opinion  in  the  recent  case  of  in  re  Phillips'  Estate,  205  Pa.  St. 
.51.'i,    .55   Atl.    21,3,    97    Am.    St.    Rep.    74G. 


325  CONCKIIMNC.    PKIOHITIES.  ^  ')97 

valuable  consideration,  the  mere  order  of  time  does  not  necessarily 
determine  the  priority;  the  assignee  in  good  faith  and  for  value 
who  first  gives  a  notice  obtains  a  precedence  over  the  others,  even 
though  they  may  be  earlier  in  time.  The  equities  of  the  successive 
assignments  being  otherwise  equal,  the  priority  among  them  is  de- 
termined by  the  order  of  the  notices,  rather  than  by  the  order  of 
their  dates.  Giving  notice  is  regarded  as  equivalent,  or  at  least 
analogous,  to  the  act  of  taking  possession.-  The  rule  thus  formulated 
is  applied  to  assignments  of  ordinary  things  in  action  by  the  credit- 
or party  ...  to  assignments  of  a  fund  held  under  a  trust  by  the 
cestui  que  trust,  and  to  equitable  assignments  of  a  fund  by  the  per- 
son entitled  thereto,  and  the  notice  should  be  given,  in  the  iirst 
class  to  the  debtor,  in  the  second  to  the  trustee,  and  in  the  third 
to  the  holder  of  the  fund.-''  It  should  be  carefully  observed,  how- 
ever, that  to  enable  a  subsequent  assignee  to  obtain  a  priority  in 
this  manner,  by  giving  the  first  notice  to  the  debtor  or  legal  holder, 
he  must  be  an  assignee  in  good  faith  and  for  a  valuable  considera- 
tion. If  he  parted  with  no  consideration,  he  is  a  mere  volunteer, 
and  stands  in  the  same  position  as  his  assignor.  If  he  had  notice  of 
the  earlier  assignment,  then  he  took  subject  thereto.*  The  rule 
thus  established  by  the  uniform  course  of  decision  in  England 
has  been  adopted  in  a  portion  of  the  American  states."*  It  has 
been  rejected  by  the  courts  of  other  states,  which  hold  that  among 
successive  assignments  of  things  in  action  the  order  of  time  con- 
trols." 

§  697.  The  Rule  does  not  Apply  to  Assignments  of  Equitable 
Interests  in  Land.  .  .  .  Finally,  the  special  rule  requiring  a 
notice  to  the  trustee  or  other  holder  of  the  legal  title,  in  order  to 
settle  the  priority  among  successive  assignees,  is  confined  to  trans- 
fers of  personal  pi-operty,  debts,  money  claims  arising  from  con- 
tracts, funds,  and  the  like;  it  does  not  extend  to  nor  embrace  as- 
signments of  any  equitable  estates  or  interests  in  land.     These  lat- 

-  Third  Nat.  Bank  of  Philadelphia  v.  Atlantic  City,  126  Fed.  413. 

"Dearie  v.  Hall,  3  Riiss.  1;  aflirnied  on  appeal,  3  Russ.  48-00,  Amos  Trusts 
32.3.  Various  phases  of  the  rule  are  illustrated  in  In  re  Freshfield's  Trusts, 
L.  R.  11  Ch.  Div.  198,  200,  202,  per  Jessel,  M.  R. ;  Lloyd  v.  Banks,  L.  R.  3 
Ch.  488,  490,  per  Lord  Cairns;  Third  Nat.  Bank  v.  Atlantic  City,  120  Fed.  413 
(notice  of  an  intended  assignment  ineffectual;  Johnstone  v.  Cox,  L.  R.  16  Ch.  Div. 
o71    (simultaneous   notices,   etc.). 

*The   Elmbank,   72    Fed.   610. 

=^  Spain  V.  Hamilton's  Ex'r,  1  Wall.  604,  624;  Van  Buskirk  v.  Hartford,  etc.. 
Ins.  Co.,  14  Conn.  141,  144,  36  Am.  Dec.  473;  Graham  Paper  Co.  v.  Pembroke. 
124  Cal.  117,  56  Pac.  627,  71  Am.  St.  Rep.  26,  44  L.  R.  A.  632:  In  re  Phillips-n 
Estate,  20.5  Pa.   St.  .'il.5,  97  Am.  St.  Rep.  746,  5,5  Atl.  213. 

''Thayer  v.  Daniels.  113  Mass.  120:  Muir  v.  Schenck.  3  Hill  228,  Sh.  106, 
38  Am.  Dec.  6:53;   IMeicr  v.  Hess,  23  Or.   599,  32  Pac.  755. 


§  Gl)i)  EQUITY   JLKlsritUDEXCl:;.  326 

ter  are  governed  by  the  more  general  rules  concerning  priority, 
already  stated.^ 

§  698.  II.  Diligence  of  the  Assignee. — Irrespective  of  any  re- 
quirement to  give  notice  in  order  to  obtain  a  priority,  the  duty 
rests  upon  all  assignees  of  things  in  action  to  use  reasonable  dili- 
gence in  perfecting  their  titles  or  enforcing  their  rights.  Even 
where  the  rule  concerning  notice  to  the  debtor  or  trustee  has  not 
been  adopted,  an  assignee  who  had  otherwise  the  priority  may 
lose  it  through  his  laches,  as  against  a  subsequent  purchaser  in 
good  faith  and  for  value  Avho  has  been  injured  by  the  negligence.^ 
It  may  be  said,  in  general,  that,  in  order  to  protect  himself  against 
subsequent  transfer  b}'  the  assignor,  where  a  notice  is  not  given  to 
the  debtor  or  the  holder  of  the  legal  interest,  the  assignee  should 
obtain  a  delivery  and  possession  of  the  written  instrument,  which, 
in  ordinary  language,  constitutes  the  thing  in  action,  which  em- 
bodies and  is  the  highest  evidence  of  the  existing  demand ;  or  when 
such  delivery  and  possession  are  impossible  from  the  very  nature  of 
the  subject-matter,  that  he  should  take  all  the  steps  permitted  by 
the  law  which  are  equivalent  to  actual  possession.-  The  questions 
as  to  priority  of  right  may  arise  between  the  assignee  and  a  judg- 
ment creditor  of  the  assignor  or  a  subsequent  purchaser  from  the 
jissignor.  There  is  a  clear  distinction  between  these  two  claimants, 
since  a  judgment  creditor  only  suceeds  to  the  rights  of  his  debtor, 
while  a  purchaser  ruay  acquire  higher  rights.^ 

^  699.  Assignment  of  Shares  of  Stock — Between  Assignee  and 
Assignor. — The  question  has  very  frequently  arisen  in  this  country 
ii!  connection  with  transfers  of  shares  of  stock  in  business  corpora- 
1i(Mis.  The  by-laws  of  such  companies  generally,  and  even  in  some 
states  the  statutes,  provide  that  an  assignment  of  shares  shall  be 
consummated  and  perfected  by  the  assignee's  surrendering  the  ori- 
giiuil  certificate  to  the  proper  officers  of  the  corporation,  and  re- 

>See  Lee  v.  Hewlett,  2  Kay  &  .1.  .5,31,  Ames  Trusts  329:  McCreight  v.  Foster, 
1..  R.  5  Ch.  604,  610,  611  (contract  for  sale  of  land)  ;  Union  Bk.  of  London 
V.  Kent,  30  Ch.  Div.  238  (leaseholds).  But  priority  among  assignments  of  an 
interest  in  land  aflected  by  the  doctrine  of  equitable  conversion  is  determined 
by  the  rules  relating  to  the  assignment  of  clioses  in  action:  Snover  v.  Squire, 
(N.   .T.   Eq.),   24  Atl.  365. 

'  .ludson  V.  Corcoran,  17  How.  612. 

=  Bridge  v.  Wheeler,  152  Mass.  343.  25  X.  E.  612:  Graham  Paper  Co.  v. 
Pembroke,  124  Cal.  117,  56  Pae.  627.  71  Am.  St.  Rep.  26,  44  L.  R.  A.  632. 
On  the  same  principle,  if  between  two  successive  assignees  of  an  equitable 
interest,  otherwise  equal,  the  subsequent  one  acquires  the  legal  title  or  legal 
advantage,  he  thereby  obtains  the  superiority:  Ogden  v.  Fitzsimmons.  7  Cranch 
1,  18;  Dueber  Watch-Case  Mfg.  Co.  v.  Daugherty.  62  Oliio  St.  580.  57  X.  E.  455. 

'  As  to  judgment  creditors  of  the  assignor,  see  ante,  §  694,  and  notes,  and 
post,  §  700. 


o-ij  CONCLRXINCi    ri;ioi;iTiES.  ^  ^'>1 

ceiving  a  new  one  issued  to  himself,  and  by  a  record  of  the  trans- 
action entered  in  the  company's  transfer-books.  It  is  the  common 
practice,  however,  to  efit'ect  an  assignment  by  delivering-  the  certi- 
ficate to  the  assignee,  with  a  power  of  attorney  indorsed  thereon 
executed  by  the  assignor,  authorizing  the  surrender  to  be  made  and 
all  the  other  steps  to  be  taken  as  prescribed  by  the  by-laws.  This 
method  of  transfer,  according  to  the  overwhelming  weight  of 
authority,  clothes  the  assignee  with  a  full  legal  ownership  as  against 
the  assignor,  and  with  an  equitably  title  and  ownership  valid  at 
least  as  against  the  corporation.^  The  only  important  questions. 
therefore,  relate  to  the  right  and  priority  of  such  an  assignee  as 
against  judgment  creditors  of  the  assignor  and  subsequent  pur- 
chasers. 

§  700.  The  Same — Between  Assignee  and  Judgment  Creditors  of 
Assignor. — It  has  been  held  by  some  courts  that  such  a  transfer  of 
shares  by  a  mere  delivery  of  the  certificate  and  power  of  attorne.y, 
without  the  further  steps  for  completing  the  transaction  on  the 
transfer-books,  and  irithoitt  ciuy  notice  thereof  given  to  the  compani/, 
is  presumptively  fraudulent,  and  therefore  invalid  as  against  judg- 
ment creditors  of  the  assignor.^  A  different  rule,  however,  must 
be  regarded  as  settled  by  the  great  majority  of  decisions,  which 
bold  that  this  mode  of  assignment  is  valid  as  against  creditors  of 
Ihe  assignor,  and  gives  the  assignee  a  precedence  over  their  sub- 
sequent judgments,  executions,  and  attachments." 

§  701.  The  Same — Betvreen  Assignee  and  Subsequent  Purchas- 
ers.— -As  between  such  an  assignee  and  subsequent  purchasers,  the 
question  is  more  complicated.  I  think  that  general  language  has 
sometimes  been  used  by  judges,  which  indicates  a  confusion  of 
mind  with  reference  to  the  real  situation  of  the  parties,  and  the 
pcssible  circumstances  which  might  arise  in  the  transaction.  If  the 
bolder  of  shares  should  deliver  the  certificate  with  a  power  of  at- 
torney executed  by  himself,  it  would  be  impossible  for  him  to  clothe 
a  subsequent  assignee  with  the  same  indicia  of  ownership,  so  that 
the  latter  should  have  a  title  apparently  equal  to  the  former.     On 

'X.  Y..  X.  H.  &-  H.  R.  Pv.  V.  Sclnuier,  34  N.  Y.  30.  80.  per  Davis.  .T. ; 
;Mt.  Holly  Co.  V.  Ferree,  17  N.  -7.  Eq.  117;  Masury  v.  Arkansas  Nat.  Bank, 
f)3  Fed.  003.  35  C.  C.  A.  476,  revorsinor  87  Fed.  38. 

^Pinkerton  v.  INIanchester,  etc..  R.  R..  42  N.  H.  424.  This  protection  of  tlio 
judofment  and  attacliment  creditors  of  the  assignor  results  from  statute  in  many 
states.  White  v.  Rankin.  tlO  Ala.  .541.  8  South.  118:  Ottumwa  Screen  Co.  v. 
NtodfThill,  103  Iowa  437.  72  X.  W.  W^^.):  West  Coast  S.  F.  (^o.  v.  WulfT.  133 
Cal.  315,  85  Am.  St.  Rep.  171.  05  Pac.  022. 

-See  ante,  §094;  Mt.  Holly  Co.  v.  Ferree.  17  N.  .7.  Eq.  117;  May  v.  Cleland. 
117  Mich.  45.  75  N.  W.  120.  44  L.  R.  A.  103;  Port  Townsend  Nat.  Bank  v. 
Port  Townsend  (Jas  &  Fuel  Co.,  0  Wasli.  507.  34   I'nc.   155. 


§  ^U3  EQUITY   JURISPRUDENCE.  328 

the  other  hand,  if  the  holder  of  shares  should  assign  them  verbal I3* 
or  by  a  written  instrument  to  A,  but  without  delivering  the  certi- 
ficate and  power  of  attorney,  and  should  afterwards  assign  them 
in  the  ordinary  manner,  by  delivering  the  certificate  with  a  poAver 
of  attorney  to  B,  the  apparent  title  of  the  latter  would  certainly 
be  superior  to  that  of  the  former.^  It  does  not  seem  possible,  there- 
fore, that  a  question  of  priority,  on  the  assumption  that  their  equit- 
able interests  are  intrinsically  equal,  can  arise  between  two  succes- 
sive assignees  of  the  same  shares  from  the  same  OAvner,  where  the 
assignment  to  one  of  them  has  been  by  a  delivery  of  the  certificate 
with  a  power  of  attorney.  The  questions  of  precedence  among  suc- 
cessive transfers  executed  in  such  a  manner  must  arise  in  cases 
where  the  earlier  assignment,  apparently  made  by  and  in  the  name 
of  the  owner,  is  procured  through  fraud,  breach  of  trust,  or  even 
forgery.  The  discussion  of  this  particular  topic  properly  belongs, 
and  will  be  found,  in  the  next  subdivision,  Avhich  treats  of  the 
equities  to  which  assignments  of  things  in  action  are  subject. - 

§  702.  Notice  to  the  Debtor  Necessary  to  Prevent  Subsequent 
Acts  by  Him. — Diligence  is  also  necessary  on  the  part  of  the  as- 
signee, in  order  to  protect  his  right,  by  giving  prompt  notice  of  the 
transfer  to  the  debtor,  trustee,  or  other  holder  of  the  fund.  Until 
notice,  actual  or  constructive,  is  received  by  the  debtor  or  trustee, 
payment  by  him  to  the  assignor  would  be  a  valid  payment  of  the 
clnim,  and  binding  upon  the  assignee.  The  same  would  be  true  of 
a  release  from  the  assignor  to  the  debtor  or  trustee,  or  any  other 
transaction  between  them  which  Avould  operate  as  a  legal  dis- 
charge; it  would  also  be  a  discharge  as  against  the  assignee,  if 
done  before  notice.^  It  is  expressly  provided  in  many  of  the  states 
that  a  demand  in  favor  of  the  debtor,  Avhich  might  be  a  set-ot¥ 
against  the  assignor,  not  existing  at  the  date  of  the  assignment,  but 
arising  subsequent]}^,  and  before  notice  to  the  debtor,  shall  be  a  valid 
set-oft'  against  the  assignee. 

§  703.  III.  Assignments  of  Things  in  Action  Subject  to  Equi- 
ties.— The  doctrine,  stated  in  its  most  comprehensive  form,  is,  that 
an  assignment  of  every  non-negotiable  thing  in  action,  even  when 
made  without  notice  of  the  defect  to  the  assignee,  is  subject,  in 
general,  to  all  equities  existing  against  the  assignor.  This  broad 
doctrine  has  three  different  applications:  1.  Where  the  equities 
are  in  favor  of  the  debtor  or  trustee ;    2.  Where  they  arise  between 

'See   Societe  Genernle  de  Paris  v.   Walker,   L.   E.    11    Ap]).   Cas.   20.  affiniiing 

14  Q.  B.  D.  424. 

"See  infra,   §§707-715.  , 

^  James   v.   Morey,  2   Coav.   24G,    14   Am.   Dee.   47;};    Muir   v.   Schenck,   3   Hill 

228,  38  Am.  Dec.  G33,  Shi  106;  Bence  v.  Shearman   (1898),  2  Ch.  582. 


^2d  COXCKHXIXC    I'lMOKM  TIKS.  §  "(14 

successive  assignors  and  assignees, — that  is,  in  favor  of  some  prior 
assignor;  3.  Where  they  ai-ise  entirely  in  favor  of  third  persons. — 
the  two  latter  cases  including  what  are  often  caUed  laleiit  equities. 
As  these  three  applications  depend  upon  somewhat  different  grounds, 
and  as  there  is  not  a  perfect  harmony  of  decision  concerning  them, 
it  will  be  expedient  to  discuss  them  separately,  and  thus  to  avoid 
all  unnecessary  doubt  with  respect  to  the  settled  rules. 

^  704.  1.  Equities  in  Favor  of  the  Debtor  Party. — The  rule  is 
settled,  by  an  unbroken  series  of  authorities,  that  the  assignee  of  a 
thing  in  action  not  negotiable  takes  the  interest  assigned  subject  to 
all  the  defenses,  legal  and  equitable,  of  the  debtor  who  issued  the 
obligation,  or  of  the  trustee  or  other  party  upon  whom  the  obliga- 
tion originally  rested;  that  is,  when  the  original  debtor  or  trustee,  in 
whatever  form  his  promise  or  obligation  is  made,  if  it  is  not  nego- 
tiable, is  sued  by  the  assignee,  the  defenses,  legal  and  equitabh". 
which  he  had  at  the  time  of  the  assignment,  or  at  the  time  Avhen 
notice  of  it  was  given,  against  the  original  creditor,  avail  to  him 
against  the  substituted  creditor.^  This  rnl^  applies  to  all  forms  of 
contract  not  negotiable,  and  to  all  defenses  which  would  have  been 
valid  between  the  debtor  party  and  the  original  creditor.  These 
defenses  may  arise  out  of  or  be  inherent  in  the  very  terms  or  nature 
of  the  obligation  itself,  as  that  it  was  conditional  and  the  condition 
has  not  been  performed  by  the  assignor,  failure  or  illegality  of  the 
consideration,  and  the  like;  or  they  may  exist  outside  of  the  c(ni- 
tract,  as  set-oft',  payment,  release,  the  condition  of  accounts  between 
the.  original  i^arties,  and  the  like.    Some  examples  are  given  in  the 

Tailanan  v.  Edwards.  32  X.  Y.  483.  48G :  Haydon  v.  Xicoletti,   18  Nev.  290, 

3  I'ac.  473.  Upon  the  question  whether  the  doctrine  stated  in  the  text  applies 
to  mortgages  given  to  secure  negotiable  promissory  notes — a  form  of  security 
YPiy  common  in  some  states — the  authorities  are  in  direct  conflict.  In  one 
class  of  decisions  it  has  been  held  that  where  a  mortgage  is  given  to  secure  a 
negotiable  promissory  note  and  before  maturity  of  the  note  it  and  the  mortgage 
are  assigned  to  a  bona  fide  purchaser  for  value,  the  assignment  of  the  mortgage 
as  well  as  of  the  note  is  free  from  all  equities  subsisting  between  the  original 
parties  in  favor  of  the  mortgagor:  Carpenter  v.  Longan,  16  Wall.  271.  273; 
Lewis  V.  Kirk,  28  Kan.  497.  42  Am.  Rep.   173;   Nashville  Trust  Co.  v.  Smythe. 

04  Tenn.  513,  45  Am.  St.  Rep.  748,  29  S.  W.  903.  Other  eases  reach  exactly 
the  opposite  conclusion,  and  hold  that  the  assignment  of  such  a  mortgage  is 
governed  by  the  general  rule:  Baily  v.  Smith,  14  Ohio  St.  396,  84  Am.  Dec. 
385:  Olds  v.  Cummings.  31  111.  188;  Rnehler  v.  McCormick.  169  111.  269.  48 
N.  E.  287.  The  reasoning  of  these  Illinois  decisions  is.  in  my  opinion,  most 
in  accordance  with  the  settled  doctrines  of  equity  jurispnidence.  namely,  that  the 
assisfnment  of  the  mortgage,  whether  it  be  an  incident  of  the  transfer  of  the  note, 
or  be  direct,  is  wholly  equitable,  and  gives  only  an  equilable  title  to  the  assignee,, 
and  must  therefore  be  subject  to  all  subsisting  equities;  the  doctrine  of  bona 
fide  purchase  for  a  valuable  consideration  not  applying  to  transfers  of  mere 
equitable  interests.    See,  also,  post^  §  1210. 


J;  '107'  EQUITY    jriilSPKlDKXCK.  330 

foot-note,  by  way  of  illustration.-  It  is  essential,  however,  that  the 
equity  in  favor  of  the  debtor  should  exist  at  the  time  of  the  assign- 
ment or  before  notice  thereof;  after  receiving  notice,  he  cannot,  by 
a  payment,  release,  obtaining  a  set-off,  or  any  other  act.  defeat  or 
prejudice  the  right  of  the  assignee.^  The  debtor  who  would  have 
been  entitled  to  equities  under  this  rule  may,  by  a  writing,  or  by 
actual  misrepresentations,  or  by  conduct,  or  even  by  silence  towards 
the  assignee,  estop  himself  from  setting  them  up,  and  he  may  re- 
lease them.* 

§  707.  2.  Equities  betw^een  Successive  Assignors  and  Assignees. 
— The  doctrine  is  not  confined  to  the  case  of  the  debtor  party  set- 
ting up  a  defense  against  an  assignee :  it  also  applies,  when  the 
same  non-negotiable  thing  in  action  has  gone  through  successive 
assignments,  to  the  second  and  subsequent  assignees,  if  there  were, 
equities  subsisting  between  the  original  assignor — or  any  prior  as- 
signor— and  his  immediate  assignee  in  favor  of  the  former.  The 
instances  of  this  application  include  the  following,  among  other 
circumstances:  When  tjie  owner  transfers  the  thing  in  action  upon 
( ondition,  or  subject  to  any  reservations,  and  this  immediate  as- 
.'^ignee  transfers  it  absolutelj':  when  the  first  assignment  is  accom- 
plished by  a  forgery  of  the  owner's  name,  and  this  assignee  after- 
Avards  transfers  to  an  innocent  purchaser  for  value;  when  the  ori- 
ginal assignment  is  procured  by  fraud,  duress,  or  undue  influence^ 
and  a  second  assignment  is  then  made  to  a  purchaser  for  value  and 
v^  ithout  notice :  when  the  original  assignment  is  regular  on  its  face, 
executed  in  the  name  of  the  OAvner  and  by  means  of  his  signature 
voluntarily  written,  but  the  transfer  is  consummated  through  a 
breach  of  fiduciary  dut}-   by  an   agent   or  bailee   contrary-   to  the 

"Of  the  Kinds  of  Con t met. — Non-negotiable  note:  Spinning  v.  Sullivan,  4S 
-Mich.  3,  11  N.  W.  758.  Mortgages:  see  post,  §733.  Contract  for  the  sale  of 
land:  Reeves  v.  Kimball.  40  N.  Y.  299.  Shares  and  obligations  of  corporations: 
Ji)  re  China  Steamship  Co.,  L.  R.  7  Eq.  240;  Reese  v.  Bank  of  Commerce, 
14  Md.  271,  74  Am.  Dec.  536:  Jennings  v.  Bank  of  California,  79  Cal.  323, 
21   Fac.  852,  12  Am.  St.  Rep.  145,  5  L.  R.  A.  233. 

Of  Defenses. — E.  g..  Illegality;  Robertson  v.  Cooper,  1  Ind.  App.  78.  27 
N.  E.  104.  Set  off  in  debtor's  favor:  Collins  v.  Campbell,  97  :\Ie.  23,  28.  .53 
Atl.  837,  94  Am.  St.  Rep.  458,  463.  Non-performance  of  contract  by  assignor: 
Van  Aken  v.  Dunn,  117  Mich.  421,  75  N.  W.  938.  The  assignee  cannot  be 
affected,  however,  by  collateral  transactions,  secret  trusts,  or  acts  uneomiected 
witli  file  subject  of  the  contract:  Kountz  v.  Kirkpatrick.  77  Pa.  St.  376,  13 
Am.   Rep.   687. 

^Schelling  v.  Ahillen,  55  Minn.  122.  56  N.  W.  586.  ^3  Am.  St.  Rep.  475: 
Field  v.  City  of  New  York,  6  N.  Y.   (2  Seld.)    179,  57  Am.  Dec.  435. 

Mn  re  Northern,  etc.,  Co.,  L.  R.  10  V.c[.  458,  4fi3 :  Crissler  v.  Powers.  81 
X.  Y.  57.  37  Am.  Rep.  475.  But  see  Rapps  v.  (Gottlieb,  142  N.  Y.  164.  3ff 
N.  E.   1052,  affirming  67  Hun,  115,  22  N.  Y.  Supp.  .52. 


3;U  COXCKHXINCi    rKlOHlTlES.  r;  'i')'"^ 

t)\vner's  intention,  Cn{\  this  immediate  assi.Ernee  transfers  to  an  in- 
nocent holder;  and  finally,  when  the   orioinal    owner  assigns  the 
same  thinti'  in  aetion  for  value  and  without  notice,  first  to  A  and 
afterwards  to  B,  and  the  controversy  is  between  these  two  claim- 
ants,   or    between    subsequent    assignees    from    and    deriving    title 
tiirough  them.     The  decisions  involving  the  doctrine,  in  its  applica- 
tion to  these  various  circumstances,  are  directly  conflicting.     While 
a  complete  reconciliation  of  this   conflict  is  impossible,  there   are 
considerations  which  will  bring  the  authorities  into  a  partial  har- 
mony.    The  rule  which  makes  the  right  of  a  subseciuent  assignet^ 
subject  to  the  equities  subsisting  in  favor  of  the  original  or  any 
l)rior  assignor  is  plainly  a  mere  expression  of  the  general  principle, 
that  among  successive   equitable  interests  in  the  same  thing,  the 
order  of  time  prevails.     The  decisions  which  uphold  the  equities 
of  the  prior  assignor  are  either  expressly  or  impliedly  based  upon 
this  principle.     But  the  principle  itself  is  not  al)solute;  it  prevails 
only  where  the  successive  equitable  interests  are  equal :  indeed,  the 
equity  resulting  merely  from  priority  in  time  has  been  said  to  be 
the  feeblest  of  any,  and  to  be  resorted  to  only  when  there  is  no  other 
feature  or  incident  of  superiority.^     Whatever  creates  a  superior 
equity  in  one  of  the  successive  holders  will   disturb  the  order  of 
lime,  and  many  different  features  or  incidents  will  have  this  effect. 
The  laches  of  one  having  an  interest  prior  in  time  may  confer  a 
superior  equity  upon  a  subsequent  holder;  notice  may  destroy   a 
precedence  otherwise  existing;  absence  of  a  valuable  consideration 
is  always  a  badge  of  inferiority;  and  finally,  the  doctrine  of  estop- 
}iel  nu\v  be  properly  invoked  to  prevent  a  prior  party  from  assert- 
ing his  right.     In  many  of  the  cases  which  appear  to  deny  the  doc- 
trine that  a  subsequent  assignee  takes  subject  to  the  e(|uities  of  a 
prior  assignor  or  of  a  third  person,  the  decision  is  in  fact  rested 
upon  one  or  the  other  of  these  well-settled  exceptions  to  the  general 
i^rinciple  of  priority  in  order  of  time  among  successive   equitable 
interests,  although  the  opinion  may  not  perhaps  state  such  a  ground 
as  the  ratio  decidendi.     It  is  possible,  in  this  manner,  to  effect  a 
partial  reconcilement  among  the  authorities;  some  conflict  of  opin- 
i(.n,  hoAvever,  still  remains. 

§  708.  General  Rule — Assignment  Subject  to  Latent  Equities. — 
The  equities  of  a  prior  assignor,  or  of  a  third  i)ers()n,  have  some- 
times been  called  "latent."  The  theory  that  such  "latent  equities" 
cannot  prevail  against  the  title  of  a  second  or  other  subsequent  as- 

'  See  supra,  vol.  1.  §  414,  and  tiie  ophiion  in  Rice  v.  Rice,  2  Drew.  73,  H.  «S:  B. 
23.  1  Scott  334.  tliore  qudted.  This  description  of  the  ricrht  resulting  from 
a.  ]ni(irity  in  time  is,  in  my  n])iiii(in.  nnich  too  strong;  jl  can  hardly  be  rec- 
onciled  with  the  imposing  line  of  authorities  cited   in  the  following  paragraphs. 


§  lUO  EQUITY    JLin^^l'HLUKNCE.  o3"^ 

signee,  and  that  an  assignee  only  takes  subject  to  the  equities  in 
favor  of  the  debtor  party,  has  I'eceived  some  judicial  support/  It 
is,  however,  unsound;  it  is,  in  effect,  an  extension  of  the  peculiar 
qualities  of  negotiable  instruments  to  things  in  action  not  nego- 
tiable.- The  doctrine  is  sustained  by  the  Aveight  of  authority,  I 
think,  and  by  principle,  that  the  right  of  the  second  or  other  sub- 
sequent assignee  is  subject  to  all  equities  subsisting  in  favor  of  tlie 
original  or  otlier  prior  assignor,  unless  in  some  settled  mode  recognized 
by  equity  jurisprudence  such  assignee  has  obtained  a  superiority 
v'hich  gives  him  the  precedence.  This  doctrine  must  be  regarded 
as  correct,  as  based  upon  principle,  as  long  as  the  distinction  be- 
tween negotiable  and  non-negotiable  obligations  is  preserved  in  our 
jurisprudence."  I  shall  describe, — 1.  Those  classes  of  cases  in  which 
the  doctrine  has  been  applied;  and  2.  Those  in  which  it  is  not  ap- 
plicable. 

§  709.  Illustration  of  This  Rule. — If  the  owner  and  holder  of  a 
thing  in  action  not  negotiable  transfers  it  to  an  assignee  upon  con- 
dition, or  subject  to  any  reservations  or  claims  in  favor  of  the  as- 
signor, although  the  instrument  of  assignment  be  absolute  on  its 
face,  this  immediate  assignee,  holding  a  qualified  and  limited  in- 
terest, cannot  convey  a  greater  property  than  he  himself  holds: 
ajid  if  he  assumes  to  convey  it  to  a  second  assignee  by  a  transfer 
al)solute  in  form,  and  for  a  full  consideration,  and  without  any 
notice  to  such  purchaser  of  a  defect  m  the  title,  this  second  assignee 
takes  it,  nevertheless,  subject  to  all  the  equities.,  claims,  and  rights 
of  the  original  holder  and  first  assignor.'  In  the  second  place,  where 
the  original  assignment  is  accomplished  by  a  forgery  of  the  holder's 
name,  or  where  it  is  effected  by  a  wrongful  ccmversion  of  the  se- 
curity, together  with  a  written  instrument  of  transfer  which  has 
been  signed  by  the  owner,  or  where  it  is  made  upon  an  illegal  con- 
sideration between  the  owner  and  his  immediate  assignee,  or  where 
it  is  procured  by  fraud,  duress,  or  undue  influence  upon  the  owner, 
and  in  either  of  these  cases  the  thing  in  action  is  afterwards  trans- 


^  See  cases  infra,  under  §  715. 

MVestern  Nat.  Bank  v.  Maverick  Nat.  Bank,  90  Ga.  3.30.  16  S.  E.  942,  .35 
Am.  a.  Rep.  210. 

-' Scliafer  v.  Reilly,  50  N.  Y.  61.  67;  Coniiiieroial  Nat.  Bank  v.  Burch,  141 
111.  519,  31  N.  E.  420,  33  Am.  fSt.  Rep.  331;  Patterson  v.  Rabb,  38  S.  C.  138, 
17  S.  E.  463,  19  L.  R.  A.  831;  and  see  cases  cited  under  §  709. 

'Bush  V.  Lathrop,  22  N.  Y.  535:  Davis  v.  Hechstein,  69  N.  Y'.  440,  25  Am. 
Rep.  218:  Osborn  v.  McClelland.  43  Ohio  St.  284.  299-307,  1  N.  E.  644. 
Cases  of  lost  or  stolen  stock  certificates:  Knox  v.  Eden  ^lusee  Co..  148  N.  Y. 
441,  51  Am.  8t.  Rep.  700,  42  N.  E.  988.  31  L.  R.  A.  779;  East  Birminjrham 
Land  Co.  v.  Denison.  85  Ala.  565.  5  South.  317.  7  Am.  St.  Rep.  73,  2  L.  R.  A. 
836;    Barstow  v.   Savage  Min.   Co.,  64  Cal.   388,  49  Am.  Rep.   705,   1   Pae.   349, 


;333  COXCEILNIXG     rUlOlUTlKS.  "  §11" 

ferred  from  the  tii\st  to  a  second  or  other  subsequent  assignee,  wlio 
takes  it  for  value  and  without  notice,  the  same  rule  must  control: 
the  equities  of  the  original  owner  must  prevail  over  the  claims  of 
the  subsequent  though  iniioceut  assignee. - 

jj  710.  When  the  Rule  does  not  Apply — Effect  of  Estoppel.— I 
proceed  next  to  consider  the  third  case,  where  the  original  assign- 
ment is  regular  on  its  face,  executed  in  the  name  of  the  original 
owner  and  by  his  signature  voluntarily  written,  but  the  transfer  is 
consummated  through  a  breach  of  fiduciary  duty  by  an  agent  or 
bailee  contrary  to  the  owner's  intention,  and  this  immediate  as- 
signee may  afterwards  transfer  to  an  innocent  holder.  In  relation 
to  this  particular  condition  of  facts,  a  rule  has  been  adopted  by 
most  able  courts,  and  may  be  regarded,  I  think,  as  settled,  Avhich 
is  entirely  consistent  with  that  stated  in  the  preceding  paragraphs. 
It  is  based  upon  the  doctrine  of  estoppel.  This  special  rule  may  be 
formulated  as  folloAVs:  The  owner  of  certain  kinds  of  things  in 
action  not  technically  negotiable,  but  wdiich,  in  the  course  of  busi- 
ness customs,  have  acciuired  a  semi-negotiable  character  in  fact. 
may  assign  or  part  wnth  them  for  a  special  purpose,  and  at  the 
same  time  may  clothe  the  assignee  or  person  to  whom  they  have 
been  delivered  with  such  apparent  indicia  of  title,  and  instruments 
of  complete  owmership  over  them,  and  power  to  dispose  of  them, 
as  to  estop  himself  from  setting-  up  against  a  second  assignee,  to 
W'hom  the  securities  have  been  transferred  without  notice  and  for 
value,  the  fact  that  the  title  of  the  first  assignee  or  holder  w'as  not 
perfect  and  absolute.  The  ordinary  and  most  important  application 
of  this  rule  is  confined  to  the  customary  mode  of  dealing  with  cer- 
tificates of  stock.  If  the  OAvner  of  stock  certificates  assigns  them  as 
collateral  security,  or  pledges  them,  or  puts  them  into  the  hands  of 
another  for  any  purpose,  and  accompanies  the  delivery  by  a  blank 
assignment  and  power  of  attorney  to  transfer  the  same  in  the  usual 
form,  signed  by  himself,  and  this  assignee  or  pledgee  wrongfully 
transfers  them  to  an  innocent  purchaser  for  value  in  the  regular 
course  of  business,  such  original  owmer  is  estopped  from  asserting, 
as  against  this  purchaser  in  good  faith,  his  own  higher  title  and  the 
want  of  actual  title  and  authority  in  his  own  immediate  assignee 
or  bailee.*  This  conclusion  is  in  no  respect  necessarilj'  antagonistic 
to  the  general  doctrine  concerning  the  assignment  of  things  in  ac- 
tion  heretofore   stated.     The   courts   have   simply   recognized   the 

-  Anderson  v.  Nicholas,  28  X.  Y.  GOO :  :\Iason  v.  Lord,  40  N.  Y.  476,  487. 

^McNeil  V.  Tenth  Nat.  Hank.  40  N.  Y.  .32,5,  7  Am.  Rep.  341;  Dueber  Watch- 
Case  Mfg.  Co.  v.  Danrrlierty.  02  Oliio  St.  oSO.  Tu  N.  E.  4.").'):  Moore  v.  Moore, 
112  tnd.  149.  13  N.  E.  073,  2  Am.  St.  Rep.  170;  Osborn  v.  McClelland,  43  Ohio 
St.  284,  298-307,   1   N.  E.   044. 


§  711  EQUITY    JLinSritUDEXCE.  33-1 

growing  and  universal  tendency  of  business  men,  in  their  customary 
modes  of  dealing,  to  treat  stock  certificates  as  though  they  were 
in  all  respects  negotiable  instruments;  and  they  have  felt  themselves 
bound  to  give  validity  and  effect  to  this  general  practice  of  merch- 
ants, as  far  as  that  could  be  done  consistently  with  the  established 
doctrines  of  the  law.  It  is  another  instance  of  the  manner  in  which 
mercantile  customs  have  been  adopted  and  incorporated  into  the 
h'.w  by  the  progressive  course  of  judicial  legislation.  The  decisions 
announcing  the  rule  are  based  exclusively  upon  the  form  of  the 
blank  assignment  and  power  of  attorney,  executed  by  the  assignor 
and  delivered  to  the  assignee,  which  clothed  him  with  all  the  apparent 
rights  of  ownership  that  are  recognized  by  business  men,  in  their 
usual  course  of  dealing  with  like  securities,  as  sufficient  to  confer 
a  complete  title  and  power  of  disposition  upon  the  assignee.  Should 
the  doctrine  thus  invoked  to  protect  the  customary  modes  of  trans- 
acting business  with  certificates  of  stock  and  similar  quasi  nego- 
tiable securities  be  extended  to  all  other  things  in  action?  Should 
the  effect  of  an  estoppel  be  produced  from  a  mere  assignment  of  (unj 
security,  ahsolnte  on  its  face,  executed  hy  tlie  original  owner,  and  deliv- 
ered to  his  assignee?  There  are  cases  which  seem  to  have  reached 
this  result.  The  tendency  of  these  decisions  is  towards  the  conclu- 
sion that  whenever  the  OM^ier  of  any  non-negotiable  thing  in  action 
delivers  the  same  to  another  person  with  an  assignment  thereof 
absolute  on  its  face,  and  this  person  transfers  it  to  a  purchaser 
for  value,  who  relies  upon  the  apparent  ownership  created  by  the 
written  assignment,  and  has  no  notice  of  anything  limiting  that 
title,  the  original  owner  is  estopped  from  asserting  against  such 
purchaser  any  equities  existing  between  himself  and  his  immediate 
assignee,  and  any  interest  or  property  in  the  security  which  he  may 
have  notwithstanding  the  written  transfer,  even  when  those  equities 
might  arise  from  fraud,  coercion,  violation  of  a  fiduciary  duty,  ab- 
sence or  illegality  of  consideration,  and  the  like.- 

§  711.  True  Limits  of  Estoppel  as  Applied  to  Assignments  of 
Things  in  Action. — While  the  particular  application  of  the  doctrine 
of  estoppel  to  the  usual  dealings  with  shares  of  stock,  as  made  in 
McNeil  V.  Tenth  National  Bank^  and  kindred  cases,  is  clearly  a 
step  in  the  interests  of  commerce,  since  it  recognizes  and  validates 
mercantile  customs  which  had  become  universal  throughout  this 
c©untry,  the  extension  of  the  same  rule  to  all  things  in  action,  as 
described  in  the  preceding  paragraph,  ])hiinly  tends  to  undermine, 
shake,  and  finally  abrogate  the  well-settled  doctrine  which  renders 
the  assignments  of  non-negotiable  things  in   action  subject  to  the 

-Moore  v.  Metropolitan  Bank,  5,'>  N.  Y.  41,  46-49,  14  Am.  Rep.  173. 
M6   N.   Y.   325:    7   Am.   Rep.   341. 


335  coxcKUMXci    ruioKiTiKS.  §  712 

e<{uities  subsisting  in  favor  of  the  debtor  parties,  as  well  as  those 
outstanding  in  favor  of  third  persons;  or  at  all  events,  it  tends  to 
confine  the  operation  of  that  doctrine  to  cases  in  which  the  assign- 
ment is  so  drawn  that  it  is,  on  its  face,  constructive  notice  to  all 
subsequent  assignees  deriving  title  through  it.  In  the  class  of  deci- 
sions alluded  to, — Moore  v.  IMetropolitan  Bank-  and  like  cases, — 
the  estoppel  is  made  to  arise  from  a  mere  naked  transfer  in  writing, 
absolute  in  form;  the  ratio  decidendi  is  the  apparent  ownership 
thus  conferred  upon  the  assignee;  and  these  elements  of  the  rule 
will  apply  to  so  many  cases  that  things  in  action  are  practically 
rendered  negotiable  as  between  the  series  of  successive  holders, — 
the  assignors  and  assignees.  This  point  being  reached,  it  wiil  be 
an  easy  and  almost  necessary  step  to  extend  the  estoppel  to  the 
debtor  party  himself, — the  obligor  or  promisor  who  utters  the  se- 
curity. If  negotiability  is  produced  by  means  of  an  estoppel  be- 
tween the  assignor  and  assignee,  arising  from  the  fact  and  form  of 
a  transfer  from  one  to  another,  by  parity  of  reasoning  the  debtor 
may  be  regarded  as  estopped  by  the  fact  and  form  of  his  issuing  the 
undertaking  and  delivering  it  to  tlie  first  holder,  and  thus  creating  an 
apparent  liability  against  himself.  In  short,  there  seems  to  be  exact- 
ly the  same  reason  for  holding  the  debtor  estopped  from  denying 
his  liability  upon  a  written  instrument  which  apparently  creates 
an  absolute  liability,  when  that  instrument  has  passed  into  the 
hands  of  a  purchaser  who  had  no  notice  of  the  actual  relations 
between  the  original  parties,  as  for  holding  an  assignor  estopped 
from  denying  the  completeness  of  a  transfer  made  by  him  simply 
because  it  is  absolute  on  its  face.  This  result,  if  reached,  would 
make  all  things  in  action  practically  negotiable."  According  to  the 
Ir.w  merchant,  "negotiability"  consisted  of  two  elements:  1.  Thi> 
fact  that  the  transferee  obtained  the  legal  title  and  could  sue  at 
law  in  his  own  name;  and  2.  The  fact  that  the  transferee  in  good 
faith  and  for  value  took  free  from  all  equities  and  nearly  all  de- 
fenses subsisting  in  favor  of  prior  parties  to  the  paper.  The  first 
of  these  elements  now  belongs,  in  the  great  majority  of  the  states, 
to  all  things  in  action.  There  is,  as  it  seems  to  me,  an  evident 
tendency,  on  the  part  of  the  courts  in  many  states,  to  enlarge  the 
scope  of  the  second  element,  and  to  extend  it  also  to  all  species 
of  things  in  action  which  are  embodied  in  contracts  or  instruments 
in  writing. 

§  712.     Subsequent  Assignee  Obtaining  the  Legal  Title  may  be 
Protected  as  a  Bona  Fide  Purchaser. — In  the  discussions  of  the  fore- 

-5f5  N.   Y.   41,   14  Am.  Rep.    17:5. 

'Osborn  v.  McClelland,  43  Oh.  fSt.  284,  30G,  1   N.  E.  644. 


§713  EQUITY  JUl;lSl'l;l■DK^■cE.  33G 

eoino^  paragraphs,^  it  has  been  constantly  assumed  that  the  assignee 
had  acquired  only  an  equitable  title,  in  order  that  he  might  take 
subject  to  the  equities  subsisting  in  favor  of  a  prior  assignee  or  of 
a  third  person.  If,  in  addition  to  his  eciuitable  interest  conferred 
b}^  the  assignment,  he  has  also  obtained  the  legal  title,  or  even  if  his 
situation  is  such  that  he  has  the  best  right  to  call  for  the  legal  title, 
then  the  doctrine  of  purchase  for  a  valuable  consideration  and 
Avithout  notice  may  apply  so  as  to  protect  him  against  all  such  out- 
standing equities.  It  should  be  constantl}^  borne  in  mind  that  prior- 
ity of  time  gives  precedence  of  right  among  successive  and  con- 
victing equitable  interests  only  when  these  equitable  interests  are 
equal  in  their  nature  or  incident.  An  illustration  may  be  seen  in 
the  decisions  of  many  able  courts  with  respect  to  dealings  in  shares 
of  stock.  Where  a  transfer  of  a  certificate  has  been  made  by  the 
owner's  own  signature,  but  procured  only  through  the  fraud,  breach 
of  duty,  or  conversion  of  the  person  Avho  actually  effects  the  first 
assignment,  or  without  consideration,  or  upon  an  illegal  considera- 
tion, and  even  where  the  transfer  is  accomplished  solely  by  a  for- 
gery of  the  owner's  name  to  the  indorsement  and  power  of  attor- 
ney, and  the  certificate  thus  comes  into  the  hands  of  a  purchaser 
for  a  valuable  consideration  and  without  notice,  and  he  perfects 
his  legal  title  by  surrendering  the  original  certificate  to  the  cor- 
poration and  receiving  a  new  one  in  his  own  name,  and  by  procur- 
ing the  transaction  to  be  properly  entered  upon  the  company's 
transfer-books,  which  thereupon  show  him  to  be  the  legal  owno- 
of  the  shares,  the  assignee  under  these  circumstances,  as  is  held  in 
many  cases,  obtains  a  complete  precedence  over  the  original  own- 
er; he  is  not  liable  to  the  owner  for  the  shares  nor  for  their  value: 
the  OAvner's  remedy,  if  any  exists  at  all,  is  against  the  corporation 
alone,  to  compel  it  either  to  issue  new  shares  or  to  pay  the  value  of 
the  old  ones.-  These  decisions  should,  on  principle,  apply  to -and 
protect  the  assignee  of  ever^^  other  species  of  thing  in  action  who 
has  acquired  the  legal  title. 

S  713.  Successive  Assignments  by  Same  Assignor  to  Different 
Assignees. — The  remaining  case  to  be  considered  under  this  head, 
•Ms  mentioned  in  a  former  paragraph,^  is  that  of  successive  transfers 
')[*  the  same  thing  in  action  made  by  the  same  person — the  creditor 
};arty — to  different  assignees.  The  American  decisions  upon  this 
])articular  case  cannot  be  reconciled.  I  can  only  present  those 
settled  doctrines  of  equity  which,  it  would  seem,  should  apply  to 

'  Viz.,  from   §S  707  to   711. 

M'ratt   V.    Taunton   Copper   M.    Co..    12:^    ^ifnss.    110.    112.    2.5    Am.    Rep.    137; 
Sewall  V.   Boston  AVater  P.  Co.,  4  Allei;  277,  81  Am.  Dec.  701. 
*  (See  §  707. 


337  CONCEIIXIXG     PKIOUITIES.  §  714 

and  govern  such  a  ooiulition  of  cireumstanees.  In  England  and  in 
several  of  the  states  the  rule  giving  to  the  assignee  who  first  noti- 
fies the  debtor  party  or  trustee  a  precedence  over  all  others,  even 
those  who  are  earlier  in  date,  furnishes  a  certain  and  simple  crite- 
rion for  determining  the  priority,  it  being  remembered  that  this 
rule  is  confined  to  pure  personal  things  in  action,  and  does  not  ex- 
tend to  liens  and  other  equitable  interests  in  real  estate.-  In  the 
states  where  the  rule  referred  to  does  not  prevail,  the  question  must 
turn  upon  other  doctrines.  If  the  interests  are  equitable  in  their 
nature,  and  the  equity  of  no  assignee  is  intrinsically  superior  to 
the  others,  the  settled  principle  of  equity  should  control,  that  the 
order  of  time  determines  the  order  of  priority;  or  in  other  words, 
that  the  subsequent  assignee  takes  subject  to  the  rights  of  the  one 
prior  in  time;  and  this  principle  has  been  applied,  in  such  cases, 
by  many  able  decisions.^  On  the  other  hand,  if  the  subsecpient  as- 
signee has  acquired  the  legal  title,  and  was  a  purchaser  in  good 
faith  for  a  valuable  consideration  and  without  notice,  he  is  protect- 
ed ;  and  this  doctrine  of  bona  fide  purchase  seems  to  have  been  ex- 
tt  nded,  by  some  decisions,  to  subsequent  assignees  Avho  had  only 
obtained  an  equitable  interest.* 

J;  714.  3.  Equities  in  Favor  of  Third  Persons. — Equities  in  favor 
of  third  persons  through  whom  the  title  to  the  thing  in  action  has 
never  passed,  and  those  in  favor  of  a  former  assignor,  are  intimate- 
ly connected ;  indeed,  they  are  only  different  phases  of  the  same 
doctrine,  and  must  stand  or  fall  together.  If  the  impei'fection  of 
an  assignee's  title  is  not  confined  to  equities  subsisting  in  favor  of 
Ihe  debtor  party,  there  is  no  reason,  in  the  nature  of  things,  why 
it  should  not  extend  to  the  equities  of  all  other  parties. — thii-d  per- 
soijs  as  well  as  previous  holders  and  assignors;  in  fact,  the  doctrine 
would  apply  Avith  fewer  exceptions  in  the  case  of  third  persons 
than  in  the  case  of  prior  assignors.  As  a  third  person,  although 
having  some  interest  or  claim  which  constitutes  his  "equity,"  has 
never  been  an  oAvner  or  holder  of  the  chose  in  action,  and  has  never 
transferred  it,  his  conduct  toAvards  it  cannot,  in  general, 
enable  the  assignee  to  invoke  against  him  the  doctrine  of  estoppel. 
These  conclusions  are  fully  sustained  by  judicial  authority.  Wher- 
ever the  narroAver  vicAV  that  an  assignee  takes  subject  onhj  to  the 

-  Sco  supra,   §§69.5-007. 

•^fuir  V.  .Schenck,  3  Hill  228.  38  Am.  Dec.  633,  Sh.  106;  Farmers'  Bank  v. 
Diobold  Safe  &  Look  Co..  66  Ohio  St.  367,  64  X.  E.  518,  90  Am.  St.  Rep.  586, 
58  L.  K.  A.  620:  Fairbanks  v.  Sarircnt.  104  N.  Y.  108,  58  Am.  Rep.  490, 
s.  c.  117  X.  Y.  320.  22  X.  E.  1039.  6  L.  R.  A.  475.  See,  also,  supra,  last 
nore  to  §  695. 

■'Supra,   §  698;   Judson  v.   Corcoran,   17  How.  612:   Dueber  Watch-Case  Mfg. 
Co.  V.  Daugherty.  62  Oli.  St.  589,  57  N.  E.  455. 
22 


§  T15  EQUITY    JLlvJSl'UUDENCE,  338 

equities  of  the  debtor  has  been  rejected,  and  the  theory  of  "latent" 
equities  has  been  disregarded,  the  courts  have  described  the  assign- 
ment as  subject  to  all  claims  existing  against  the  assignor, — have 
laid  down  the  rule  in  comprehensive  and  positive  terms,  that  the 
assignee  takes  subject  to  all  equities,  latent  or  open,  of  third  per- 
sons. Of  course  the  "equity,"  in  such  a  case,  must  be  some  sul)- 
sisting  claim  to  or  against  the  thing  in  action  itself,  or  the  fund 
Avhich  it  represents,  which  the  third  person  held  and  could  have 
enforced  if  it  had  remained  in  the  hands  of  the  assignor;  as.  for 
example,  a  lien  or  charge  upon  the  fund  or  some  part  of  it,  or  upon 
the  security,  or  an  equitable  ownership  or  right  to  the  fund  or 
security,  and  the  like.^  The  case  of  subsequent  execution  or  at- 
tachment creditors  of  the  assignor  stands  upon  a  somewhat  differ- 
ent footing,  since  their  equities  in  the  subject-matter  are  not  exist- 
ing at  the  time  of  the  assignment.- 

^  715.  Contrary  Rule,  that  Assignments  of  Things  in  Action  are 
Free  from  Latent  Equities  in  Favor  of  Third.  Persons  or  Previous 
Assignors. — On  the  other  hand,  the  conclusions  reached  by  this  im- 
posing line  of  authorities  have  been  wholly  rejected.  Able  judges 
and  courts  have  maintained  the  position  that  assignments  of  things 
in  action  are  subject  only  to  equities  of  ihe  debtor  party;  that  they 
are  never  subject  to  equities  in  favor  of  third  persons,  and  especial- 
ly that  they  are  free  from  that  kind  of  prior  claim  often  called 
"latent  equities."^  Although  this  direct  conflict  cannot  be  com- 
])leteiy  reconciled,  yet  the  apparent  discrepancy  which  ejcists  among 
similar  cases  may  be  explained,  and  at  least  partly  removed,  by 
certain  well-settled  principles  of  equity  which  are  recognized  by  all 
courts.  The  e(iuity  of  the  second  assignee  may,  from  some  intrinsic 
element  or  some  external  incident,  be  "superior,"  and  may  there- 
fore be  entitled  to  a  precedence ;  or  the  second  assignee  may  have 
obtained  a  legal  title,  so  that  the  doctrine  of  bona  fide  purchaser 
for  a  valuable  consideration  will  apply  and  give  him  protection  ;'- 
or  the  holder  of  the  prior  ecpiity  may  have  been  guilty  of  laches 
or  other  conduct  making  it  inequitable  to  subject  an  innocent  sub- 
sequent assignee  to  his  claim.^ 

1  yhropshire,  etc.,  Ey.  v.  The  Queen,  L,  R,  7  H.  L.  496,  Ames  Trusts  300 ; 
Bush  V.  Lathrop,  22  N.  Y.  535,  per  Denio,  J.;  Muir  v.  Schenck,  3  Hill  228, 
38  Am.  Dec.  633,  Sh.  106. 

"  For  cases  postponinpf  the  equities  of  the  assiijnor's  creditors,  see  ante, 
§§  694,  and  note,  700,  and  note. 

"Murray  v.  Lylhurn,  2  Johns.  Ch.  441,  443,  1  Scott  526;  Sumner  v.  Wnugh, 
56  Til.  531  :    Winter  v.  Montgomery  G.  L.  Co.,  89  Ala.  544,  7  South.  773. 

-As  in  Western  Xat.  Bank  v.  Maverick  Nat.  Bank,  90  Oa.  339,  16  S.  E.  942, 
35  Am.  St.  Rep.  210:  Winter  v.  Mtrntoomcrv  C.  L.  Co..  89  Ala.  544,  7  South. 
773. 

'See  supra,   §   (i98,  Judson  v.   Corcoran,   17   How.  612,  and  other  cases  cited. 


339  coxcKiiMNt;    1'i;iouities.  § '^l!^ 

^  716.  Equitable  Estates,  Mortgages,  Liens,  and  Other  Interests. 
Having  thus;  coiKsider'ed  the  geiu'ral  principles  concerning  priority 
in  their  effect  upon  assignments  of  pure  things  in  action,  1  shall 
7io\v  examine  their  application  to  another  group  of  eiiuitable  inter- 
ests in  property,  including  estates,  liens,  charges,  and  the  like.  The 
genera:  doctrines  which  control  these  kinds  of  interests,  and  deter- 
mine their  order  of  priority,  have  been  presented  in  the  formm' 
part  of  this  section,  and  require  no  further  discussion ;  it  only  re- 
mains to  illustrate  their  application  under  various  circumstances  to 
different  conditions  of  fact.     .     .     . 

§  717.  Doctrine  of  Priorities  Greatly  Modified  by  the  Recording 
Acts.  .  .  .  The  scope  and  operation  of  these  purely  equitable 
doctrines  throughout  the  United  States  have  been  greatly  broken 
in  upon  and  modified  by  the  various  recording  acts;  so  that  any 
uniformity  of  the  practical  rules  has  been  made  virtually  impos- 
sible. The  provisions  of  the  recording  acts  differ  exceedingly  in 
the  different  commonwealths,  as  has  been  shown  in  the  preceding 
section.^     ,     ,     . 

^  718.  I.  Priority  of  Time  among  Equal  Equities. — The  general 
doctrine  is  well  settled,  as  already  stated,^  that  among  successive 
ecjuitable  estates,  liens,  and  interests  which  are  equal, — that  is, 
where  neither  claimant  holds  the  legal  estate  or  has  the  best  right 
to  call  for  it,  and  neither  is  intrinsically  superior  to  the  others,  noi* 
is  affected  with  any  collateral  incident,  such  as  negligence  or  fraud, 
--the  order  of  time  controls,  even  though  a  subsequent  holder  ac- 
quired his  interest  without  any  notice  of  the  prior  one.  Under  these 
circumstances  the  maxim,  Qui  prior  est  tempore,  potior  est  jure, 
ajiplies.  The  doctrine  has  been  fully  recognized  and  constantly  en- 
forced by  American  courts,  wherever  its  operation  has  not  been 
interfered  with  or  modified  by  the  recording  acts.-  The  equities  to 
which  this  rule  has  been  most  frequently  applied  by  the  English 
courts  are  equitable  mortgages,  especially  those  created  by  a  de- 
posit of  title  deeds, — a  kind  of  security  almost  unknown  in  this 
country.  In  order  to  accurately  appreciate  the  decisions  upon  this 
subject,  it  is  important  to  keep  in  mind  the  peculiar  rules  concern- 
ing the  nature  of  legal  and  equitable  mortgages  which  prevail  in 
llie  English  law,  and  which  are  in  many  respects  different  from 
our  own  system.^ 

*tSee  supra.   S   646. 

^  See  supra.  §S   678.  f5S2. 

-Phillips  V.  Phillips,  4  De  Gex,  F.  &  J.  208.  215,  218,  H.  &  B.  72,  Ames 
Trusts  331,  1  Scott  333,  511;  Cave  v.  Cave,  L.  R.  15  Ch.  Div.  639,  646,  Ames 
Trusts  311.  1  Scott  517:  Rico  v.  Pirc,  2  Drew.  73,  H.  &  B.  23,  1  Scott  334; 
Berrv  v.  .Mutual  Ins.  Co,.  2  .lolni-;.  Ch.  t>n3,  Sh.   104,   1   Scott  331. 

*With  respect  to  priorities  between  successive  equitable  mortages,  see  Brad- 


§  730  El^UlTY   JUlUSlTxUDENCE.  340 

§  719.  Illustrations — Simultaneous  Mortgages,  Substituted  Liens, 
etc. — It  has  naturally  followed,  from  the  provisions  of  the  record- 
ing acts,  and  from  the  quite  different  modes  of  conducting  business 
prevailing  in  this  country,  that  the  questions  presented  to  the  Am- 
erican courts  for  decision  have  been  of  another  character,  arising 
from  other  circumstances.  Among  these  questions,  one  relates  to 
simultaneous  mortgages  or  other  liens.^  Two  or  more  mortgages 
having  been  given  at  the  same  time,  or  as  parts  of  the  same  single 
transaction,  with  the  intention  that  they  should  be  simultaneous 
liens,  they  may  perhaps  be  recorded  on  different  days,  and  the 
court  may  be  called  upon  to  settle  the  equities  between  the  mort- 
gagees or  their  assignees.  A  second  and  most  important  question 
concerns  the  respective  claims  of  precedence  between  a  prior  un- 
i-ecorded  mortgage  or  other  specified  equitable  lien,  and  a  subse- 
quent docketed  judgment.-  Another  question  relates  to  the  effect 
of  substituting  a  different  lien  in  the  place  of  one  already  existing, 
whether  the  substituted  lien  retains  the  precedence  which  belonged 
to  the  one  Avhich  it  has  replaced.^ 

^  720.  II.  One  Equity  Intrinsically  the  Superior — Prior  Gen- 
eral and  Subsequent  Specific  Lien. — The  doctrine  has  already  been 

ley  V.  Riches,  L.  R.  9  Ch.  Div.  ISO.  Witli  respect  to  such  i^riority  where  there 
has  been  negligence  on  the  part  of  the  one  first  in  order  of  time,  see  Hunter 
V.  Walters,  L.  R.  11  Eq.  292;  see  ante,  §  (iST.  and  notes:  In  re  Castell' &  Brown 
(1898),  1  Ch.  313.  If  the  legal  owner  <d'  the  land  gives  a  first  mortgage 
on  it  to  A  in  the  ordinary  form  known  to  the  common  law,  of  a  deed  with  a 
condition,  this  is,  of  course,  a  legal  mortgage;  A  obtains  and  holds  the  legal 
title  and  estate,  if  the  mortgage  is  of  the  fee,  then  his  estate  is  the  legal  fee. 
While  this  first  mortgage  is  outstanding,  all  subsequent  mortgages  of  the  same 
land  to  B,  C,  D,  etc.,  no  matter  what  may  be  their  forms,  are  necessarily 
cquifable  mortgages;  even  if  such  a  subsequent  mortgage  be  in  the  form  of  a 
legal  conveyance,  it  can  only  convey  an  equitable  estate,  since  the  legal  estate 
has  already  been  conveyed  away  and  is  vested  in  the  first  mortgagee,  A.  This 
is  the  settled  rule  necessarily  resulting  from  the  English  theory  of  mortgages. 
Again,  if  the  legal  owner  of  land  creates  a  first  mortgage  upon  it  by  depositing 
all  his  title  deeds  with  A,  A's  interest  is  certainly  an  equitable  mortgage: 
but  since  he  is  first  in  order  of  time,  and  possesses  all  the  legal  muniments  of 
title,  and  has  the  right  to  call  for  the  execution  of  an  ordinary  legal  mortgage 
by  conveyance-  in  order  to  perfect  his  security,  his  position  is  plainly  similar 
to  that  of  a  legal  mortgagee. 

'  As  illustrating  the  questions  that  may  arise,  see  fireene  v.  Warnick.  64  X.  Y. 
'220:  Clark  v.  Brown.  3  Allen  509;  Walker  v.  BufTandeau,  03  Cal.  312;  Utley  v. 
Diinkclberger,  86  Iowa  469,  53  N.  W.  408. 

-This  particular  question,  which  has  given  rise  to  a  direct  conflict  of  opin- 
ion, is  more  fully  examined  under  the  next  head    (infra,  §§  721-724). 

■■"As  illustrating  the  various  questions  that  may  arise,  see  Jones  v.  Davis, 
121  .Ma.  348,  25  South.  789*:  Robert'^  v.  T)oan,  180  111.  187.  54  N.  E.  207; 
Morkingman's  B.  &  S.  Ass'n  v.  Williams  (Tenn.  Ch.  .\pp.)  37  S.  W.  1019; 
Seeley  v.  Bacon    (N.  J.  Eq.)    34  Atl.   139,  3  Keener  3S7. 


oil  C'Oxcei;:nixg   riaoKiTii;».  J;  7"^1 

stated^  that  where  one  of  two  equities  is  intrinsically  the  superior, 
it  is  entitled  to  precedence ;-  and  that  an  equitable  interest  in  rem, 
such  as  that  created  by  a  mortgage,  contract,  trust,  and  the  like, 
is  superior  to  a  mere  voluntary  interest,  and  to  the  general  lien 
of  a  judgment.  It  would  seem  to  be  a  general  rule,  at  all  events  a 
correct  deduction  from  settled  principles,  that  where  there  is  a 
jirior  general  lien,  embracing,  among  other  things,  a  certain  sub- 
ject-matter, and  a  specific  lien  is  subsequently  created  upon  that 
same  particular  subject-matter,  not  voluntary,  but  arising  from  a 
new  and  valuable  consideration,  such  subsequent  specific  lien  would 
be  intrinsically  superior,  and  therefore  entitled  to  the  precedence, 
at  least  if  it  were  acquired  by  the  holder  thereof  without  notice  of 
the  prior  general  encumbrance.  This  rule  is  certainly  recognized 
by  some  decisions.'' 

^  721.  Prior  Unrecorded  Mortgage  Superior  to  Subsequent 
Docketed  Judgment. — The  must  important  question  under  this  head 
which  has  come  before  the  American  courts  relates  tp  the  respective 
claims  arising  from  a  prior  specific  and  a  subsequent  general  lien. 
The  doctrine  is  certainly  established  as  part  of  the  equity  juris- 
2)rudence,  and  rests  upon  the  solid  basis  of  principle,  that  prior 
equitable  interests  in  rem,  including  equitable  liens  upon  specific 
parcels  of  land,  have  priority  of  right  over  the  general  statutory 
lien  of  subsequent  docketed  judgments,  although  the  latter  is  legal 
in  its  nature.  Judgment  creditors  are  not  '^purchasers"  within  the 
meaning  of  the  recording  acts,  and  unless  expressly  put  upon  the 
same  footing,  they  do  not  obtain  the  benefit  which  a  subsequent 
purchaser  does  by  a  prior  record.  The  equitable  doctrine  is,  that 
a  judgment  and  the  legal  lien  of  its  docket  binds  only  the  actual 
interest  of  the  judgment  debtor,  and  is  subject  to  all  existing  equi- 
ties which  are  valid  as  against  such  debtor.^     It  follows,  as  a  neces- 

'Hee  supra,   §§  G84-G92. 

-As  an  illustration,  in  Rice  v.  Rice,  2  Drew.  73,  H.  &.  B.  23,  1  Scott  334,  a 
vendor  conveyed,  without  receiving  the  purchase  price,  but  indorsing  the 
receipt  of  it  upon  the  deed,  and  delivering  the  title  deeds  to  tlie  grantee.  This 
grantee  then  made  an  equitable  mortgage  by  a  deposit  of  tlie  title  deeds,  and 
absconded.  Held,  that  the  vendor's  lien  for  the  unjjaid  price,  although  prior 
in  time,  must  be  postponed  to  the  equitable  mortgage,  because  the  jjossession 
of  tlie  title  deeds  and  the  fact  of  the  indorsement  of  the  receipt  on  the  deed 
made  the  mortgagee's  equity  superior.     See,  also,  Ihnne  v.  Di.\(m,  37  Ohio  St.  (iU. 

Mn  re  Hamilton's,  etc.,  Ironworks,  L.  R.  12  Ch.  Div.  707,  710,  711;  Wales 
V.  Sammis,   120  Iowa  293,  94  N.   W.  840.     See  post,   S   1253. 

'Beavan  v.  Earl  of  Oxford,  6  De  (!ox.  M.  &  ().  507,  517,  518;  Brown  v. 
Pierce,  7  Wall.  205,  H.  &  B.  326,  1  Scott  70S  (judgnient  lien  inferior  to  equity 
of  grantor  whose  deed  was  obtained  through  duress)  ;  Galway  v.  IMulchow. 
7  Neb.  285  (inferior  to  mortgagee's  equity  to  reform  mortgage  so  as  to  include 
land  omitted  by  mistake)  ;  Harney  v.  First  Nat.  Bank,  52  N.  J.  Eq.  697,  29  Atl. 


§  ",23  EQUITY  jii'isriirDF.xCE.  342 

sary  coiiseqiienee,  that,  unless  prevented  b}-  express  statutory  pro- 
visions, the  equitable  lien  of  a  prior  unrecorded  mortgage  given 
upon  a  specific  parcel  of  land  should  have  precedence  over  the 
general  legal  lien  of  a  subsequent  docketed  judgment  against  the 
owner  of  the  mortgaged  premises,  even  when  the  judgment  was 
recovered  and  docketed  without  any  notice  to  the  judgment  cred- 
itor of  such  outstanding  mortgage.  This  rule,  which  is  plainh^ 
coi-rect,  as  being  in  accordance  with  principle  and  preserving  the 
consistency  and  symmetry  of  the  equity  jurisprudence,  has  been 
adopted  and  firmly  established  bj^  the  courts  in  many  of  the  states.- 
The  generaT  rule,  wherever  it  thus  prevails,  is  still  susceptible  to 
modifications  and  exceptions  depending  upon  special  circumstances. 

§  722.  Contrary  Rule,  in  Some  States,  that  the  Subsequent  Judg- 
ment has  Precedence. — A  very  dift^'erent  rule  prevails  in  many  states, 
in  which  it  is  settled  that  the  lien  of  a  subsequent  docketed  judg- 
ment prevails  over  that  of  a  prior  unrecorded  mortgage  or  other 
prior  equitable  interest  or  lien  not  recorded,  of  which  the  judg- 
ment creditor  had  no  notice  at  the  time  of  recovering  and  doe-ket- 
ing  his  judgment.  This  result  is  reached,  in  some  of  the  states,  from 
express  provisions  of  the  statutes ;  in  others  from  what 
was  deemed  to  be  the  necessarv  interpretation  of  the  statutory 
language;  and  in  a  few,  as  it  would  seem,  from  an  intentional  I'C- 
jection  of  the  equitable  doctrine  which  lies  at  the  basis  of  the 
wliole  subject.^ 

i;  723.  Subsequent  Judgment  Creditor  had  Notice  of  the  Prior 
Unrecorded  Mortgage. — In  a  large  nundjer  of  the  states,  including 
man}^  of  those  which  have  adopted  the  rule  as  laid  down  in  the  last 
paragraph,  if  the  judgment  creditor  has  notice  of  a  prior  unrecord- 
ed mortgage,  or  other  outstanding  equitable  lien  upon  or  interest 
in  the  land  of  his  judgment  debtor,  at  the  time  when  he  recovers 
the  judgment,  the  lien  arising  from  the  docket  of  his  judgment  is 
postponed  to  such  prior  encumbrance  or  equity.^     In  a  few  of  the 

221  (inferior  to  partners'  equity  to  have  lands  applied  to  partnership  debts)  ; 
Hanipson  v.  Edelen,  2  Har.  &  J.  64,  .3  Am.  Dee.  530,  2  Scott  708  (inferior  to 
interest  of  vendee)  ;  Snyder  v.  Martin,  17  W.  Va.  276,  41  Am.  Rep.  (570  (inferior 
to  equity  of  parol  vendee  in  possession).  As  to  priority  of  grantor's  lien, 
see   post,   §  125.3. 

-Prior  unrecorded  mortgage:  Vauglin  v.  Schnialsde,  10  ?>Iont.  1S(1.  25  Vac. 
102.  10  L.  R.  A.  411.  Prior  unrecorded  deed:  Columbia  Bk.  v.  Jacobs,  lO 
Mich.  349,  81  Am.  Dec.  792. 

'HoUiday  v.  Franklin  Bank,  16  Ohio  533:  Massey  v.  Westcott.  40  111.  100; 
Harney  v.  PMrst  Nat.  Bank,  52  N.  J.  Eq.  097.  29  Atl.  221;  Meeker  v.  Warren 
(N.  J.  Eq.)    57  Atl.  421. 

'Priest  V.  Rice,  1  Pick.  164.  11  Am.  Dec.  156;  A.  R.  Beck  Lumber  Co.  v. 
Rupp,  18S  111.  562.  59  X.  E.  429.  SO  Am.  St.  Rep.  190  (possession  of  tenant  as 
notice)  :  Wahn  v.  Fall.  55  Xehr.  547,  76  X.  W.  13,  70  Am.  St.  Rep.  397 
(possession    by   vendee    notice   of    his    cfpiity). 


34;5  €OXCEi;XlX(J     rUlOKITIKS.  ^  V"3  + 

states,  however,  the  statutory  language  is  regarded  a.s  so  Deremp- 
tory,  and  the  necessity  of  recording  so  complete,  that  even  notice  ol' 
an  unrecorded  mortgage  or  other  subsisting  equity,  given  to  the 
creditor  before  the  recovery  and  docketing  of  his  judgment,  is  held 
not  to  affect  the  priority  of  the  lien  acquired  by  the  subsequent 
docketed  judgment. - 

§  724.  Between  Prior  Unrecorded  Mortgage  and  a  Purchase  at 
Execution  Sale  under  Subsequent  Judgment. — Having  thus  examin- 
ed the  relations  subsisting  between  unrecorded  mortgages  and 
other  equities,  and  the  liens  of  subsequent  docketed  judgments,  it 
remains  to  consider  the  effects  produced  by  a  -judicial  sale  under 
snch  judgments.  Several  varying  conditions  of  fact  may  exist,  and 
conflicting  rules  concerning  them  prevail  to  a  certain  extent,  in 
different  states.  In  the  first  place,  it  is  a  rule  universally  adopted, 
and  in  strict  accordance  with  the  general  doctrine  concerning  bona 
fide  purchasers  as  established  in  this  country,  that  in  all  the  in- 
stances heretofore  mentioned,  even  where  the  Urn  of  a  subse(|uent 
judgment  is  subject  to  an  outstanding  equity,  if  the  judgment  is 
enforced  at  a  sheriff's  sale,  and  the  judgment  debtor's  land  is  sold 
and  conveyed  to  a  bona  fide  purchaser  for  a  valuable  consideration 
and  without  any  notice,  he  stands  in  the  position  of  any  other  bona 
fide  purchaser  who  acquires  the  legal  estate,  and  takes  the  land 
free  from  any  unrecorded  mortgage  and  any  outstanding  equitable 
interest  or  lien  not  appearing  of  record  which  might  have  affected 
the  land  in  the  hands  of  the  judgment  debtor.  Tn  other  words,  such 
a  purchaser  at  the  execution  sale  is  to  all  intents  a  purchaser  in  good 
faith  for  a  valuable  consideration  and  without  notice,  as  is  de- 
scribed in  the  succeeding  section.^  Secondly,  where  the  lien  of  the 
subsequent  judgment  is,  in  pursuance  of  the  settled  doctrine  of 
equity,  subject  to  a  prior  unrecorded  mortgage  or  other  outstand- 
ing equity,  even  without  notice  thereof  to  the  judgment  creditor, 
and  also  where  the  lien  of  the  judgment  is  thus  subject  because 

^Mayliam  v.  Coombs,  14  Ohio  428. 

'Draper  v.  Bryson.  26  ]Mo.  108,  69  Am.  Deo.  48.3;  Ayres  v.  Duprey.  27  Tex". 
50.3.  605,  86  Am.  Dec.  657.  In  many  states  it  is  held  that  if  the  judgment 
rreditor  purchases  nt  the  sheriff's  sale  without  notice,  takes  a  conveyance, 
and  has  his  bid  applied  in  partial  or  full  dischar-re  of  his  judjiment,  he  becomes 
a  bona  fide  purchaser  for  value  without  notice,  with  all  the  rights  belonging 
to  that  position :  Riley  v.  Martinelli,  97  Cal.  575.  32  Pac.  579,  33  Am.  St.  Re]i. 
209,  21  L.  R.  A.  33:  Pugh  v.  Highley,  152  Ind.  2.52.  53  N.  E.  171,  71  Am.  St. 
Rep.  327,  44  L.  R.  A.  392.  Rut  this  conclusion  is  clearly  inconsistent  with 
the  settled  doctrine  concerning  the  nature  of  the  "valuable  consideration" 
which  entitles  a  purchaser  to  the  rights  of  a  bona  fide  purchaser,  and  has 
been  rejected  by  many  decisions:  Hacker  v.  White.  22  Wash.  415.  60  Pac. 
1114,  79  Am.  St.  Rep.  945;  Williams  v.  Hollingsworth,  1  Strob.  Eq.  (S.  Car.) 
103,  47  Am.  Dec.  527. 


§  'J'25  EQUITY     JLinSPRUDEXCE.  344 

the  Judo'ment  creditor  liad  received  notice  before  its  recovery,  if 
the  judgment  is  enforced,  and  the  land  is  soid  and  conveyed  to  a 
l)urchaser  who  has  chily  received  notice  of  the  prior  unrecorded 
mortgage  or  other  subsisting  equity,  the  inferiority  of  the  judgment 
lien  still  remains  and  attaches  to  the  conveyance  which  is  the  re- 
.-ult  of  that  lien  The  purchaser  under  these  circumstances  is  not 
a  bona  fide  purchaser;  he  takes  the  land  subject  to  the  same  encum- 
brances and  equities  which  a  fleeted  the  lien  of  the  docketed  judg- 
inent.'-  Third!}',  wherever,  in  pursuance  of  the  rule  adopted  in 
many  states,  the  lien  of  a  subsequent  judgment  is  paramount  to 
that  of  a  prior  unr,ecoi'ded  mortgage  and  to  any  outstanding  equit- 
able interest  not  of  record,  if  the  judgment  is  enforced  and  the  land 
si.'ld  and  conveyed  to  a  purchaser  ivho  has  received  notice  of  the 
i)iior  encumbrances  or  equities,  the  superiority  of  the  iien  still 
continues  and  attaches  to  the  conveyance.  The  purchaser  holds 
the  land  free  from  all  such  claims  not  of  record,  on  the  ground 
that  when  a  right  has  once  been  vested  and  made  absolute,  it  can- 
not be  divested  or  defeated  by  any  mere  notice,  The  judgment 
creditor  having  obtained  a  complete  and  fixed  right,  any  notice 
which  he  might  afterwards  receive  could  not  affect  that  right;  nor 
would  it  be  affected  by  a  transfer  to  a  purchaser  having  notice.* 

§  725.  Purchase-money  Mortgages.— Another  very  important  in- 
stance in  this  country,  of  intrinsic  superiority,  is  that  of  the  pur- 
chase-money mortgage.  A  mortgage  to  secure  the  purchase-money 
of  land,  given  at  the  same  time  with  the  deed  of  conveyance,  or  in 
pursuance  of  agreement  as  a  part  of  the  same  transaction,  has 
precedence,  so  far  as  it  is  a  charge  upon  the  particular  parcel  of 
land,  over  judgments  and  other  debts  of  the  mortgagor.^  It  is  a 
familiar  rule  in  those  states  where  the  common-law  dower  exists 
that  such  a  mortgage,  although  not  executed  by  the  wife,  takes 
precedence  over  her  dower  right  in  the  same  land.^  The  statutes 
of  some  states  give  a  purchase-money  mortgage  precedence  over  a 
pievious  judgment  recovered  against  the  mortgagor."  .  .  .  Even 
in  the  absence  of  any  statute,  and  upon  the  general  principles  of 
ef|uity,  a  purchase-money  mortgage  given  at  the  same  time  as  the 
deed,  or  as  a  part  of  the  same  transaction,  has  precedence  over 
any  prior  general  lien,  such  as  that  of  a  prior  judgment  against  the 

-Mover  v.  Himnan,  13  N.  Y.  180,  2  Keener.  344:  Ogdeii  v.  Haven.  24  Til.  57; 
.Murphy  v.  Green,  120  Ala.  112.  22  South.  112. 

•■'Lusk  V.  Reel,  36  Fla.  418.  18  South.  .'582.  51  Am.  St.  Rep.  32:  Wallace  v. 
Campbell,  54  Tex.  87.     See  post.   §   754. 

'  In  many  states  this  is  expressly  enacted  by  statute. 

'Clark  V.  Munroe,  14  Mass.  351:  Frederick  v.  Emig,  186  111.  319,  59  N.  E,  883, 
78  Am.  St.  Rep.  283. 

■•Hopler  V.  Cutler  (N.  J.  Eq.),  34  Atl.  746. 


345  CON'CEltXINCi     rUlOlUTlKS.  §  T"27 

mortgagor.^  The  same  ecjuitable  rule  ap})lies  in  like  manner  to  a 
niortgage  given  by  the  grantee  to  a  third  person,  as  security  for 
money  loaned  for  the  purpose  of  being  used,  and  which  is  actually 
used,  in  paying  the  purchase  price."'  ,  ,  .  The  purchase-money 
mortgage  not  only  thus  takes  precedence  of  a  prior  judgment,  but 
it  also  cuts  off  or  prevents  the  attachment  of  any  other  lien  upon 
the  premises  which  might  otherwise  have  affected  them." 

§  726.  Other  Illustrations.— In  addition  to  these  most  important 
questions  of  priority  between  different  equitable  liens,  there  may 
be  many  other  particular  instances  in  which  a  subse(iuent  interest 
is  intrinsically  superior,  or  an  earlier  one  intrinsically  inferior,  so 
as  to  determine  the  precedence  between  them.  .  ,  .  Fraud  in- 
hering in  a  prior  mortgage,  encumbrance,  or  other  apparent  claim 
will,  of  course,  postpone  it  to  a  subsequent  valid  lien.^  .  ,  .  The 
priority  among  liens  may  also  be  fixed  by  express  agreement  among 
the  parties  at  the  time  they  are  created,  so  as  even  to  follow  them 
sometimes  into  the  hands  of  an  assignee.^ 

§  727.  III.  A  Subsequent  Equity  Protected  by  the  Legal  Title. 
— The  case  to  be  considered  is  not  that  merely  of  an  equitable  in- 
terest held  by  A,  and  a  subsequent  conveyance  of  the  legal  estate 
to  B,  in  which  the  latter 's  superior  right  would  be  a  simple  applica- 
tion of  the  doctrine  concerning  bona  fide  purchase  for  a  valuable 
consideration.  The  subject  to  be  examined  assumes  the  existence 
of  successive  equities  held  by  different  persons,  equal  in  their  na- 
tui'e,  and  acquired  in  such  a  manner  that,  having  regard  to  these 
interests  alone,  the  priority  of  right  among  them  would  depend 
upon  their  order  of  time.  Under  these  circumstances,  it  is  assumed 
that  one  of  the  parties  acquires,  in  some  manner,  the  legal  title  in 
addition  to  his  equity.  The  settled  doctrine  is,  that  if  a  second  or 
other  subsequent  holder,  who  would  otherwise  be  postponed  to  the 
earlier  ones,  obtains  the  legal  estate,  or  acquires  the  best  right  to 

^Roano  V.  Baker.  120  111.  .308,  11  N.  E.  246:  Weil  v.  Casey,  125  N.  C.  .3.jG, 
.34  S.  E.  .506,  74  Am.  Sf.  Rep.  644;  New  .Jersey  B.  L.  &  Inv.  Co.  v.  Bachelor, 
.54  N.  .1.  Eq.  600,  .35  Atl.  745. 

'Adams  v.  Hill.  21)  X.  II.  202;  Booeis  v.  Tnckor.  94  Mo.  .346,  7  S.  W.  414; 
New  .Jersey  B.  L.  &  Inv.  Co.  v.  Br.chelor,  54  N.  .1.  Eq.  600,  35  Atl.  745. 

*  Superior  to  vendee's  mortgatje  made  and  recorded  prior  to  the  passing-  of 
title  to  him:  Demeter  v.  Wilcox,  115  Mo.  634,  22  S.  W.  613.  37  Am.  St.  Rep. 
422 ;  see  ante,  S  658.  Superior  to  mechanics'  lien :  Strong  v.  Van  Deursen,  23 
N.  .J.  Eq.  369.  Superior  to  homestead  right:  Austin  v.  Underwood.  37  111.  438, 
87  Am.  Dec.  254:  Roby  v.  Bismarck  Nat.  Bank,  4  N.  Dak.  156,  59  N.  W.  719, 
50  Am.  St.  Rep.  633. 

'Efjgeman  v.  Eorgeman,  37  ^Micli.  43^ ;  Hooper  v.  Cenlral  Trust  Co.,  81  :\ld. 
559.  32  Atl.  505.  29  L.  R.  A.  262. 

=  THopler  v.  Cutler  (N.  .J.  Eq.),  34  Atl.  746.  See  Loewen  v.  Forsee  (Mo.),  35 
S.   W.    1138. 


§  T^-^O  Eyi:iTY     JLULSPKL'DEXCE.  3-1  ii 

call  for  the  legal  estate,  he  thereby  secures  an  advan- 
tage which  entitles  him  to  a  priority.^  It  is  absolutely  essential, 
however,  that  he  should  have  aeciuired  his  equitahli'.  interest  without 
any  notice  of  the  prior  claims,  and  that  his  subsequent  procure- 
ment of  the  legal  estate  should  be  free  from  fraud  and  from  undue 
negligence.-     Several  illustrations  are  placed  in  the  foot-note.^ 

§  728.  Legal  Estate  Obtained  from  a  Trustee.— Such  being  the 
general  rule,  there  are  si)ecial  circumstances  in  which  the  acquisi- 
tion of  the  legal  estate,  even  without  notice,  will  not  confer  a  prior- 
ity. Thus  it  seems  now  to  be  settled  by  the  most  recent  English 
decisions  that  where  the  legal  estate  is  vested  in  a  trustee,  and  the 
holder  of  a  subsequent  equitable  interest,  even  without  notice  of 
the  prior  e<iuities.  obtains  a  conveyance  of  the  legal  estate  from 
the  trustee,  which  would  of  itself  be  a  breach  of  the  trust,  provided 
the  conveyance  is  not  so  made  as  to  constitute  himself  a  bona  tide 
purchaser  from  the  trustee  for  a  valuable  consideration  and  without 
notice,  he  does  not  thereby  acquire  a  precedence  over  the  existing 
equities  which  are  prior  in  time,  because  the  act  is  necessarily  a 
in'caeh  of  trust.^     .     .     . 

§  729.  Legal  Estate  Obtained  after  Notice  of  a  Prior  Equity. — 
One  further  question  remains  to  be  examined.  It  has  already  been 
stated  as  an  essential  part  of  the  general  rule  that  the  subsequent 
ecjuitable  lien  or  other  interest  must  be  completely  acquired,  and 
of  course  the  consideration  upon  which  it  is  founded  fully  parted 
with,  without  notice  of  any  prior  equity,  in  order  that  the  holder 
may  be  protected  by  getting  the  legal  estate.  The  question  is, 
Mhether  the  legal  estate  must  also  be  obtained  before  any  notice 
is  received  of  the  prior  equity.  One  particular  case  involving  this 
question,  but  depending  upon  special  reasons,  is  well  settled.  If  a 
person  becomes  holder  in  good  faith  of  an  equitable  interest  with- 
out  notice    of  an   existing   trust,   and    afterwards,    upon    receiving 

^  In  this  country  the  pi-actical  examples  of  this  rule  would  generally,  if 
not  always,  he  instances  of  bona  fide  i)urchase  for  a  valuable  consideration, 
and  governed  by  the  doctrine  on  that  subject;  but  the  rule  does  not  require 
such  a  state  of  facts.  In  other  words,  the  rule  does  not  require  that  the  one 
who  protects  himself  by  oetting  the  legal  estate  should  be  in  all  respects  a 
bona  tide  purchaser  of  that  estate  for  a  valuable  consideration  and  without 
notice.  The  rights  of  mere  priority  and  the  rights  of  a  bona  fide  purchase  are 
by  no  means  identical. 

-'Dueber  Watch-Case  Mfg.  Co.  v.  Daugherty,  02  Ohio  St.  589,  .jT  X.  E.  4.5.5. 
yee  §§  731.  7:52. 

^Cave  V.  Cave,  1..  R.  1.5  Ch.  Div.  639,  1  Scott  .517.  Ames  Trusts  311;  Fitz- 
sinimons  v.   Ogden.   7   Cranch  2. 

'Mumford  v.  Stohwasser,  L.  R.  IS  P^q.  5.5f..  .562,  ,563;  Central  Trust  Co.  v. 
West  India  Imp.  Co.,  169  N.  Y.  314,  62  N.  E.  387.  See  Newman  v.  Newman, 
L.  R.  28  Ch.  Div.   674.  Ames  Trusts  335. 


347  coxcKitxiNCi    ri;ioi;iTii>.  §  "30 

notice  of  the  trust,  lie.  obtains  a  eonveyaiu-e  of  the  legal  estate  from 
tl'.e  trustee,  he  cannot  protect  himself  against,  nor  even  assei't  prior- 
ity over,  the  right  of  the  cestui  (]ue  trust,  for  his  act  has  necessarily 
made  him  a  party  to  a  breach  of  trust.^  Does  the  same  rule  extend 
to  all  instances  of  a  legal  estate  procured  by  the  holders  of  subsc- 
(luent  equitable  mortgages,  liens,  and  other  equitable  interests' 
There  is  some  conflict,  or  apparent  conflict,  of  opinion  upon  this 
]Htint,  but  it  all  arises,  I  think,  from  the  failure  to  distinguish  mere 
rights  of  priority  from  the  more  complete  rights  of  defense  belong- 
ing to  the  bona  fide  purchaser  for  a  valuable  consideration.  The 
confounding  of  these  two  entirely  distinct  and  separate  matters  can 
only  lead  to  a  confusion  of  decisions  and  rules.-  The  very  object 
of  the  rule  is,  that  a  person  who  has  in  good  faith  become  holder 
of  an  equitable  lien  or  interest,  on  discovering  his  danger  of  being 
postponed  to  an  outstanding  equity  already  in  the  hands  of  another, 
may  protect  himself  and  secure  his  priority  by  procuring  the  legal 
title.  Principle  and  authority  seem  to  be  agreed  that  such  a  holdiM" 
of  a  subsequent  equity,  who  obtained  it  for  value  and  Avithout 
notice,  may,  even  after  notice  of  an  earlier  equity  in  favor  of  a 
third  person,  secure  the  advantage  given  by  a  conveyance  of  the 
legal  estate,  and  thus  establish  his  own  priority.  By  this  act  the 
subsequent  holder  would  become  entitled  to  priority.  The  decisions 
and  dicta  which  conflict  with  this  conclusion  will  be  found,  upon 
examination,  to  be  dealing  with  the  alleged  rights  of  a  bona  fide 
purchaser  for  value,  and  not  with  a  mere  ((uestion  of  priority. '' 

§  730.  IV.  Notice  of  Existing  Equities. — The  doctrine  is  uni- 
versally settled,  and  has  already  been  fully  examined,  that,  among 
successive  interests  wholly  equitable,  and  between  an  earlier  equity 
and  a  sul)sequent  legal  estate,  even  when  purchased  for  a  valuable 
consideration,  the  one  who  acquires  the  subsequent  estate  or  inter- 
est with-  notice  of  the  earlier  equity  in  favor  of  another  person  will 
liold  his  acquisition  subject  and  subordinate  to  such  outstanding 
interest  or  right;  in  the  contest  for  priority  between  the  two  claim- 
ants, he  must  be  postponed;  he  takes  his  interest  burdened  with 
1he  obligation  of  recognizing,  providing  for,  and  carrying  out  the 

'  Mumford  v.  Stohwasser,  L.  R.  18  Eq.  556,  563;  Saunders  v.  Dehew,  2  Vern. 
271,  Ames  Trusts  280;  Sharpless  v,  Adams,  .32  Beav.  213;  Carter  v.  Carter, 
.3  Kay  &  .1.  017,  1   Scott  345. 

-Jn  .a  case  of  priorities  merely,  tlie  court  in  a  proper  proceeding-  awards 
the  subject-matter  to  the  various  claimants  in  the  order  of  precedence;  in 
the  other  case  it  refuses  any  relief  to  the  plaintifT  attempting:  to  establish 
his  title  or  claim  against  the  bona   fide  purcliaser. 

•'Brace  v.  Duchess  of  Marlborough.  2  P.  Wms.  491.  1  Scott  330,  3,")0:  Fitz- 
simmons  v.  Ogden,  7  Cranch.  2,  IS:  Dueber  Watcli-Case  ^Ifg.  Co.  v.  Daugherty, 
62  Ohio  St.  589,  57  X.  E.  455;  Tavlor  v.  Bus^oll    (ISOIK  1   Ch.  9. 


^  731  EQUITY   Juui.sriaDExcK.  348 

pi-evious  equity  according  to  its  nature.  This  subordinating  effect 
is  produced  alike  by  every  species  of  notice ;  actual  notice  proved 
by  direct  or  inferred  from  circumstantial  evidence,  and  construc- 
tive notice  arising  from  information  sufficient  to  put  the  prudent 
man  upon  an  inquiry, — from  possession,  from  the  contents  of  title 
deeds,  from  lis  pendens,  from  registration,  from  information  given 
to  an  agent,  or  from  any  other  cause, — when  once  established,  are 
f(.llowed  by  the  same  consequences  upon  the  rights  of  the  subse- 
quent holder  or  purchaser.  The  doctrine  applies  to  all  successive 
equities  in  the  same  subject-matter,  even  where  they  are  equal  and 
governed  by  the  order  of  time,  and  in  such  a  case  it  does  not  dis- 
turb the  priority  already  existing.  Its  special  and  more  important 
application  is  where  the  subsequent  equitable  interest  is  superior 
in  its  intrinsic  nature  or  from  some  incident,  or  where  the  subse- 
(jiient  interest  is  a  legal  estate,  or  where  it  possesses  the  advantage 
r(sulting  from  the  compliance  with  some  statutory  recjuirement.  so 
that  the  holder  thereof  would,  in  the  absence  of  notice,  be  entitled 
to  the  preference ;  and  its  effect  is  then  to  defeat  the  precedence 
which  would  otherAvise  have  existed,  and  to  restore  the  priority 
fj'om  order  of  time  among  the  successive  claimants.  By  far  the 
most  frequent  application  of  the  doctrine  in  this  country  has  been 
in  connection  with  the  recording  acts,  where  the  superiority  of 
title  or  of  lien  otherwise  acquired  by  the  recording  of  a  convey- 
ance, mortgage,  or  other  instrument  has  been  held  to  be  lost  by  rea- 
son of  a  notice  of  some  outstanding  unrecorded  estate,  title,  mort- 
gage, lien,  or  other  equitable  interest.  As  the  doctrine  of  notice, 
both  wnth  respect  to  its  nature  and  its  effects,  has  already  been 
discussed  as  fully  as  my  limits  will  permit,  I  shall  add  nothing 
farther  here  except  a  few  cases  placed  in  the  foot-note  bj^  way  of 
illustration.^ 

§  731.  V.  Effect  of  Fraud  or  Negligence  upon  Priorities. — A 
priority  which  would  otherwise  have  existed  maj^  also  be  dis- 
turbed and  defeated  by  fraud  or  negligence  in  obtaining  the  in- 
terest or  in  failing  to  secure  it  properly.  It  is  therefore  a  settled 
doctrine,  that  among  successive  equities  otherwise  equal,  and  also 
between  a  legal  title  or  superior  equitable  interest  earlier  in  time 
and  a  subsequent  equity,  the  holder  of  the  interest  which  is  prior 
in  time  and  would  be  prior  in  right  may  lose  his  precedence,  and 
be  postponed  to  the  subsequent  one  by  his  own  fraud  or  negligence, 
or  that  of  his  agent.  The  same  rule  applies  to  the  holder  of  a  sub- 
sequent legal  estate  who  would  otherwise  have  the  precedence  over 

'Greaves  v.  Tofield,  L.  R.  14  Cli.  D.  653,  1  Scott  285;  School  District  v. 
Taylor,  19  Kan.  287;  Durant  v.  Crowell,  97  X.  C.  3G2,  2  S.  E.  541.     See  ante, 

§  688. 


349  CONCEi;XI.\(i     I'liiOHITIES.  §  V)'^ 

a  prior  equitable  interest;  lie  may  be  postponed  by  reason  of  his 
neglect  or  fraud.  While  the  general  rule  has  been  fully  adopted 
by  the  American  courts,  the  cases  involving  it  are  much  less  fre- 
quent in  this  country  than  in  England,  because  almost  every  kind 
of  interest  in  land  is  within  the  operation  of  the  recording  acts, 
and  may  be  protected  by  a  record.  Most  instances  of  laches,  there- 
fore, coming  before  our  courts  have  arisen  from  a  neglect  to  record 
an  instrument,  or  to  comply  with  the  provisions  of  some  statute 
analogous  to  that  of  recording.^  The  effects  of  negligence  and 
want  of  diligence  in  postponing  or  even  defeating  the  rights  of  an 
assignee  of  a  thing  in  action,  earlier  in  point  of  time,  have  already 
been  described.-  One  instance  which  may  be  regarded  as  an  ex- 
ample of  fraud,  although  no  actual  fraudulent  intent  is  essential,  is, 
where  a  prior  encumbrancer,  upon  inquiry  being  made  by  a  person 
interested,  denies  the  existence  of  his  lien,  or  where  the 
owner  of  the  legal  estate  denies  his  title  under  like  cir- 
cumstances, or  even  keeps  silent  and  does  not  announce  his  title  to 
an  innocent  person  who  is  making  expenditures,  or  advancing 
money  upon  the  supposed  security  of  the  property." 

§  732.  Effect  of  Gross  Negligence. — It  is  now^  settled  by  the 
English  decisions,  after  some  fluctuation,  that  where  a  person  has 
become  entitled  to  the  precedence  because  he  has  acquired  the  prior 
legal  estate,  or  because,  being  subsequent  in  time,  he  has  fortified 
his  equity  by  obtaining  the  legal  estate,  he  cannot  lose  such  pre- 
cedence and  be  postponed,  unless  by  himself  or  by  his  agent  he  is 
chargeable  with  fraud  or  with  gross  negligence;  mere  neglect  will 
not  sutfice.^  Whether  the  same  requirement  of  gi'oss  negligence 
aj'plies  to  successive  interests  which  are  all  purely  ecpiitable,  or 
whether  mere  negligence  is  sufficient  to  affect  the  priority,  [was 
long]  unsettled  by  the  decisions. - 

^  Kd'ects  of  fraud:  See  ante,  §f)8G;  Eggeman  v.  Eggeman,  SJ  Mich.  43G; 
Hooper  v.  Central  Trust  Co.,  81  Md.  ,559,  32  Atl.  505,  29  L.  R.  A.  2(52.  Effects 
of  negligence:  See  ante,  §687;  City  Council  of  Charleston  v.  Ryan,  22  S.  C. 
339,  53  Am.  Rep.  713;  Heyder  v.  Excelsior  B.  &  L.  Ass'n,  42  N.  J,  Eq.  403, 
8  Atl.  310,  59  Am.  Rep.  40,  H.  &  B.  70. 

^See  ante,   §§  698-702. 

■^  These  instances  may  undoubtedly  be  referred  to  the  doctrine  of  equitable 
estoppel ;  but  the  notion  of  constructive  fraud  lies  at  the  foundation  of  that 
doctrine:  Stronge  v.  Hawkes.  4  De  Gex,  V.  4  (i.  18(i,  4  De  Gex  &  J.  ()32 ; 
Lee  V.  Munroe,  7  Cranch,  366,  368 ;  Fay  v.  Valentine,  12  Pick.  40,  22  Am.  Dec. 
397.     See,  also,  ante,  §686;  post,  §8i8. 

*  See  Hewitt  v.  Loosemore.  9  Hare  449;  .\orthern  Counties,  etc.,  Co.  v. 
Whipp.  L.  R.  20  Ch.  Div.  482.  1  Scott  353;  in  re  lngh.am  (1893),  1  Ch,  3.52; 
Lloyd's  Bkg.  Co.  v.  Jones,  L.  R.  29  Cli.  D.  221.  Ames  Trusts  272. 

=  The  case  of  Farrand  v.  Yorkshire  Banking  Co.,  J>.  R.  40  Ch.  Div.  1S2, 
settled    this    question    in    Englantl.      It    was    there    lieid    tiiat    gross    iiegligen«e 


§  'jg-l  EC^UiTY     JLKJSl'ltLDENCK.  350 

§  733.  Assignments  of  Mortgages—  Rights  of  Priority  Dspsnding 
upon. — An  assignment  of  a  mortgage  is,  throughout  this  country, 
with  the  exception,  perhaps,  of-a  very  few  states,  a  mere  transfer 
of  a  thing  in  action,  and  the  assignee  can  acquire  no  higher  rights 
as  against  the  mortgagor  than  those  possessed  by  the  original  mort- 
gagee.^ Such  assignments  are  generally  Mnthin  the  operation  of 
the  recording  statutes,  either  in  express  terms,  or  by  a  judicial 
interpretation  of  the  statutory  language,  holding  that  an  assign- 
ment is  a  species  of  conveyance.^  The  record  of  an  assignment, 
like  that  of  any  other  instrument,  does  not  operate  as  a  norice 
retrospectively;  it  is  not  therefore  a  constructive  notice  of  the 
assignee's  interest  to  the  mortgagor,  so  as  to  destroy  the  effect  of 
payments  made  by  him,  without  actual  notice  to  the  mortgagee  f 
but  a  mortgagor  who  obtains  a  discharge  from  the  mortgagee 
iritliout  niiy  pfitjiiicnt  is  not  protected  as  against  the  assignee.'* 

§  734.  Unrecorded  Assignment — Rights  of  the  Assignee. — When 
a  mortgage  dul}'  recorded  is  assigned,  that  original  record  continups 
to  be  constructive  notice  of  the  existence  of  the  lien  to  all  subse- 
■luent  purchasers  and  encumbrancers  of  the  same  premises,  and  the 
assignee  does  not  lose  his  precedence  over  such  parties  by  a  failure 

amounting  to  fraud  is  not  necessary,  but  tliat  negligence  such  as  an  omission 
to  obtain  possession  of  or  to  make  inquirii-s  concerning  the  title  deeds  may  be 
sufficient.  !See,  also,  Taylor  v.  London  and  County  Banking  Co.  (IDOl),  2  Cli. 
231,  260;   In  re  Castell  &  Brown    (1898),   1   Ch.  315. 

^  Wanzer  v.  Cary,  70  X.  Y.  520.  See  Merchants'  Bank  v.  Weill,  103  X.  Y. 
486,  79  Am.  St.  Rep.  605,  57  N.  E.  749.  In  the  absence  of  notice  of  the  assign- 
ment to  the  mortgagor,  or  of  facts  putting  him  on  inquiry  as  to  an  assignment, 
he  is  protected  in  payments  subsequently  made  by  him  to  the  mortgagee:  See 
ante,  §702;  Towner  v.  McClelland,  110  111.  542.  It  is  not  usually  necessary  for 
the  morfoagor's  protection  that  he  should  require  the  production  of  the  mortgage 
or  bond  or  other  non-negotiable  instrument  secured  thereby  at  the  time  of  mak- 
ing payment:  Vann  v.  Marbury,  100  Ala.  438,  14  South.  273,  46  Am.  St.  Rep. 
70.  23  L.  R.  A.  325.  Assignment  of  negotiable  note  secured  b\-  mortgage;  see 
ante,  §  704,  note. 

-  Westbrook  V.  Gleason,  79  N.  Y.  23;  Swasey  v.  Emerson,  168  Mass.  118, 
40  N.  E.  420,  60  Am.  St.  Rep.  308;  Citizens'  State  Bank  v.  Julian,  153  Ind. 
055.  55  N.  E.  1007.  It  necessarily  follows  that  when  a  mortgage  is  assigned, 
and  the  assignment  is  not  recorded,  and  tlie  mortgagee  afterwards  satisfies 
the  mortgage  of  record,  the  lien  is  thereby  destroyed  as  against  a  bona  fide 
purchaser  or  encund)rancer,  without  notice,  of  the  premises:  Bowling  v.  Cook, 
39  Iowa  200:  Lewis  v.  Kirk,  28  Kan.  497,  42  Am.  Rep.  173. 

=  See  ante.  §657:  IMurphy  v.  Barnard,  162  Mass.  72.  38  X.  E.  29,  44  Am. 
St.  Rep.  340:  Williams  v.  Keyes.  90  Mich.  290,  51  X.  \V.  520,  30  Am.  St. 
Rep.   438. 

«See  Earned  v.  Donovan,  155  X.  Y.  341.  49  X"^.  E.  942.  The  record  of  an 
assignment  is,  however,  a  constructive  notice  to  subsequent  purchasers  and 
encumbrancers  of  the  mortgaged  premises:  Robbins  v.  Larsen,  69  Minn.  436;^ 
72  X.  W.  456,  65  Am.  St.  Rep.  572. 


ool  C0Nci:i;xiN(i    pkiouities.  §  T;U 

to  record  the  assii;imient.^  A  conveyance  of  the  mortgaged  preniiscs 
to  the  mortgagee  after  he  had  assigned  the  mortgage  would  not 
work  a  merger,  but  the  rights  of  the  assignee  would  remain  unaf- 
fected.- If  the  mortgagee,  having  thus  acquired  title  aftei-  the 
assignment,  should  in  turn  convey  the  mortgaged  premises  to  a 
third  person  without  knowledge  nor  actual  notice  of  the  assign- 
ment, it  is  held  that  such  grantee  would  be  charged  with  construc- 
tive notice  and  would  take  subject  to  the  rights  of  the  assi^gnee,  be- 
cause the  records  would  give  him  notice  of  the  facts  sufficient  to 
put  a  reasonable  nu\n  upon  an  inquiry,  and  a  due  inquiry  would 
necessarily  lead  to  a  discovery  of  the  real  situation.-"  If  a  second 
mortgagee,  with  notice  of  a  prior  unrecorded  mortgage,  assigns  to 
a  bona  tide  purchaser  without  notice,  but  the  prior  mortgage  is 
recorded  before  the  assignment,  the  assignee  would  fail  to  secure 
a  precedence.'*  Since  a  mortgage  is  a  thing  in  action,  an  assignee, 
even  without  notice,  will  be  subject  to  all  outstanding  equities  and 
claims  in  favor  of  third  persons  which  were  existing  and  available 
against  the  assignor,  wherever  the  general  doctrine  prevails  that 
all  assignments  of  things  in  action  are  subject  to  such  latent  equi- 
ties."' Questions  of  priority  might  arise  between  successive  assignees 
of  the  same  mortgage  from  the  same  assignor.  If  an  assignment  is 
perfected  by  an  actual  delivery  of  the  mortgage  itself  and  of  the 
bond,  note,  or  other  evidence  of  debt  secured,  even  though  it  be 
not  recorded,  a  subsequent  assignee  wouM  necessarily  be  put  upon 
an  inquiry,  and  chargeable  with  constructive  notice,  and  could  olv 
tain  no  precedence  even  b}^  a  first  record. °  In  other  instances  Avhere 
the  assignments  are  equal,  made  for  a  valuable  consideration  and 
without  notice,  if  all  were  unrecorded,  the  earliest  in  order  of  time 
prevails;  the  assignee  for  value  and  without  notice  Avho  first  ob- 
tains a  record  secures  thereby  the  title;  a  record  when  made  is  a 
constructive  notice  to  all  subsequent  assignees  of  the  same  mort- 
gage.' 

MVilson  v.  Canipholl,   110  Mich.  580,  OS  X.  W.  278,  35  i...  R.  A.  544. 

'Purdy  V.  Huntinjjton,  42   N.   Y.  334.   1   Am.   Rep.  532. 

■"  Purely  V.  Huntington,  42  X.  Y.  334,  1  Am.  Rep.  532:  Dcnmtli  v.  Old  Town 
Jiank,  85  Md.  315,  37  Atl.  206,  00  Am.  St.  Rep.  322. 

MVestbrook  v.  (Jleason,  79  X.  Y.  23;  Butler  v.  Bank  of  Mazejipa.  !t4  Wis. 
351.  08   X.   W.   998.     See  Decker  v.  Boice,  83   X.   Y.   215. 

•'■See  ante,  §§  708,  709,  714:  Conover  v.  Van  :Mater,  18  X.  .1.  Eq.  481;  Kcrno- 
han  V.  Durham,  48  Oh.  St.  1,  26  X.  E.  982.  12  L.  R.  A.  41.  See  contra,  ante, 
§715:  Mullanphy  Sav.  Bank  v.  Seholt,  135  111.  055.  26  X.  E.  040,  25  Am.  St. 
Rep.   401. 

"See  IMiller  Brewing-  Co.  v.  :Manasso.  09  Wis.  99.  67  Am.  St.  Rep.  854,  74 
X.  W.  535:   Kernohan  v.  Durham.  48  Ohio  St.   1.  26  X.  E.  982.   12  L.  R.  A.  41. 

^^lurphy  V.  Barnard.  102  :\rass.  72.  44  Am.  St.  Rep.  340.  38  X.  E.  29;  Himrod 
V.   Oilman.    147    111.   293,  35  X.   E.   373,  ailirming  44   111.   App.   516. 


EQUITY     JURISPRUDENCE.  352 


SECTION  VII. 

CON'CERNING  BONA  FIDE  PURCHASE  FOU  A  VALUABLE  CONSIDERA- 
TION AND  WITHOUT  NOTICE. 

ANALYSIS. 

§  735.  General    meaning    and    scope    of    the    doctrine. 

§  736.  General   effect   of   the   i-ecording   acts. 
>j§   737-744.      First.     Rationale   of   the  doctrine. 

§  738.  Its  purely  equitable  origin,  nature,  and  operation. 

§  739.  It  is  not  a  rule  of  property  or  of  title. 
*!§   740,  74L  General  extent  and  limits;   kinds  of  estates  protected. 
SS   742,  743.  Phillips  v.  Pliillips;  formula  of  Lord  Westbury. 
S§  745-762.  Second.     What   constitutes   a   bona   fide  purchase. 
§§  746-751.  1.  The  valuable  consideration. 

§  747.   1.  What    is    a    valuable    considei'ation ;    illustrations. 
S§  748,749.  Antecedent   debts,   securing  or   satisfying;    giving  time,   etc. 
§§   750.751.  2.  Payment;    eflect   of   part   payment;    giving   security. 
SS  752-761.  11.  Absence  of  notice. 

§   753.   1.  Effects  of  notice  in  general. 

§  754.  .Second    purchase    trithout    notice    from    first    purchaser    irith.    also 
second   purchaser  ivith  from   first   purchaser   without  notice. 

S   755.  2.  Time   of  giving   notice;    English   and   American   rules. 

§  756.  Efiect  of  notice  to  a   bona  fide  purchaser  of  an  equitable   intei'est 
before  he  obtains  a  deed  of  the  legal  estate. 
*)§   757-761.  3.  Recording    in    cpnnection    with    notice. 

§  758.  Interest    under    a    prior   unrecorded    instrument. 

§   759.  Requisites    to    protection    from    the    first    record    by    a    subsequent 
purchaser. 

§   760.  Pui-chaser  in  good  faith  with  apparent  record  title  from  a  grantor 
charged   with  notice  of  a   prior  unrecorded  conveyance. 

§   761.  Break    in    the    record    title;    when    purchaser    is    stifl    charged    witli 
notice  of  a  prior  instrument. 

§   762.  111.  Good   faith. 
§§  763-778.  Third.     Efi'ects  of  a  bona  fide  purchase  as  a  defense. 

§  764.  1.  .Suits  by  holder  of  legal  estate  under  the  auxiliary  jurisdiction 
of    equity,    discovery,    etc. 

§  765.  Same;    exceptions   and   limitations. 
§§  766-774.  11.  Suits    by    holder   of   an    equitable   estate    or    interest    against    a 
purchaser   of   the   legal   estate. 

§   767.  Legal   estate  acquired  by  the  original   purchase. 

§  768.  Purchaser   first   of  an   equitable   interest   subsequently   acquires   the 
legal    estate;    tabula    in    naufragio. 

§  769.  Extent    and    limits   of   this    rule. 

§  770.  Purchaser    acquires    the    legal    estate    from    a    trustee. 
S§  771-773.  This    rule   as    applied    in   the    United    States. 

§  774.  Other  instances;   purchase  at  execution  sale;    purchase  of  things  in 
action. 
S§  775-778.  ill.  Siiits  by  holders  of  an  "equity." 

§  776.  For   relief  against   accident   or   mistake. 
SS  777,778.  For   relief   from   fraud,   upon   creditors,   or   between   parties. 


353  COXCERXIXG     BONA    IIDK     I'lHCliASE.  §  735 

§§  779-783.  Fourfh.     Aflinnative  relief  to  a  bona  tide  purchaser. 

f  779.  Cileneral    rule. 

§§  780-782.  Illustrations. 

§  783.  Removing  a  cloud  from  title. 

§§  784, 785.  Fifth.     Mode    and    form    of    tlie    defense. 

§   784.  The    pleadings. 

§  785.  Necessary    allegations    and    proofs. 

§  735.     General  Meaning-,  Scope,  and  Limitations  of  the  Doctrine. 

— This  section  will  deal  with  the  equitable  doctrine  of  bona  fide 
jmrchase  for  a  valuable  consideration  and  without  notice.  The 
doctrine  in  its  original  form  was  exclusively  equitable.  Questions 
of  priority  cannot,  as  has  already  been  stated,  arise  between  succes- 
sive adverse  estates  which  are  purely  lesral,  and  therefore  cannot, 
independently  of  statutory  permission,  come  before  courts  of  law 
for  settlement;  such  estates  must  stand  or  fall  upon  their  own  in- 
trinsic merits  and  validity.^  A  contest  concerning  ])riority  or  pre- 
cedence properly  so  called  can  only  exist  vxiiere  one  of  the  two 
claimants  holds  a  legal  and  the  other  an  equitable  title,  or  where 
both  hold  equitable  titles,  and  must  therefore  belong  to  the  original 
exclusive  jurisdiction  of  equity.  Courts  of  equity  do  not  have  juris- 
diction of  suits  brought  merely  to  establish  one  purely  legal  title 
against  another  and  conflicting  legal  title.-  In  the  United  States 
these  elementary  notions  seem  to  have  been  sometimes  overlooked, 
snd  the  courts  sometimes  seem  to  have  extended  the  doctrine  of 
bona  fide  purchase  farther  than  the  acknowledged  principles  of 
equity  would  warrant.  The  tendency  is  marked  and  strong  in  the 
courts  of  many  states,  even  when  acting  as  tribunals  of  law,  to 
make  the  doctrine  a  legal  rule  of  property,  and  to  apply  it  alike  to 
persons  who  have  acquired  either  a  legal  or  an  equitable  title  to 
chattels  and  things  in  action,  as  well  as  to  those  who  have  acquired 
any  legal  or  equitable  interest  in  land.  A  subsequent  holder,  even 
for  a  valuable  consideration  and  without  notice,  has  certainly  no 
higher  right  than  a  prior  holder  equally  innocent  and 
with  an  equally  meritorious  ownership.  American  courts 
8eem  sometimes  to  have  acted  upon  exactly  the  opposite  no- 
tion, and  to  have  assumed  that  a  subsequent  title  was  necessarily 
the  better  one.  When  the  original  legal  owner  has  done  or  omit- 
ted something  by  which  it  was  made  possible  that  his  property 
should  come  into  the  hands  of  a  bona  fide  holder  by  an  apparently 

'  See    supra,    §  679. 

-Such  suits  are  often  called  "ejectment  bills."  See  vol.  1,  §§  176-178;  Cole  v. 
Mette,  65  Ark.  503,  47  S.  W.  407,  67  Am.  St.  Rep.  945.  Equity  has  concurrent 
jurisffiction  in  certain  classes  of  suits  dealing  with  legal  titles  alone,  as  suits 
fov  slower.  In  regard  to  them  the  doctrine  of  bona  fide  purchase  is  applied 
in  a  special  and  ut^uHar  manner. 


§  T38  EQUITY    JUKIsrEUDEXCE,  354 

valid  title,  it  may  be  just  to  regard  him  as  estopped  from  asserting 
liis  ownership,  and  thus  to  protect  the  subsecjuent  purchaser.  But 
when  the  i)rior  legal  owner  is  wholly  innocent,  has  done  and  omit- 
ted nothing,  it  certainly  transcends,  even  if  it  does  not  violate,  the 
principles  of  equity  to  sustain  the  claims  of  a  subsequent  and  even 
bona  fide  purchaser." 

§  736.  Effects  of  the  Recording  Acts. — The  most  extensive  and 
important  change,  however,  in  the  United  States  has  been  produced 
b}"  the  recording  acts.  They  have  extended  the  doctrine  of  bona 
fide  purchase  to  all  conveyances  and  mortgages,  and  often  to  execu- 
tory contracts,  and  to  every  instrument  which  can  create,  transfer, 
or  affect  legal  estates  or  equitable  interests,  liens,  and  encumbrances, 
and  have  therefore  brought  it  within  the  cognizance  of  the  courts 
of  law  as  a  rule  for  determining  the  validity  of  legal  titles.  The 
greatest  diversity  is  found  in  the  statutory  provisions  of  the  vari- 
ous states,  and  a  consequent  diversity  prevails  among  the  local 
rules  which  define  the  resulting  rights  of  the  bona  fide  purchaser. 
In  some  they  are  conferred  upon  judgment  creditors,  upon  all  pur- 
chasers at  execution  sales,  and  even  upon  those  who  have  secured 
the  first  record  although  charged  with  notice.  It  would  be  im- 
possible, within  any  reasonable  limits,  to  state  all  the  results  of 
these  statutes,  and  to  formulate  all  the  special  rules  which  have 
been  derived  from  them  in  the  different  states.  So  far  as  the  doc- 
trine of  bona  fide  purchase  has  been  made  a  rule  of  laiv.  either  b}' 
the  operation  of  the  recording  acts  or  by  the  independent  action  of 
the  courts,  it  does  not  properly  come  Avithin  the  scope  of  a  treatise 
upon  e(iuity  jurisprudence.  I  shall  therefore  explain  the  principles 
of  the  etjuitable  doctrine  as  established  in  the  United  States  and  in 
England,  and  describe  the  general  applications  and  modifications 
made  necessary  by  the  common  .Ajuerican  system  of  registration. 
The  minute  effects  growing  out  of  the  differing  tyj^es  of  legislation 
must  be  passed  over,  except  so  far  as  they  have  been  mentioned 
in  the  foregoing  sections  upon  notice  and  priorities.  The  subject 
will  be  discussed  under  the  following  heads:  1.  Rationale  of  the 
doctrine;  2.  What  constitutes  a  bona  fide  purchase;  3.  Effects  of 
the  doctrine  as  a  defense;  4.  Cases  in  which  courts  of  equity  give 
affirmative  relief;  5.  How  the  bona  fide  purchaser  must  avail 
himself  of  his  position. 

§  737.     First.     Rationale  of  the   Doctrine.     .     .     . 

§  738.  Equitable  Origin,  Nature,  and  Operation  of  the  Doctrine. 
■ — The  protection  given  to  the  bona  fide  purchaser  had  its  origin 
exclusively  in  equity,  and  is  based  entirely  upon  the  fact  that  tlu^ 

"See  Mac(4regor  v.  Tliompson,  7  Tex.  Civ.  A])p.  32,  2(i  S.  W.  040;  Williams 
iv.  Rand,  9  Tex.  Civ.  App.  031,  30  S.  \V.  50'J. 


355  COXCERXIXG    BOXA    FIDE    PUKCliASE.  §  Tol) 

jurisdiction  of  e(iuity  is  aiieillaiy  and  supplemental  to  that  of  the 
law,  and  upon  the  conception  that  a  court  of  chancery  acts  solely 
upon  the  cunscieitcc  of  litiyaiit  parties,  by  compelling'  the  defendant 
to  do  what,  and  only  what,  in  foro  conscientiae  he  is  bound  to  do. 
]f  the  relations  between  the  two  contestants  standing  before  the 
court  of  chancer}^  are  such  that,  in  equity  and  good  conscience,  the 
l)iaintift'  ought  to  obtain  the  aid  which  he  asks,  and  the  defendant 
ought  to  do  or  suffer  what  is  demanded  of  him,  then  the  court  will 
interfere  and  grant  the  relief;  if  the  relations  are  not  of  this  char- 
acter, then  the  court  will  withhold  its  hand,  and  will  leave  the 
parties  to  the  operation  of  strict  legal  rules,  and  to  the  remedies 
conferred  by  the  legal  tribunals.  All  equitable  principles  and  doc- 
trines had  their  origin  in  this  conception^  however  much  it  may  some- 
times be  overlooked  by  courts  at  present  in  the  administration  of 
the  doctrines  which  have  been  thus  established.  The  protection 
given  to  the  bona  fide  purchaser  simply  means,  therefore,  that  from 
the  relations  subsisting  between  the  two  parties,  especially  that 
which  is  involved  in  the  innocent  position  of  the  purchaser,  equity 
refuses  to  interfere  and  to  aid  the  plaintiff'  in  what  he  is  seeking 
to  obtain,  because  it  would  be  unconscientious  and  inequitable  to 
do  so,  and  the  parties  must  be  left  to  their  pure  legal  rights,  lia- 
bilities, and  remedies;  the  court  will  not  aid  either  against  the  other. 
That  this  is  the  true  rationale  is  shown  by  an  overwhelming  weight 
of  authority.  In  the  vast  majority  of  cases  the  protection  is  only 
given  to  a  defendant,  and  as  a  consequence  the  doctrine  itself  is 
commonly  spoken  of,  and  ordinarily  treated,  as  essentially  a  matter 
of  defense.  The  very  few  instances  in  which  affirmative  relief  is 
granted  to  the  bona  tide  purchasers  are  exceptional :  they  rest  upon 
their  special  facts,  and  arise  from  the  fraud  of  the  defendant  against 
whom  the  relief  is  ? warded.^ 

§  739.  The  Doctrine  is  not  a  Rule  of  Property  or  of  Title.— In 
applying  the  docti'ine  of  bona  fide  purchase — and  this  is  the  very 
csi^ence  of  the  doctrine — equity  does  not  intend  to  pass  upon  and 
decide  tJie  merits  of  tJie  two  litigant  parties:  it  does  not  decide  that 
the  title  of  the  defendant  is  valid,  and  therefore  intrinsically  the 
better  and  superior  to  that  of  the  plaintiff.  On  the  contrary,  the 
protection  given  by  way  of  defense  theoretically  assumes  that  the 
iilJe  of  the  piircjwser  is  really  defective  as  against  that  of  his  oppon- 
ent: at  all  events,  the  court  of  equity  wholly  ignores  the  question 
of  validity,  declines  to  examine  into  the  intrinsic  merits  of  the  two 
claims,  and  bases  its  action  upon  entirely  different  considerations.^ 

^Spe  infra,   §S  TTO-TSr,. 

'Tills  tnitli.  so  fundiinu'iilal,  yd  so  oft  on  ovfvlookod,  was  well  stated  by  Lord 
Eldon  in  tlie  celebrated  case  of  \Valh\yn  v.  J>ee,  9  Ves.  24,  33,  34. 


§  740  EQUITY     JURISPRUDENCE.  356 

If  a  plaintiff,  holding  some  equitable  interest  of  right,  sues  to  en- 
force it  against  a  defendant  who  has  in  good  faith  obtained  the 
legal  estate,  the  court  simply  refuses  to  interfere  and  do  an  un- 
conscientious act  by  depriving  him  of  the  advantage  accompanying 
such  an  innocent  acquisition  of  the  legal  title.  On  the  other  hand, 
if  the  plaintiff  is  the  legal  owner,  and  sues  to  obtain  some  equitable 
relief  against  a  defendant  who  is  the  innocent  holder  of  some  equit- 
able estate  or  interest,  the  court  in  like  manner  simply  refuses  to 
do  an  unconscientious  act  by  giving  any  aid  to  the  plaintiff,  but, 
without  at  all  deciding  or  even  examining  the  intrinsic  merits  of 
their  claims,  leaves  him  to  whatever  rights  would  be  recognized 
and  whatever  reliefs  granted  by  a  court  of  law.  It  is  thus  seen  that 
the  doctrine  of  bona  fide  purchaser  as  administered  by  equity 
■is  not  in  any  sense  a  rule  of.  property.-  Whenever  the  relations  be- 
tween the  litigants  are  of  such  a  nature,  and  the  suit  is  of  such  a 
kind,  that  a  court  of  equity  is  called  upon  to  decide,  and  must  de- 
cide, the  merits  of  the  controversy,  and  determine  the  validity  and 
sufficiency  of  the  opposing  titles  or  claims,  then  it  does  not  admit 
the  defense  of  bona  fide  purchase  as  effectual  and  conclusive.  The 
foregoing  description  shows  that  it  is  wholly  unwarranted  by  the 
settled  principles  of  equity  for  a  court  to  sustain  and  enforce  the 
siihsequent  legal  estate  acquired  by  A  in  any  kind  of  property  or 
thing  in  action,  merely  because  he  is  a  bona  fide  purchaser  for  a 
valuable  consideration  without  notice,  against  the  prior  legal  and 
eijually  innocent  owner.  B,  or  even  to  sustain  A's  defense  as  a  bona 
fide  purchaser  in  a  suit  brought  by  B. 

§  740.  General  Extent  and  Limits — Kinds  of  Estates  Protected. 
— Such  being  the  rationale  of  the  doctrine,  it  remains  to  consider 
the  general  extent  and  limits  of  its  operation ;  and  this  chiefly  in- 
volves the  question,  To  what  kinds  of  estates  held  by  the  bona  fide 
purchaser  will  it  be  applied?  It  has  never  been  doubted  that  the 
protection  Avill  be  extended  to  the  defendant  in  a  suit  brought  by 
the  holder  of  a  prior  equitable  estate  or  interest  against  the  sub- 
sequent bona  fide  purchaser  of  a  legal  estate,  who  acquired  such 
estate  at  the  time  of  and  by  means  of  his  original  purchase.^  It  is 
also  generally  extended,  in  the  similar  suit  by  the  holder  of  a  prior 
equitable  interest,  to  a  defendant  who,  having  originally  been  the 
"bona  fide  purchaser  of  a  subsequent  equity,  has  afterwards  obtained 

=  Sengfelder  v.  Hill,  21  W.ash.  371,  .58  Pac.  250:  Knoblnck  v.  Mueller.  12f? 
111.  554,  17  N.  E.  69fi,  H.  &  B.  80:  United  States  v.  Detroit  Timber  &  L.  Co. 
(C.  C.  A.).   131   Fed.  fifiS.  07S. 

'Post.  S  767:  Diokorson  v.  Tillincrhast.  4  Paige  215.  25  Am.  Dec.  528:  Senfj- 
f elder  v.  Hill,  21  Wash.  371.  58  Pac.  250:  Home  8av.  &  State  Bank  v.  Peoria 
Agricultural   k   Trotting   Soc,   20(i   HI.    9,   «9   X.   E.    17,   99   Am.   8t.   Pep.    132. 


o57  COXCEKXINO     BONA    FIDE    I'lliCllASE.  §  142 

an  outstanding  leiial  estate.-  The  vital  question  is,  whether  the 
defense  Avill  also  avail  on  behalf  of  a  defendant  who  has  acciiiired 
an  equitable  interest  merely,  against  a  plaintift*  who  holds  a  prior 
legal  estate;  and  upon  this  question,  decisions  and  judicial  dicta, 
especially  the  earlier  ones,  are  in  direct  conflict.^     .     .     . 

§  741.  Same — When  the  Doctrine  does  not  Apply. — Notwith- 
standing the  numerous  authorities  referred  to  in  the  preceding 
paragraph,  and  the  sweeping  expressions  of  judicial  opinion,  it  is 
certain  that  the  doctrine  is  subject  to  limitation;  it  is  settled  that 
in  some  classes  of  suits  a  defendant  having  only  an  equitable  in- 
terest cannot  be  protected  by  his  position  as  a  bona  fide  purchaser. 
Thus  in  an  action  for  foreclosure  brought  by  a  prior  legal  mortgagee, 
holding,  of  course,  the  legal  estate,  against  a  subsequent  equitable 
mortgagee,  the  fact  that  the  latter  acquired  his  equitable  interest 
in  good  faith  for  a  valuable  consideration  and  without  notice  is  no 
defense.^  It  is  also  a  well-established  and  even  familiar  rule  that  in 
the  numerous  cases  between  the  holders  of  successive  and  equal 
equities,  where  the  holder  of  a  prior  equitable  interest  is  seeking 
to  establish  or  enforce  his  right,  the  defense  of  bona  fide  purchase 
will  not  avail  for  the  holder  of  a  subsequent  equity  against  whom 
the  suit  is  brought.- 

§  742.  Phillips  v.  Phillips — Formula  of  Lord  Westbury. — Amidst 
this  apparent  conflict  and  real  uncertainty,  various  judges  had  at- 
tempted to  find  a  mode  of  reconcilement,  and  to  formulate  a  rule 
which  should  furnish  a  universal  criterion.  It  remained,  however, 
for  Lord  Westbury  to  bring  order  out  of  the  confusion,  and  by  his 
remarkable  grasp  of  principles  and  wonderful  power  of  generaliza- 
tion to  reduce  the  doctrine  into  a  universal  formula,  so  accurate 
and  comprehensive  that  it  has  been  taken  by  most  subsequent  text- 
writers  as  the  basis  of  their  discussions,  and  has  been  accepted  by 
subsequent  judges  almost  without  exception.^  This  formula  groups 
the  cases  in  which  the  protection  of  a  bona  fide  purchaser  is  given  to 
defendants  into  the  three  folloAving  classes :  1.  Where  an  application 
is  made  to  the  auxiliary  jurisdiction  of  the  court  by  the  possessor  of 

^See  post,  §§768-773.  and  cases  cited. 

'See  e.  g.,  Larrowe  v.  Beam.  10  Ohio  St.  498;  Butler  v.  Douglas,  3  Fed. 
fil2;  Basset  v.  Nosworthy,  Cas.  t.  Finch,  102,  2  Lead.  Cas.  Eq.  1,  1  Scott  340. 
408:   Collyer  v.  Finch.  .5  H.  L.  Cas.  90.5,  per  Lord  Cranworth. 

'Finch  V.  Shaw,  19  Beav.  500:  affirmed  sub  nom.  Colyer  v.  Finch.  5  H.  L. 
("as.   00.5. 

^Phillips  V.  Phillips.  4  Be  Gex,  F.  &  J.  208.  215,  21(5,  H.  &  B.  72,  Ames 
Trusts  331,  1  Scott  333.  511,  per  Lord  Westbury.     See  ante,  §§414,  682. 

'Phillips  V.  Phillips,  4  De  Gex,  F.  8:  J.  208.  1  Scott  333,  511.  H.  &  B.  72, 
Ames  Trusts  331:  Peabody  v.  Fenton,  3  Barb.  Ch.  451,  464;  Knoblock  v. 
Mueller,  123  111.  5.54,  17  N.  E.  696,  H.  &  B.  80. 


§  745  EQUITY     JURISrRUDENCE.  353 

a  legal  title;  as  ag'ainst  a  purchaser  for  value  without  notice,  a 
court  of  e(|uity  gives  no  assistance  io  the  legal  title.  The  term 
''auxiliary  jurisdiction"  is  here  used  in  a  sense  somewhat  broader 
than  that  commonly  given  to  it  by  text-writers.  To  this  first  rule 
there  are,  however,  certain  most  important  exceptions.  It  does 
not  apply  to  suits  in  which  the  court  exercises  a  legal  jurisdiction 
concurrently  with  courts  of  laAv,  nor  to  suits  in  which  the  court 
gi\es  to  a  holder  of  the  legal  title  some  equitable  remedy  belonging 
to  its  exclusive  general  jurisdiction.-  2.  Where  the  plaintiff,  holding 
an  equitahle  estate  or  interest,  is  seeking  to  enforce  it  against  a 
Tiurchaser  of  the  legal  title,  including  those  cases  where  there  are 
several  successive  purchasers  or  encumbrancers,  all  equitable,  and 
tlie  defendant  Avho  is  later  in  time  has  obtained  an  outstanding 
]egal  estate,  or  some  other  legal  advantage,  often  called  the  "tabula 
in  naufragio.""  3.  Where  the  plaintiff  is  seeking  to  enforce  some 
"equity"  as  distinguished  from  an  equitable  estate,  as  the  reforma- 
tion of  a  deed  on  account  of  mistake,  or  the  setting  it  aside  on  the 
ground  of  fraud.* 

>;  744.  The  explanation  which  I  have  thus  endeavored  to  give 
of  the  true  theory  of  the  doctrine  concerning  bona  fide  purchase 
seemed  to  be  necessary  to  any  accurate  understanding  of  its  ap- 
plications and  effects.  This  original  equitable  theory  has,  however, 
been  modified  in  some  important  features  \>j  the  statutory  system 
of  registration  which  prevails  in  all  the  American  states.  Before 
proceeding  to  describe  the  application  and  eff'ects  of  the  doctrine, 
it  is  proper  to  ascertain  who  the  bona  fide  purchaser  for  valuable 
consideration  is. 

v;  745.  Second.  What  Constitutes  a  Bona  Fide  Purchase.  — 
T'lider  this  head  I  shall  state  those  essential  elements  which  enter 
into  the  equitable  conception  and  determine  the  peculiar  position 
of  a  bona  fide  purchaser,  so  that  he  may  come  within  the  operation 
of  the  doctrine.  The  nature  of  the  thing  purchased,  whether  land, 
chattels,  or  securities,  and  of  the  estate  acquired,  whether  absolute 
or  (|ualified,  legal  or  equitable,  is  not  a  part  of  this  conception ;  it 
belongs  wholly  to  the  eff'ects— the  protection — produced  by  the 
purchase.  The  doctrine  in  its  most  general  form  is,  that  a  purchaser 
in  good  faith  for  a  valuable  consideration  and  without  notice  of  the 
prior  adverse  claims  is  protected  against  certain  suits  brought  by 
the  holders  of  such  claims.^  The  essential  elements  which  constitute 

'See   post,   SS  704.   76.^. 

'  (See  post,    §§  7(>(i-774. 

'See  post,   §8  775-778. 

'  Basset  v.  Nosworthy,  2  Lead.  Cas.  Eq.,  4tli  Am.  ed.  32-42,  7.3-00,  1  Scott 
340,  498;  The  Elmbank,  72  Fed.  010;  Martin  v.  Bowen,  51  N.  J.  Eq.  452.  26 
Atl.  823. 


359  COXCKltXlXC    BONA    FIDH    PURCHASE.  §  74:7 

a  bona  fide  purchase  are  therefore  three, — a  valuable  eonsideralion, 
the  absence  of  notice,  and  the  presence  of  good  faith.-  It  will  be 
})ractically  the  more  convenient  and  advantageous  to  exaniine  these 
three  elements  separately  and  in  the  order  named,  although  in  strict 
theory  the  presence  of  notice  may  perhaps  be  regarded  as  only  an 
indication  of  the  v^rant  of  good  faith.  If  a  person  goes  on  and  pur- 
chases after  notice  of  another's  rights,  he  may  be  considered  as 
acting  in  bad  faith,  and  this  is  undoubtedly  the  basis  upon  which 
the  whole  doctrine  of  notice  and  its  effects  was  rested  by  the  early 
decisions.'^  Practically,  however,  notice,  especially  as  affected  by 
the  recording  acts,  is  an  independent  element,  and  should  be  dis- 
cussed by  itself. 

§  746.  I.  The  Valuable  Consideration. — The  discussion  of  this 
subject  involves  two  inquiries,  which  are  entirely  distinct,  and 
which  should  not  be  confounded :  1.  What  is  a  valuable  considera- 
tion ;  and  2.  Its  payment.  These  two  questions  are  to  be  examined, 
not  at  all  in  their  general  and  abstract  meaning,  but  wholly  as  they 
aff'ect  the  condition  of  a  bona  fide  purchaser.  The  first  has  no  re- 
lation to  the  general  law  of  contracts  and  binding  promises;  the 
second,  in  like  manner,  deals  with  the  act  and  time  of  payment 
only  in  connection  with  the  doctrine  of  bona  fide  purchase. 

§  747.  1.  What  is  Valuable  Consideration. — What  constitutes 
a.  valuable  consideration  within  the  meaning  of  the  doctrine  which 
gives  protection  to  a  bona  fide  purchaser?  No  person  who  has  ac- 
rpiired  title  as  a  mere  volunteer,  whether  by  gift,  devise,  inherit- 
ance, post-nuptial  settlement  on  wife  or  child,  or  otherwise,  can 
thereby  be  a  bona  tide  purchaser.^  Valuable  consideration  means, 
and  necessarily  requires  under  every  form  and  kind  of  purchase, 
something  of  actual  value,  capable,  in  estimation  of  the  law,  of 
pecuniary  measurement. — parting  with  money  or  money's  worth, 
or  an  actual  change  of  the  purchaser's  legal  position  for  the  worse. - 
The  amount  of  the  purchase,  if  otherwise  in  good  faith,  is  not  gen- 
erally material."  As  examples  of  what  clearly  amount  to  valuable 
eonsideration  are  the  following:     A  contemporaneous  advance  or 

=  United  ^States  v.  California  &  O.  Land  Co..  148  U.  8.  .31,  13  Sup.  Ct.  458; 
Knoblock  v.  Mueller,  123  111.  ryr>4,  17  N.  E.  69(5,  H.  &  B.  80. 

=  See  ante,  §  r>02. 

^  Toole  V.  Toole,  107  Ga.  472,  33  S.  E.  G86;  Ten  Eyck  v.  Wliitbeek.  135  N.  Y. 
40.   31    N.   E.   •)!)4.   31    Am.   St.    Rep.    80i». 

"Brown  v.  Wcleli,  IS  111.  .343,  08  Am.  Dec.  540;  The  Elmbank.  72  Fed.  filO; 
Ten  Eyck  v.  WliitI.eek.  135  X.  Y.  40.  31  X.  E.  094.  31  Am.  St.  Rep.  809. 

■'Wood  V.  Chapin.  13  X.  Y.  509.  07  Am.  Dee.  02.  A  crossly  small  and  in- 
adequate eoTisideration  may  show  had  faith,  or  i)ut  on  inquiry;  sec  ante,  §  600; 
J)unn  V,  Barnum.  51  Fed.  355;  Ten  Eyek  v.  Wliitbeek,  135  X.  Y.  40,  31  N.  E. 
994,  31  Am.  St.  Rep.  809. 


§  749  KQIITY    JUKI^PRFDEXCE.  360 

loan  of  money,  or  a  sale,  transfer,  or  exchange  of  property,  made 
at  the  time  of  the  purchase  or  execution  of  the  instrument  ;*  the 
surrender  or  relinquishment  of  an  existing  legal  right,  or  the  as- 
sumption of  a  new  legal  obligation  which  is  in  its  nature  irrevoc- 
able.^ "Whether  this  species  of  valuable  consideration  embraces  the 
discharge,  or  the  extension  of  the  time  of  payment,  of  an  ante- 
cedent debt,  is  a  question  upon  which  the  authorities  are  conflicting, 
and  its  examination  is  postponed  to  the  succeeding  paragraphs. 
In  general,  however,  it  is  requisite  that  the  money  be  paid  or  ad- 
vanced, the  property  transferred,  the  right  surrendered,  or  the 
obligation  assumed,  at  the  time  of  the  conveyance,  and  as  a  part 
of  the  transaction,  in  order  that  it  may  be  the  valuable  considera- 
tion which  can  protect  the  purchaser. 

§  748.  Antecedent  Debts. — Whether  an  antecedent  debt  can  ever 
be  a  valuable  consideration  has  been  denied  by  able  courts;  but 
this  general  subject  has  been  further  complicated  by  the  various 
modes  in  which  such  a  debt  may  be  dealt  with, — secured,  dis- 
charged, postponed,  and  the  like, — and  the  various  questions  thence 
arising  which  have  caused  the  greatest  conflict  of  judicial  opinion. 
In  very  many,  and  perhaps  a  majority,  of  the  states  it  is  settled 
that  the  transferee  of  negotiable  paper  as  security  for  an  ante- 
cedent debt  may  be  a  bona  fide  holder  by  the  law  merchant-,  but 
this  rule  cannot  be  a  precedent  in  determining  the  meaning  of  valu- 
able consideration  within  the  equitable  doctrine  of  bona  fide  pur- 
chase.^ 

§  749.  Security  for  or  Satisfaction  of  an  Antecedent  Debt. — A 
convevcince  of  real  or  personal  })roperty  as  security  for  an  ante- 
cedent debt  does  not,  upon  jirinciple,  render  the  transferee  a  bona 
fide  purchaser,  since  the  creditor  parts  with  no  value,  surrenders 
no  right,  and  places  himself  in  no  worse  legal  position  than  before. 
The  rule  has  been  settled,  therefore,  in  very  many  of  the  states, 
that  such  a  transfer  is  not  made  upon  a  valuable  consideration, 
within  the  meaning  of  the  doctrine  of  bona  fide  purchase.^  In  some 
states,   on  the   contrary,  even  the  securing  a  pre-existing  debt   is 

■•  Bowen  v.  Prout,  52  111.  354  (exchange  of  lands);  Aden  v.  City  of  Vallejo, 
139  Cal.  165,  72  Pac  005    (reservation  in  deed). 

5  Westbrook  v.  (jlleason,  79  N.  Y.  23,  36. 

^ 'I'he  rule  concerning  the  transfer  of  negotiable  instruments  has  been  thus 
seftled  avowedly  in  the  interests  of  commerce  and  mercantile  business:  these 
reasons  do  jiot  apply  to  the  purchase  of  land  and  chattels  and  non-negotiable 
securities.  Jn  some  of  the  states,  therefore,  -where  it  has  been  applied  to 
negotiable  paper,  it  has  been  rejected  with  respect  to  other  conveyances  and 
transfers. 

»The  Elmbank,  72  Fed.  610;  Adams  v.  Vanderbeck,  148  Ind.  92,  45  X.  E.  645, 
47  N.  E.  24,  62  Am.  St.  Rep.  497;  Yong  v,  Guy,  87  N.  Y.  402,  1  Ames  Eq, 
.lur.  207. 


i 

361  CONCERNING    HONA    FIDK    PURCHASE.  §  750 

held  to  be  a  valuable  consideration.-  Whether  the  complete  satis- 
faction or  discharge  or  the  definite  forbearance  of  an  antecedent 
debt,  without  the  surrender  or  cancellation  of  any  written  security 
by  the  creditor,  will  be  a  valuable  consideration  is  a  question  to 
which  the  courts  of  different  states  have  given  conflicting  answers; 
but  the  affirmative  seems  to  be  supported  by  the  numerical  weight 
of  authority.-'  Some  legal  rules  ought  to  be  settled  in  accordance 
with  the  i-osults  of  experience  and  the  dictates  of  policy,  rather 
than  by  a  compliance  with  the  deductions  of  a  strict  logic.  To  hold 
that  a  conveyance  as  security  for  an  antecedent  debt  is  made  with- 
out, but  that  one  in  satisfaction  of  such  a  debt  is  made  with,  a  valu- 
able consideration,  when  the  fact  of  satisfaction  is  not  evidenced 
by  any  act  of  the  creditor,  but  depends  upon  mere  verbal  testimony, 
;is  opening  the  door  wide  for  the  easy  admission  of  fraud.  It 
leaves  the  rights  of  third  persons  to  depend  upon  the  coloring  given 
to  a  past  transaction  by  the  verbal  testimony  of  witnesses,  after 
the  event  has  disclosed  to  the  creditor  the  form  and  nature  in  which 
it  is  for  his  interest  to  picture  the  transaction.  A  rule  which  renders 
it  so  easy  for  an  interested  party  to  defeat  the  rights  of  others 
is  clearly  impolitic*  It  sometimes  happens  that  rules  which  are 
the  most  logically  correct  are  the  ones  which  most  readily  admit 
the  possibility  of  fraud  and  injustice.  It  is  verj^  generally  settled. 
in  accordance  with  principle,  that  an  assignment  made  by  a  debtor 
in  trust  for  the  benefit  of  his  creditors  is  not  a  conveyance  upon 
valuable  consideration,  and  neither  the  assignee  nor  the  creditors 
tliereby  become  bona  fide  purchasers.^  The  questions  concerning 
judgment  creditors  and  purchasers  at  execution  sales  upon  judg- 
jnents  have  already  been  examined  in  the  preceding  section.^ 

§  750.  2.  Payment  of  the  Consideration. — Not  only  must  there 
be  a  valuable  consideration  in  fact,  but  it  must  be  paid  before 
notice  of  the  prior  claim.  Notice  after  the  agreement  for  the  pur- 
chase is  made,  but  before  any  payment,  will  destroy  the  character 


-  Chaffee  v.  Lumber  Co.,  43  Neb.  224,  61  N.  W.  G37,  47  Am.  St.  Rep.  753. 

"State  Bank  v.  Frame,  112  Mo.  502,  20  8.  W.  620.  Contra,  see  Sleeper  v. 
Davis.  04  K.  H.  39,  6  Atl.  201,  10  Am.  St.  Rep.  377.  Extension  of  time:  See 
Randolpli  v.  Webb,  116  Ala.  135,  22  South.  550;  Southerland  v.  Fremont,  107 
N.  C.  565,  12  S.  E.  237.  If  the  creditor  actually  surrenders  up  or  cancels  some 
written  security,  such  act  becomes  a  valuable  consideration,  and  makes  him 
a  bona  fide  purchaser:  Franklin  Sav.  l>ank  v.  Taylor.  53  Fed.  854,  4  C.  C.  A. 
55,  9   U.  S.  App.  406. 

*Gest  V.   Packwood,  34  Fed.   368. 

5  Clark  V.  Flint,  22  Pick.  231.  33  Am.  Deo.  733:  :\Iartin  v.  Bowen,  51  X.  .1. 
Kq.  4.52,  26  Atl.  823;  Brown  V.  Brabb,  67  JMicli,  17,  34  K.  \V.  403,  11  Am.  St. 
Rep.    549. 

'See  supra,   SS  721-724. 


§  T51  EQUITY     JUliJSPRUDEXCE.  3C2" 

of  bona  fide  purchaser.^  The  rule  is  settled  in  England  that  the 
entire  price  or  consideration  must  have  been  paid  before  any  notice, 
and  the  same  completeness  of  payment  is  required  by  some  Amer- 
ican decisions.-  Since  the  modes  of  transferring  and  dealing  with 
real  property  in  this  country  are  so  different  from  those  which 
prevail  in  England,  the  same  eciuitable  principles  which  guided 
the  English  judges  have  led  the  courts  in  many  of  the  states,  under 
a  change  of  circumstances,  to  adopt  a  necessary  modification  of 
this  rule;  otherwise  great  injustice  might  be  wrought.  These  courts 
have  held  that  where  a  part  only  of  the  price  or  consideration 
has  been  paid  before  notice,  either  the  defendant  should  be  en^ 
titled  to  the  position  and  protection  of  a  bona  fide  purchaser  pro 
tanto;  or  that  the  plaintiff  should  be  permitted  to  enforce  his  claim 
to  the  whole  land  only  upon  condition  of  his  doing  equity  by  re- 
funding to  the  defendant  the  amount  already  paid  before  receiving 
the  notice;^  or  even,  when  the  plaintiff  has  been  guiitj'  of  laches, 
or  the  defendant  has  perhaps  made  valuable  improvements,  that 
the  land  itself  should  remain  free  from  any  claim  on  the  plaintiff's 
part,  and  his  remedy  should  be  confined  to  a  recovery  of  the  portion 
of  purchase-money  which  was  still  unpaid  when  notice  was  given.* 
§  751.  Payment  must  be  Actual. — It  is  further  settled  that  there 
must  be  actual  [layrnent  before  any  notice,  or,  what  in  law  is  tanta- 
mount to  actual  payment,  a  transfer  of  property  or  things  in  action, 
or  an  absolute  change  of  the  purchaser's  legal  position  for  the 
worse,  or  the  assumption  by  him  of  some  neAV,  irrevocable  legal 
obligation.  It  follows,  therefore,  that  his  own  promise,  contract, 
bond,  covenant,  bond  and  mortgage,  or  other  non-negotiable  se- 
curity for  the  price,  will  not  render  the  party  a  bona  fide  purchaser, 
nor  entitle  him  to  protection ;  for  upon  failure  of  the  consideration 
he  can  be  relieved  from  such  obligations  in  equity  even  if  not  at 
law.^  Payment  of  actual  cash,  however,  is  not  indispensable.  The 
assumption  of  an  irrevocable  obligation,  from  which  the  purchaser 
could  not  be  relieved  even  by  a  failure  of  the  consideration  arising 

•Wood  V.  Mann,  1  Sum.  50G,  578,  Fed.  Cas.  Xos.  17,951,  17.952,  1  Scott  507j 
Hayden  v.  Charter  Oak  Driving  Park,  63  Conn.  142,  27  Atl.  2.32;  Trice  v. 
Comstoek,   121   Fed.  020,  Gl   L.  R.  A.   176. 

-  Tourville  v.  Naish,  3  P.  Wnis.  307;  Wood  v.  Mann,  1  Sum.  506,  578,  Fed. 
Cas.  Nos.  17,951,  17,952,  1  Scott  507;  Dugan  v.  Vattier,  3  Pdackf.  (Ind.)  24.-), 
25  Am.  Dee.   105.     See,  also,  post,  §  755. 

^  Davis  V.  Ward,  109  Cal.  186,  41  Pac.  1010,  50  Am.  St.  Rep.  29. 

M<'rost  V.  Beekman,  1  Johns.  Cli.  288,  1  Scott  531;  Youst  v.  Martin,  3  Serg. 
&  K.  423;  Yarnell  v.  Brown,  170  111.  362,  48  N.  E.  909,  62  Am.  St,  Rep.  380; 
Durst  V.  Daugherty,  81  Tex.  650,  17  S.  W.  388. 

'Jewett  V.  Palmer,  7  Johns.  Ch.  65,  68,  11  Am.  Dec.  401:  Hayden  v.  Charter 
Oak  Driving  Park,  63  Conn.  142,  27  Atl.  232;  Wyeth  v.  Renz-Bowles  Co.,  66 
S.   VV.   825    (Ky.) 


3()3  COXCKKMNC;     I'.OXA     JIDK    JTlii  11  ASK.  §  T53 

from  tlie  title  being'  invalid,  may  he  sufticieiit.-  'I'he  absolute  trans- 
fer of  notes,  bonds,  or  other  securities  made  by  a  third  person 
will  have  the  same  elVect. 

§  752.  11.  Absence  of  Notice. — The  nature  of  notice,  its  various 
forms,  and  its  general  effects  have  been  considered  in  the  preceding 
sections.  The  present  inquiry  only  concerns  its  special  effects  upon 
a  bona  fide  purchase,  the  time  when  it  must  be  received  in  order 
that  these  effects  may  be  produced,  and  the  modifications  and  addi- 
tions introduced  by  the  recording-  acts.  Since  the  doctrine  of 
bona  fide  purchase  requires  the  absence  of  notice, — a  purchase  for 
a  valuable  consideration  and  without  notice, — the  discussion  of  this 
negative  element  must  chiefly  consist  of  an  affirmative  statement 
of  the  consequences  flowing  from  the  presence  of  notice. 

§  753.  1.  Effects  of  Notice.^ — The  rule  is  universal  and  element- 
ai-y,  that  if  a  purchaser  in  any  form  receives  notice  of  prior  ad- 
verse rights  in  and  to  the  same  subject-matter,  before  he  has  com- 
pletely acquired  or  perfected  his  own  interests  under  the  purchase, 
his  position  as  bona  fide  purchaser  is  thereby  destroyed,  even  though 
he  may  have  paid  a  valuable  consideration ;  on  the  other  hand, 
notice  g'iven  after  his  interests  have  been  completely  acquired  or 
perfected  produces  no  injurious  effect.^  Notice  sufficient  to  prevent 
the  purchase  from  being  bona  fide  may  inhere  in  the  very  form 
and  kind  of  the  conveyance  itself.  On  this  ground  it  is  held  by  one 
group  of  authorities  that  a  grantee  taling  or  holding  under  a  quitclaim 
deed  cannot  be  a  bona  fide  purchaser;  but  this  conclusion  is  re- 
jected by  other  decisions.^ 

-  Tliore  are  many  forms  of  such  obligation:  1.  One  of  these  occurs  where 
Ihe  jjurcliaser  lias  given  his  own  negotiable  notes  for  the  whole  or  a  part  of 
the  price.  Some  of  the  cases  seem  to  require  that  the  note  so  given  to  the 
vendor  should  have  been  actually  negotiated  by  him  so  as  to  cut  off  the  maker's 
defense  of  a  failure  of  the  consideration:  Davis  v.  Ward,  100  Cal.  186,  41 
Pac.  1010,  50  Am.  St.  Rep.  29:  by  others,  it  seems  to  be  sufTicient  that  such 
notes  are  given  by  the  purchaser  to  the  vendor,  so  that  they  duii/  be  negotiated 
and  the  defense  cut  ofT:  Partridge  v.  Chapman,  81  111.  137;  Citizens'  Bank  v. 
Shaw  (N.  Dak.),  84  N.  W.  770.  2.  Another  form  would  be  the  undertaking 
by  Ihe  purchaser  to  pay  a  debt  due  from  the  vendor  to  a  third  person,  in 
-ucli  a  manner  that  he  was  absolutely  substituted  as  the  debtor  in  the  place 
of  his  vendor.     See  Warren  v.  Wilder,  114  N.  Y.  21.5,  21  N.  E.  1.59. 

'See  ante.   §§200.   088.   740. 

-  Probably  a  majority  of  the  adjudicated  cases  still  support  the  view  that 
a  quitclaim  deed  is  ipso  facto  notice  of  all  defects  in  the  title,  and  that  a 
grantee  thereunder  can  not  claim  to  be  a  bona  fide  purchaser.  The  reasons 
for  this  view  are  ably  presented  in  American  Mortgage  Co.  v.  Hutchinson, 
10  Oreg.  .334,  24  Pac.  .515.  See,  also,  Parker  v.  Randolph ,  5  S.  Dak.  549,  59 
X.  \V.  772,  29  L.  P.  A.  33.  On  the  other  hand,  in  a  number  of  jurisdictions 
it  is  hold  that  there  is  no  distinction  in  respect  to  llio  qualily  of  imparting 
iiolice,   between    a   qnitcTiu'm    deed    and    any   oilier    form    of   eonveyan"e:      Moelle 


§  T54  EQUITY     JLlllSl'ULDEXCi:.  oGl 

§  754,  Second  Purchaser  without  Notice  from  First  Purchaser 
with  Notice — Second  Purchaser  with  Notice  from  First  Purchaser 
without. — There  are  two  special  rules  on  the  subject  which  have 
beeu  settled  since  an  early  day ;  one  being  a  mere  application  of  the 
general  doctrine,  and  the  other  a  necessary  inference  from  it.  The 
first  is,  that  if  a  second  purchaser  for  value  and  without  notice 
jnirchases  from  a  first  purchaser  who  is  charged  with  notice,  he 
thereby  becomes  a  bona  fide  purchaser,  and  is  entitled  to  protection. 
This  statement  may  be  generalized.  If  The  title  to  land,  having 
passed  through  successive  grantees,  and  sub.ject  in  the  hands  of  each 
to  prior  outstanding  equities,  come.s  to  a  purchaser  for  value  and 
without  notice,  it  is  at  once  freed  from  these  equities;  he  obtains  a 
valid  title,  and,  with  a  single  exception,  the  full  power  of  disposi- 
tion.' This  exception  is,  that  such  a  title  cannot  be  conveyed,  free 
from  the  prior  equities,  back  to  a  former  owner  who  w^as  charged 
with  notice.  If  A,  holding  a  title  affected  with  notice,  conveys 
to  B,  a  bona  fide  purchaser,  and  afterwards  takes  a  reconveyance 
to  himself,  all  the  equities  revive  and  attach  to  the  land  in  his 
hands,  since  the  doctrine  requires  not  only  valuable  consideration 
and  absence  of  notice,  but  also  good  fnitlir  The  second  rule  is,  that 
if  a  second  purchaser  with  notice  acquires  title  from  a  first  purchaser 
who  was  without  notice,  and  bona  fide,  he  succeeds  to  all  the  rights 
of  his  immediate  grantor.  In  fact,  when  land  once  comes,  freed 
from  equities,  into  the  hands  of  a  bona  fide  purchaser,  he  obtains 

V.  Sherwood,  14S  U.  S.  21,  13  Sup.  Ct.  420:  Wilhehu  v.  Wilken,  149  X.  Y. 
447,  44  X.  E.  82,  52  Am.  St.  Rep.  743,  32  L.  R.  A.  370.  By  a  third  view,  liie 
(■fleet  of  the  quitchiim  form  of  the  deed  is  to  put  the  grantee  upon  inquiry 
iiH-rcIy;  the  presumption  of  mala  fides  is  not  conclusive:  United  States  v. 
California  &  O.  Land  Co.,  49  Fed.  496,  .50.5,  500,  7  U.  S.  App.  128,  1  C.  C.  A.  3.30, 
opinion  of  Hanford,  D.  J.:  Schott  v.  Dosh,  49  Nebr.  187,  68  X.  W.  340,  .59 
Am.  St.  Rep.  ,531.  A  large  number  of  decisions,  w^hile  adhering  to  tlie  rule 
tiiat  a  quitclaim  deed  implies  notice  to  the  grantee,  seek  to  free  the  rule  from 
the  odium  of  technicality  that  is  sometimes  attributed  to  it,  by  making  the 
■'quitclaim"  character  of  the  deed  depend  not  upon  the  presence  or  absence 
of  technical  words,  but  on  the  nature  of  the  transaction  as  disclosed  by  con- 
struction of  the  instrument  as  a  whole.  If,  from  all  the  terms  of  the  instru- 
ment, it  is  evident  that  it  purports  to  convey  a  "chance  of  title,"  or  the  "specu- 
lative right,  title  and  interest"  of  the  grantor,  as  distinguished  from  the  land 
itself,  it  is  a  quitclaim:     Threadgill  v.  Bickerstaflf,  87  Tex.  520,  29  S.  W.  757. 

MVood  V.  ]Mann,  1  Sum.  506,  1  Scott  507:  Pringle  v.  Dunn.  37  Wis.  449,  19 
Am.  Rep.  772,  H.  &  B.  92;  Odom  v.  Riddick.  104  X^.  C.  515.  10  S.  E.  609.  17 
Am.  St.  Rep.  686,  7  L.  R.  A.  118:  London  v.  Youmans,  31  S.  C.  150,  9  S.  E. 
775,  17  Am.  St.  Rep.  17.  For  tlie  same  reason,  a  purchaser  for  value  and 
without  notice  from  a  vendor  wlio  had  himself  acquired  his  title  througli  fraud 
becomes  bona  tide  free  from  the  effects  of  the  fraud:  Zoeller  v.  Riley.  100 
X.  V.  108,  2  X.  E.  388.  .53  Am.  Rep.  157. 

'Clark  v.  3*IcXeal,  114  X.  Y.  295,  21   X.  E.  405,  11  Am.  St.  Rep.  638. 


3'oo  coxcERXixc;   hoxa   F1U1-:   i'l  itciiASii:.  .      §  i5.j 

a  complete  jus  disponendi,  with  the  exception  last  above  mentioned, 
and  may   transfer  a  perfect  title  t^ven  to  volunteers.'' 

§  755.  2.  Time  of  Giving  Notice. — We  have  seen  that  if  notice 
is  not  given  until  after  the  purchaser  has  fully  paid  the  consider- 
ation, received  a  conveyance,  and  completed  his  title,  he  is  not  in 
the  least  affected  by  it.  If  the  notice  is  given  before  an\'  or  all 
of  these  steps  have  been  taken,  its  consequences  may  be  different, 
and  are  to  be  considered.  The  general  rule  is  settled  in  England, 
that  a  bona  hde  purchase  recjuires  both  the  payment  of  all  the 
price  and  the  execution  and  delivery  of  the  conversance  before  tlie 
receipt  of  notice  by  the  purchaser.  In  other  vv'ords,  if  the  party 
has  received  the  conveyance  before  notice  and  paid  the  price  after, 
or  has  paid  the  price  before  and  received  the  conveyance  after, 
in  either  instance  the  bona  fides  of  the  purchase  is  destroyed.^ 
Tlie  American  decisions  are  all  agreed  that  a  notice  received  before 
any  of  the  purchase  price  has  been  paid,  as  weU  after  the  deed 
of  conveyance  has  been  delivered  as  before,  will  destroy  the  bona 
fides  of  the  purchase,  and  many  of  the  decisions,  folloAving  the 
English  rule,  attribute  the  same  effect  to  a  notice  after  a  payment 
of  part,  but  before  the  whole  is  paid.-  Such  a  payment  is,  by 
some  authorities,  a  protection  pro  tanto.^  Finally,  the  case  of 
notice  received  after  payments  made,  but  before  the  deed  of  con- 
veyance delivered,  has  given  rise  to  a  direct  conflict  of  judicial 
opinion.  One  group  of  decisions  adopts  and  lays  down  the  English 
rule,  that  the  purchase,  under  the  circumstances,  is  not  bona  fide.* 

■■■Harrison  v.  Forth,  Prec.  Ch.  51,  1  8eott  500;  Pringle  v.  Dunn,  37  Wis.  449, 
19  Am.  Kep.  772,  H.  &  B.  92;  Peterson  v.  McCaiiley  (Tex.  Civ.  App.),  25  8.  W. 
82(>;    English   v.   Lindley,   194   111.    181,   62   N.   E.   522. 

M\igg  V.  Wigg,  1  Atk.  382,  384;  Sliarpe  v.  Foy,  L.  R.  4  Ch.  35.  37.  The 
true  meaning  of  this  rule  should  not  be  misapprehended.  If  A  purchases  in 
the  llrst  instance  a  legal  estate,  the  rule,  of  course,  applies  to  him.  If  he'  pur- 
ciiases  or  acquires  in  the  first  instance  an  equitable  estate,  the  rule  also  applies, 
so  far  a.t  that  purchase  is  concerned.  For  example,  if  A  receives  a  first  mort- 
gage, which  conveys  the  legal  estate,  and  B  takes  a  second  moi-tgage  of  the  same 
form  purporting  to  convey  the  land,  but  wliich  is,  nevertheless,  only  an  equitable 
conveyance,  the  rule  requires  that  B  should  both  have  advanced  the  monej^  and 
ol)lained  the  instrument  before  receiving  notice,  in  order  to  be  a  bona  fide 
])urchaser.  This  rule,  however,  does  not  prevent  a  person  who  has  thus  acquired 
an  equitable  estate  by  conveyance  in  good  faith,  and  w^ho  afterwards  receives 
iKidce  of  a  prior  equity,  from  oblainiiig  a  conveyance  of  the  outstanding  legal 
cslale  and  tlius  ])roteoting  liinisclf  from  such  equity.  This  latter  power  is 
lecognizcd  hy  an  overwhelming  array  of  English  authority,  and  in  fact  forms 
one  of  the  most  frequent  occasions  for  applying  the  doctrine  of  bona  fide  pur- 
chase. 

-•  Frost  v.  Beckman.  1  Johns.  Ch.  288.  1  Scott  531  :  Bablwin  v.  Sager,  70  111. 
503:    Beck  v.   Chrich.  13   Pn.  St.  033.  (539.  53  Am.  Dec.  .507.     See  ante,  §750. 

^  See  ante,  S  750. 

*Doswell    V.    J5uclianan,    3    Leigh    305,    23    Am.    Dec.    280. 


§  759         ■  EQUITY     JUKISPRUDEKCE.  366 

Another  line  of  cases  holds  in  the  most  positive  and  general  man- 
ner that  where  the  purchaser  hss  paid  the  consideration  without 
notice  of  any  prior  claim,  and  after  receiving  notice  he  obtains 
a  conveyance  of  the  legal  estate,  he  becomes  to  all  intents  a  bona 
fide  purchaser,  and  is  entitled  to  all  the  protection  belonging  to 
that  position.  And  this  result  seems  to  be  applied  without  limita- 
tion to  the  acquisition  of  every  kind  of  equitable  estate,  niterest, 
or  right."' 

§  757.  3.  Recording-  in  Connection  with  Notice. — 
§  758.  The  Interest  Under  a  Prior  Unrecorded  Conveyance. — 
Although  the  statutes  pronoimee  unrecorded  deeds  and  mortgages 
to  be  void  as  against  subsequent  purchasers  who  have  complied 
with  their  provisions,  yet  in  the  practical  operation  of  this  leg- 
islation the  right  created  by  a  j^rior  unrecorded  instrument  is  gen- 
erally regarded  as  tantamount  to  an  equitable  interest,  which 
may  therefore  be  cut  off  by  a  subsequent  purchaser  or  encum- 
brancer who  is  in  all  respects  bona  fide,  and  who  has  also  obtained 
the  first  record.^  The  total  effect  of  the  system  is  thus  twofold ; 
it  both  enlarges  the  scope  of  the  doctrine  concerning  bona  fide 
purchase,  by  extending  it  to  all  those  interests,  legal  or  equitable, 
which  are  required  or  permitted  to  be  recorded,-'  and  it  adds  to  the 
elements  constituting  a  bona  fide  purchase  the  further  requisite 
of  a  registration. 

§  759.  Requisites  to  the  Protection  from  the  First  Record  by 
a  Subsequent  Purchaser. — It  follov/s  that,  in  order  to  obtain  the 
benefit  of  the  first  recording,  the  subsequent  purchase  or  encum- 
brance must  be  for  a  valuable  consideration  within  the  meaning  of 
the  general  doctrine.  Although  the  subsequent  purchaser  or  en- 
cumbrancer had  no  notice  of  the  unrecorded  instrument,  still, 
if  he  had  not  paid   a  valuable  consideration,  he  would  not   gain 


■■'Carroll  v.  Joliiison,  2  Joiios  Eq.  120:  (liblcr  v.  Triniblp.  14  Ohio  :32r,.  In 
Carroll  v.  .Johnson,  2  Jones  Eq.  120,  the  question  was  presented  very  sharply. 
Plaintiff  held  under  a  prior  vendee,  x\;  defendant  was  a  subsequent  vendee,  who 
had  paid  part  of  the  price  before  notice  of  A's  claim ;  after  receiving  notice 
he  obtained  a  conveyance  from  the  original  vendor,  and  was  held  to  be  a  bona 
tide  purchaser  and  protected.  Certainly  there  is  nothing  in  the  settled  principles 
of  the  doctrine  concerning  bona  fide  purchase  which  can  sustain  such  a  con- 
clusion. 

^  (See  supra,  SS  6o~i-C>(;4. 

*Mullins  V.  Butte  Hnrdwarc  Co..  2.")  .Mont.  52,5.  fi.5  Par.  1004.  87  Am.  St. 
Hep.  430. 

-  This  should  not  be  taken  to  imply  that  the  jurifuliction  of  equity  has  been 
enlarged  by  the  recording  acts;  by  virtue  of  them  the  doctrine  has  become  en- 
forceable, and  is  constanWy  enforced,  by  courts  of  law.  Sec  ante,  §  680,  and 
note. 


367  CONCERNING    BONA    FIDE    PIKCHASE.  §  '](>^' 

any  superior  title  or  lien  by  his  earlier  registration.^  Since  tlu- 
subsequent  purchaser  or  encumbrancer  must  be  bona  fide,  in  order 
to  claim  the  benefits  of  the  first  registration,  it  also  follows  that 
if  such  subsequent  purchaser  or  encumbrancer  was,  in  taking  his 
conveyance,  mortgage,  or  other  instrument  required  or  permitted 
to  be  recorded,  chargeable  with  notice  of  a  prior  unrecorded  con- 
veyance or  encumbrance,  within  the  operation  of  the  r.ettled  rules 
concerning  the  nature  of  notice  and  the  time  and  mode  of  its 
reception,  then  he  is  not  a  bona  fide  purchaser,  and  does  not  obtain 
the  statutory  superiority  of  title  or  precedence  of  lien  by  his  ear- 
liest registration.  This  construction  was  put  upon  the  English 
.statutes  at  an  early  day,  and  has  been  adopted  in  nearly  all  the 
American  states."  These  exceptional  states  are  Ohio  and  North 
Carolina. 

§  760.  Purchaser  in  Good  Faith  with  Apparent  Record  Title 
from  a  Grantor  Charg-ed  with  Notice  of  a  Prior  Unrecorded  Convey- 
ance.— This  rule  is  of  very  easy  application  under  all  ordinary 
circumstances  betAveen  two  consecutive  deeds  or  mortgages  whore 
the  second  is  recorded  before  the  first.  Circumstances  may  arise 
which  present  questions  of  great  intricacj^  and  difficulty,  and  oc- 
casion perhaps  a  conflict  of  judicial  opinion.  A  grantee  or  mort- 
gagee, being  a  purchaser  in  good  faith,  and  holding  a  record  title 
which  appears  perfect,  maj^  really  have  no  title  because  a  grantor 
or  a  mortgagor  in  the  chain  of  title  had  knowledge,  when  he  took 
the  conveyance  to  himself,  of  a  prior  unrecorded  deed   or  mort- 

^  Burden  of  proof  as  to  honrt  fide  jmrchase :  Many  casps  hold  that  in  a 
contest  between  the  hohler  of  the  prior  unrecorded  conveyance  and  the  subse- 
quent grantee  or  mortpaijee  wlTo  has  obtained  a  record,  the  burdeji  of  proof 
is  on  the  latter  of  showino;  afrnniatively  that  he  paid  a  valuable  consideration 
and  had  no  notice;  the  record  itself  is  not  enough:  Bell  v.  Pleasant,  145  Cal. 
410.  78  Pac.  0.17.  104  Am.  St.  Rep.  61:  Seymour  v.  IMcKinstry,  106  N.  Y.  238, 
12  ^.  E.  348,  14  N.  E.  04.  Many  other  cases  hold  contra,  that  the  burden  is 
<m  file  one  claiminj;  under  the  unrecorded  instrument  to  show  either  notice  or  a 
Avant  of  consideration:  Gratz  v.  L.  &  R.  I.  Co.,  82  Fed.  381,  27  C.  C.  A.  30,5, 
40  L.  R.  A.  303:  Anthony  v.  Wheeler.  130  111.  128,  22  N.  E.  404.  17  Am.  St. 
Rep.  281,  note.  Probably  tlie  rule  that  has  most  authority  and  convcnienoc  in 
its  favor  is  that  the  burden  is  on  the  one  who  claims  protection  as  a  bona 
fide  purchaser  to  show  the  actual  payment  of  a  valuable  consideration  by 
evidence  other  than  tlie  recitals  in  his  deed:  but  that  Mhen  such  payment  is 
shown,  the  burden  shifts,  and  it  devolves  vipon  the  other  party  to  prove  that  the 
STibsequent  purchaser  took  with  notice,  actual  or  constructive:  Lake  v.  Han- 
cock. 38  Fla.  ii3.  20  South.  811.  ,5G  Am.  St.  Rep.  150;  Brown  and  Pollak  1.  Co. 
v.  H.-B.  1.  Co..  105  Iowa  624,  75  N.  W.  400.  67  Am.  St.  Rep.  310:  Snyder  v. 
Orandstaff.  06  Va.  473.  31   S.  E.  647,  70  Am.   St.  Rep.  863. 

^Le  Neve  v.  Le  Neve,  Amb.  436.  1  Soott  536;  Davis  v.  Earl  of  Stiathmore, 
16  Ves.  410:  Cxalland  v.  Jackman.  26  Cal.  70.  87.  85  Am.  Dee.  172:  Tolbert 
V.  florton.  31  Minn.  518,  18  N.  \V.  647.     See  supra,  §§659,  660. 


§  760  EQUITY     JUinsPKUDENCE.  368 

gage,  which  was,  however,  recorded  before  his  own  deed  or  mort- 
gage to  his  own  grantee.  The  essential  facts  giving  rise  to  such 
a  question  are  as  follows:  A  gives  a  deed  to  B,  which  for  a 
while  is  unrecorded.  A  subsequently  conveys  the  same  land  to  C, 
who  pays  a  valuable  consideration,  but  who  has  actual  notice  of 
B's  prior  deed,  and  C  puts  his  deed  on  record  first.  B  then,  after 
the  recording  of  C's  deed,  puts  his  own  prior  deed  on  record. 
After  the  record  of  B's  deed,  C  conveys  the  land  to  D,  who  pays  a 
valuable  consideration,  and*  has  no  actual  notice  of  B's  deed,  and 
only  the  constructive  notice  given  by  the  record.  The  facts  might 
be  varied  b}^  supposing  mortgages  in  place  of  deeds.  Which  has 
the' priority,  B  or  D?  There  are  earlier  decisions  which  give  the 
precedence  to  D.^  These  decisions,  however,  have  been  overruled 
in  the  same  states  in  which  they  were  given,  and  it  is  now  settled 
by  an  overwhelming  weight  of  authority  that  B  would  have  the 
precedence  over  D.  It  is  plain  that  C  got  no  title  by  his  first 
recording,  because  he  had  actual  notice.  When  C  conveyed  to  D, 
if  B's  deed  had  not  then  been  on  record,  and  D  had  put  his  own 
deed  on  record  before  B's  deed  was  recorded,  D  would  have  ob- 
tained the  title.  But  the  record  of  B's  deed  prior  to  the  con- 
veyance  to  D  cut  off  the  latter 's  precedence,  because  D  could  claim 
nothing  from  C's  frst  record,  by  reason  of  C's  having  actual  no- 
tice.-    This  ]-esult  evideutl}^  rests  upon  the  fact — and  there  all  of 

^Ely  V.  Wilcox,  20  Wis.  523,  530,  91  Am.  Dec.  43(;:  Morse  v.  Curtis,  140 
Mass.  112,  .14  Am.  Tlep.  456.  The  reason  given  is,  that  D,  on  taking  his  deed 
or  mortgage,  and  on  making  search,  woukl  find  an  unbroken  cliain  of  record 
title  Irom  iiimself  tlnongli  C  up  to  A,  and  that  he  was  under  no  obligation  to 
go  out  of  such  a  chain  of  lecord  title,  and  search  for  deeds  or  mortgages  to 
persons  hi/  or  tlirough  whom  he  did  not  derive *his  title. 

-Flynt  V.  Arnold,  2  Met.  619,  Shaw,  C.  J.;  Parrish  v.  Mahany,  10  S.  Dak. 
276,  73  X.  \\  .  97,  00  Am.  St.  Rej).  715,  reviewing  the  cases;  s.  c,  12  S.  Dak. 
278,  76  Am.  St.  Kep.  604,  81  X.  W.  295  (l^urden  of  proof  rests  on  D  to  show 
that  C  was  a  bona  fide  purchaser)  ;  opinion  of  Dixon,  C.  J.,  in  Fallass  v. 
Pierce.  30  Wis.  443:  "Xow,  the  reason  why  the  purchaser  from  C,  in  the 
case  above  su])])ose(i,  who  buys  after  the  recording  of  tlie  ])ri<)r  deed  to  B  from 
A,  also  the  grantor  of  C,  is  bound  to  take  notice  of  B's  deed,  or  of  the  fact 
that  the  true  title  is  or  may  be  in  B,  is  that  such  purchaser,  in  looking  upoa 
the  statute,  sees  that  B's  prior  and  paramount  title  at  conunon  law  is  not  to 
be  divested,  or  his  deed  avoided,  except  upon  the  happening  of  three  distinct 
events  or  contingencies,  the  absence  of  either  of  which  Avill  save  the  title  of  B, 
or  prove  fatal  to  that  claimed  by  C,  or  which  may  be  acquired  by  a  purchaser 
from  iiim.  Tliose  events  or  contingencies  are:  First,  good  faith  in  C,  or  the 
purchase  by  iiim  without  notice  of  the  previous  conveyance  to  B:  second,  tb*^ 
payment  of  a  valuable  consideration  by  C;  and,  third,  the  first  recording  of 
C's  deed.  The  purchaser  from  C,  looking  upon  the  record,  sees:  First,  the 
jirior  conveyance  from  A  to  B :  and,  second,  the  first  recording  of  C's  deed.  Of 
these  two  facts  the  record  informs  him.  but  of  the  other  two  facts  requisite, 
under   the   statute,   to   constitute   valid   title    in    C,   as   against   tlie   prior   pur- 


369  .  COXCKKXIXG    150XA    FIDE    PURCHASE.  §  7G3 

the  decisions  place  it — that  C  took  with  an  a-^tual  notice,  and 
so  could  acquire  no  precedence  by  his  earliest  record.  If  this  fact 
Avere  otherwise,  if  C  had  no  notice  and  first  put  his  deed  or  mort- 
gage upon  record,  he  would  tlien  clearly  obtain  a  perfect  title 
or  superior  lien  over  B's  prior  but  unrecorded  deed.  That  being 
the  ease,  and  C  havin;  ol)tained  an  indefeasible  title,  if  he  should 
then  convey  to  D,  who  had  notice,  the  latter,  bv  virtue  of  anotlier 
settled  rule,  would  succeed  to  his  grantor's  rights,  and  also  ac- 
quire a  like  perfect  title,  as  Chief  Justice  Shaw  expressly  states  in 
the  passage  quoted.  The  same  would  be  true  in  the  succession  of 
purchasers,  each  obtaining  a  record  but  each  alfected  Avith  notice. 
As  soon  as  any  one  in  the  series  purchases  for  value  and  without 
notice,  and  i)laees  his  conveyance  upon  record,  he  aecpures  a  title 
or  lien  secure  as  against  the  earliest  unrecorded  deed  to  B.  This 
necessarily  leads  to  another  most  important  rule  concerning  notice 
in  connection  with  recording,  and  the  extent  to  which  a  record 
is  constructive  notice  to  su])sef|uent  purchasers  and  encumbrancers. 

§761.  Break  in  the  Record  Title— When  Purchaser  is  Still 
Charged  with  Notice  of  Prior  Unrecorded  Title.' — 

§  762.  III.  Good.  Faith  Necessary. — The  most  general  state- 
ment of  the  doctrine  describes  the  purchase  as  one  made  in  good 
faith  for  a  valuable  consideration  and  without  notice.  It  is  true 
that  in  most  instances  the  want  of  good  faith  consists  in  the  com- 
pletion of  the  purchase  after  the  party  has  been  charged  with  no- 
tice, for  such  conduct  is  regarded  by  equity  as  constructively 
fraudulent.^  The  recpiisite  of  good  faith  extends  much  further. 
A  purchaser  may  part  with  a  valuable  considei-ation,  may  have  no 
notice  of  any  opposing  claim,  and  yet  lack  the  good  faith  which  is 
■essential  to  render  his  position  a  protection,  and  his  defense  avail- 
able. It  is  an  eleinentary  doctrine,  therefore,  that,  independently 
of  notice  and  valuable  consideration,  any  want  of  good  faith  on 
the  purchaser's  part,  any  inequitable  conduct  of  his,  such  as  fraud 
committed  in  the  transaction  against  his  own  immediate  vendor 
or  grantor,  or  a  participation  in  an  intended  fraud  against  the 
creditors  of  his  vendor  or   grantor,  or  his  obtaining  the    transfer 

chaser,  ii,  the  record  gives  liiiu  no  in  formation.  For  knowledge  of  the  other 
two  facts,  namely,  the  good  faith  of  V,  and  valuable  consideration  paid  by  him, 
the  purchaser  from,  or  any  one  claiming  title  under,  C,  as  against  B  or  his 
grantees,  must  in(|uire  else\\lierc  than  by  the  record,  and  is  bound,  at  the  peril  of 
his  title,  or  of  any  right  Aviiich  can  be  granted  by  or  claimed  under  C,  to 
ascertain  the  existence  of  those  facts." 

'Page  V.  Waring.  7(5  X.  Y.  4(!:3 :  Bright  v.  Buckman,  .39  Fed.  243;  Ford  v. 
Unity  Church  .Society.  120  :\!(l.  498,  25  !S.  VV.  394,  41  Am.  St.  Rep.  711,  23 
L.   R.  A.   5(51.      See  supra,   §  658. 

'  See  ante,  §  591. 
24 


§  765  EQUITY     JUKISPIUDKXCK.  3T0 

through  misrepresentations  or  concealments  which  are  inequitable, 
although  not  amounting  to  positive  fraud,  and  the  like,  will  destroy 
the  character  of  a  bona  fide  purchase,  and  defeat  the  protection 
otherwise  given  to  it.  The  party  claiming  to  be  a  bona  fide  pur- 
chaser must  come  into  a  court  of  equity  with  absolutely  clean 
hands." 
§  763.  Third.  Effects  of  a  Bona  Fide  Purchase  as  a  Defense.— 
§  764.  I.  Suits  by  Holder  of  the  Legal  Estate  under  the  Auxil- 
iary Jurisdiction  of  Equity.— As  cases  falling  within  this  class  are 
very  infrequent  in  the  United  States,  no  detailed  discussion  seems 
to  be  necessar3^  The  kinds  of  suits  embraced  within  the  term 
"Auxiliary  Jurisdiction"  as  here  used  are  those  for  discovery 
proper,  those  for  the  delivery  up  of  title  deeds  in  connection  with 
discovery,  those  to  prevent  a  defendant  in  ejectment  from  setting 
up  outstanding  terms  to  defeat  the  action,  and  those  to  perpetuate 
testimony.  It  has  been  settled  from  an  early  day  that  no  suit  for  a 
discovery  can  be  maintained  by  the  holder  of  the  legal  estate  in 
order  to  assist  him  in  maintaining  his  title  against  a  bona  fide 
purchaser  of  an  equitable  estate,  further  than  as  to  facts  relevant 
to  the  question  whether  the  defendant  had  notice.  After  such 
purchaser  has  sufficiently  denied  notice,  he  will  not  be  compelled 
to  make  discovery  in  aid  of  plaintiff's  title.'  It  is  equally  well  set- 
tled that  the  holder  of  the  legal  estate  cannot  compel  a  delivery 
up  of  the  title  deeds  by  a  bona  fide  purchaser  of  an  equitable  estate 
— for  example,  an  equitable  mortgagee — even  though  some  other 
relief,  stich  as  a  foreclosure,  may  have  been  granted.-  .  .  . 

§  765.  Exceptions  and  Limitations. — There  are,  however,  well- 
considered  and  authoritative  decisions,  in  which  the  defense  has 
not  been  permitted  to  prevail  against  the  holder  of  the  legal  estate 
suing  for  relief.  Although  these  decisions  were  not  in  express 
terms  placed  by  the  judges  rendering  them  upon  the  ground  now 

-  There  are  some  old  cases  in  whicli  a  so-called  bona  fide  purchaser,  through 
fraud  or  violence,  was  protected.  See  Carter  v.  Carter,  3  Kay  &  J.  617,  fi.36, 
(>;{7.   1   Scott  345;   Schneider  v.  Sellers    (Tex.  Civ.  App.),  81  S.  W.   126. 

'  Basset  v.  Nosworthy,  Cas.  t.  Finch,  102,  2  Lead.  Cas.  Eq.  1,  1  Scott  340, 
408,  per  Lord  Nottingham. 

-"vVallwyn  v.  Lee,  f)  Ves.  24  (a  life  tenant  mortgaged  property  in  fee,  fraudu- 
lently concealing  the  fact  of  his  mere  life  estate  and  pretending  to  be  owner 
in  fee,  and  delivered  the  title  deeds  to  the  mortgagee.  On  his  death  the  re- 
mainderman sued  for  a  discovery  and  to  have  the  deeds  surrendered.  Lora 
Eidon  sustained  the  defense  of  bona  fide  purchase).  Since  the  passage  of  the 
-Judicature  Act  in  England,  these  rules  have  been  modified.  The  Chancery 
division  of  the  High  Court  of  .Justice  now  have  jurisdiction,  on  the  application 
of  the  legal  owner  of  title  deeds,  to  order  them  to  be  delivered  up  by  a  pur- 
chaser for  value  without  notice:  Ind,  CooiJe  &  Co.  v.  Emmerson.  L.  R.  12  App. 
Cas.  300. 


oil  COXCKlIXJNCi    150NA     FIDE    PrKt' 1 1  ASK.  §  7B() 

mentioned,  yet  the  lientTuI  doctrine  upon  which  they  can  alone 
be  sustained  and  harmonized  with  the  current  of  authority  is  that 
first  explained  by  Lord  Westbury,  and  already  stated.^  Where 
the  suit  is  one  belonging  to  the  concurrent  jurisdiction  of  equity 
and  law,  and  is  brought  by  the  holder  of  a  legal  title  to  obtain  a 
relief  purely  legal,  the  defense  of  bona  fide  purchase  will  not 
prevail,  because  it  M'ould  not  prevail  at  law,  and  to  allow  it  in 
equity  W'Ould  simply  be  an  abdication  of  its  rightful  jurisdiction 
by  a  court  of  equity,  and  a  putting  the  plaintiff  to  the  unneces- 
sary expense  and  delay  of  a  second  action  at  law.  Such  suits  es- 
pecially are  those  brought  to  establish  and  recover  dower,  and 
those  brought  to  establish  tithes  in  England.-  .  .  . 

§  766,  II.  Suits  by  the  Holder  of  an  Equitable  Estate  or  Inter- 
est against  the  Purchaser  of  the  Legal  Estate. — This  application 
of  the  doctrine  includes  not  only  purchasers  who  receive  a  convey- 
ance of  the  legal  estate  at  the  time  and  as  a  part  of  their  original 
and  single  purchase,  but  also  those  who,  having  originally  purchased 
and  acquired  merely  an  equitable  estate,  afterwards  obtain  a  con- 
veyance of  the  outstanding  legal  title  from  the  one  in  whom  it 
was  vested.^  .  .  .  The  common  occasions  for  a  resort  to  the  doctrine 
in  England,  where  it  is  little  affected  by  statutes  of  registration, 
are  the  cases  of  a  prior  equitable  mortgage,  and  a  subsequent  sale 
and  conveyance  of  the  land  by  the  mortgagor,  he  concealing  the 
fact  of  such  existing  mortgage;  of  several  consecutive  mortgages 
of  the  same  land,  the  later  ones  being  taken  in  ignorance  of  the 
earlier;  successive  conveyances  of  his  equitable  estate  by  the  same 
cestui  que  trust,  the  later  purchaser  being  ignorant  of  the  earlier 
transfer;  and  purchasers  from  a  trustee  in  violation  of  his  trust. 
In  the  United  States  the  recording  system  has  greatly  modified  the 
])ractical  operation  of  the  doctrine,  since  the  defendant  must  gener- 
ally show,  in  order  to  obtain  protection,  that  he  has  recorded  the 
instrument  by  which  his  title  was  acquired.  With  this  additional 
feature,  the  instances  most  frequently  coming  before  the  American, 
courts  of  equity  are  cases  of  a  prior  unrecorded  mortgage  and  a 
subsequent  recorded  conveyance,  a  prior  unrecorded  and  a  subs^'- 
((uent  recorded  mortgage,  a  prior  contract  of  sale  and  a  subsequent 
recorded  conveyance  or  mortgage,  a  prior  vendor's  lien  or 
other  equitable  lien  and  a  subsequent  recorded  conveyance  or  mort- 
gage, and  a  conveyance  by  a  trustee  of  land  subject  to  a  prior  trust. 

*  See  supra,  §  742. 

'\\'illiams  v.  Lambe,  3  Brown  Ch.  263,  per  Lord  Thurlow  (dower):  Collins 
V.  Arf'JKT.  1  Russ.  &  M.  284,  per  Sir  John  Leach  (tithes),  as  explained  by 
Lord    Westbury  in   Phillips   v.   Phillips.  4  De  Gex,   F.   &  J.   208,  217. 

United  States  v.  Detroit  Timber  &  L.  Co.   (C.  C.  A.),  131  Fed.  668, 


§  768  EQUITY     JLIIJ.SI'KUDEXCE.  373 

the  trust  being  more  often  eonstrnetive  or  resulting  than  expiess. 
The  ease  of  a  prior  unrecorded  deed  purporting  to  convey  the  legal 
estate,  and  a  subsequent  recorded  deed  depending  wholly  upon 
the  recording  acts,  does  not  beh)ng  to  the  equitable  jurisdiction. - 

§  767.  Legal  Estate  Acquired  by  the  Original  Purchase. — In  the 
first  place,  it  is  the  very  central  portion  of  the  doctrine,  to  which 
all  others  have  been  additions,  that  where  the  defendant  acquired 
the  legal  estate  at  the  time  and  as  a  part  of  his  original  purchase, 
the  fact  of  his  purchase  having  been  bona  fide  for  value  and  with- 
(uit  notice  is  a  perfect  defense  in  equity  to  any  suit  brought  by  the 
holder  of  a  prior  equitable  estate,  lien,  encumbrance,  or  other  in- 
terest, seeking  either  to  establish  and  enforce  liis  equitable  estate, 
iien,  or  interest,  or  to  obtain  any  other  relief  with  respect  thereto 
which  can  be  given  by  a  court  of  equity.^  A  mortgagee  of  land  may 
he  a  bona  fide  purchaser  within  the  meaning  of  the  general  doctrine. 
In  some  states  every  mortgagee,  subsequent  as  well  as  prior,  ac- 
(juires  the  legal  estate  as  against  the  mortgagor.  In  other  states, 
although  mortgages  create  only  an  equitable  lien,  they  are  expressly 
(-mbraced  within  the  recording  acts.-  The  doctrine  is  also  extended, 
in  many  of  the  states  at  least,  to  assignments  of  mortgages,  the 
assignment  being  regarded  as  a  "conveyance,"  and  the  assignee 
as  a  "purchaser."  It  should  be  observed  that  the  eft'eet  of  a  bona 
fide  purchase  and  a  previous  registration  is  applied  not  only  be- 
tween successive  assignees  of  the  mortgage  from  the  same  assignor, 
but  also  between  such  an  assignee  and  a  third  person  Avho  has  ob- 
tained some  title,  estate,  or  interest  in  or  lien  upon  the  mortgaged 
premises." 

§  768.  Purchaser  First  of  an  Equitable  Estate  Subsequently  Ac- 
quires the  Legal  Estate — Tabula  in  Naufragio. — The  protection  is 

-  .Sec  ante,  §  758. 

^See  Pilcher  v.  RaAvlins,  L.  E.  7  Ch.  259,  2G8,  2G9,  per  James,  L.  J.;  Taylor 
V.  London,  etc.,  Bkg.  Co.  (1901),  2  Ch.  231;  Patty  v.  Middleton,  82  Tex.  58G, 
17  S.  \\ .  909  (an  instructive  ease).  In  this  countiy  it  must  be  remembered 
that  the  defense  is  only  made  available  by  the  defendant's  having  first  put  his 
title  deed  upon  record.  Illustrations;  Bona  fide  purchaser  protected  against 
constructive  or  resulting  trust:  Warnock  v.  Harlow,  96  Cal.  298,  31  Pac.  166, 
31  Am.  at.  Rep.  209.  Against  equitable  mortgage  lien:  Lynch  v.  Murphy, 
Kil  U.  S.  247,  16  Sup.  Ct.  523.  Against  grantor's  lien:  see  post,  §  1253.  Against 
express  trust:  Learned  v.  Tritch,  6  Colo.  432;  see  post,  §  1048.  Against  the 
commiinity  property  interest  of  a  married  woman:  Patty  v.  Middleton,  82  Tex. 
586,  17  tS.  VV.  909.  Against  an  unrecorded  defeasance:  Frink  v.  Adams.  36  N. 
J.  Eq.  485;  see  post,  §  1196.  Against  an  unrecorded  mortgage:  Saffokl  v. 
Wade's  Ex'r,  51   Ala.  21(1. 

"Barney  v.  McCarty,  15  Iowa  510,  S3  Am.  Dec.  427;  Bigley  v.  Jones,  114 
Pa.   St.   517,   7  At).   54. 

^  W  estbrook  v.  (Tleasnn.  79  X.  Y.  23.  30.  31  :  Economy  Sa\t  Bank  v.  Gordon, 
90  Md.  480,  45  Atl.  17R,  48  L.  R.  A.  03,  H.  &.  B.  19.     See  ante,  §§  733,  734. 


373  coNCEHXixt;    hona  fide  puuchase.  §  7T1 

not  eonfined  to  a  dcrciuUuit  who  obtained  the  legal  iillc  contempora- 
neously with  his  original  purchase.  It  includes  those  eases  wher.-. 
of  several  successive  purchasers  holding  e(|uitable  estates,  one  of 
them  later  in  time  has  obtained  an  outstanding  legal  estate.  By 
far  the  most  frequent  instance  in  England  is  that  of  three  or  more 
successive  mortgagees  by  conveyance,  A,  B,  and  C,  where  the 
first  only  would  obtain  the  legal  estate  and  the  others  an  equitable 
one.  If  C,  at  the  time  of  loaning  his  money  and  taking  his  mortgage, 
had  no  notice  of  B's  prior  encumbrance, — that  is,  was  a  bona  fide 
purchaser  of  the  equitable  estate, — on  afterwards  learning  of  B's 
claim,  he  may  buy  in  or  procure  a  transfer  of  A's  mortgage  to  him- 
self, and  may  thus  put  himself  in  a  position  of  perfect  defense 
against  the  enforcement  of  B's  lien;  he  thus  acquires,  in  fact,  not 
only  a  defense  to  any  suit  brought  by  B,  but  the  absolute  precedence 
over  B  in  the  satisfaction  of  the  liens  out  of  the  mortgaged  prem- 
ises.^ This  particular  application  of  the  doctrine  to  successive  mort- 
gages'is  known  in  the  English  equity  as  the  rule  concerning  "tack- 
ing.''— a  rule  Avhich  has  been  universally  rejected  by  the  courts  of 
the   various   states. 

§  770.  The  Purchaser  Acquires  the  Legal  Estate  from  a  Trustee. 
— The  exception  already  mentioned  is  no  less  firmly  settled.  It  has 
already  been  seen  that  one  who  obtains  the  legal  title  at  the  time 
of  and  as  a  part  of  his  original  purpose  may  acquire  his  estate 
from  a  trustee  in  derogation  of  the  trust ;  but  if  he  purchases  in 
good  faith  and  for  value  and  without  notice,  he  will  be  protected 
against  the  claims  of  the  beneficiary,  and  hold  the  property  free 
from  the  trust;  and  this  effect  extends  in  equity  not  only  to  con- 
veyances of  land,  but  to  transfers  of  all  kinds  of  personal  prop- 
erty.^ .  .  .  When  we  pass  to  the  other  condition,  of  the  purchaser 
of  an  equitable  estate  seeking  to  obtain  protection  by  getting  in 
the  legal  title,  .  .  .  the  purchaser  would  not  be  protected;  taking 
the  legal  estate  from  the  trustee  with  notice  of  the  existing  trust, 
he  would  himself  become  a  trustee.  In  this  conclusion  the  decisions 
are  unanimous,  holding  that  the  purchaser  without  notice  and  for 
value  of  an  equitable  estate  cannot  after  notice  protect  himself 
and  defeat  the  claims  of  the  prior  beneficial  owner  by  getting  a 
conveyance  of  the  legal  title  from  the  trustee." 

§  771.    The  Rule  as  Applied  in  the  United  States. — Although  the 

Mirace  v.  Duchess  of  5larllioroiifrli,  2  P.  Wins.  401,  1  Scott.  330.  350;  Young 
v.  Young,  L.  R.  3  Eq.  801:   Bates  v.  Johnson.  .Tohns.  304,  .\nies  Trusts  292. 

'Thorndike  v.  Hunt,  3  De  Gex  &  J.  563;  Smith  v.  Willard,  174  111.  538,  51 
N.  K.  835,  06  Am.  St.  Rep.  313:   Coleman  v.  Dunton    (Mo.).  5S  Atl.  430. 

'"Saunders  v.  Dchew.  2  Vern.  270,  Ames  Trusts  280:  Carter  v.  Carter,  3  Kay  & 
J.  617.  642,  1  Scott  345;  Taylor  v.  London  and  County  Banking  Co.  (1001) 
2   Ch.   231. 


§  7T6  EQUITY     JUlIlSPHrDKNCE.  374 

modes  of  dealing  with  real  property  in  the  United  States  are  en- 
tirely unlike  those  prevailing  in  England,  and  although  the  forms 
and  species  of  the  estates  created  and  the  eircnmstanees  of  the 
transactions  coming  before  the  American  judges  are  very  dilferent 
from  those  passed  upon  by  the  English  chancellor,  yet  the  courts 
of  this  country  have  recognized  and  adopted  the  foregoing  doc- 
trines, and  have  applied  them  when  necessary  to  analogous  cases, 
and  under  analogous  conditions  of  fact.  Indeed,  the  defense  of 
bona  tide  purchase  has  sometimes  been  pushed  to  an  extent,  as  it 
seems,  not  warranted  by  the  established  doctrines.  It  has  been 
made  to  embrace  not  only  those  who  have  purchased  equitable 
estates  by  means  of  conveyances  purporting  to  transfer  the  v.hole 
title,  but  even  to  those  Avho  have  intentionally  acquired  a  mere 
equitable  interest  or  lien  by  executory  contract  or  otherwise,  knowing' 
that  the  legal  estate  was  held  by  another,  and  who,  upon  afterwards 
discovering  a  prior  and  conflicting  equity  in  favor  of  a  third  person, 
have  taken  a  conversance  of  that  legal  estate. 

§774.  Other  Instances — Purchaser  at  Execution  Sale' — Assignee 
of  Thing  in  Action.- — 

§775.  III.  Suits  by  the  Holder  of  an  "Equity."— In  all  the 
instances  of  the  preceding  subdivision,  the  plaintitf  has  held  some 
equitable  estate  or  interest  in  or  lien  upon  the  property,  which 
he  has  sought  to  establish  or  enforce  against  the  very  subject-mat- 
ter, either  by  perfecting  his  title  and  ownership,  or  by  subjecting 
it  to  his  encunibrance.  The  defense  of  bona  fide  purchase  is  not 
confined  to  such  plaintiffs;  it  avails  also  against  parties  who  claim 
to  have  some  "equity"  as  distinguished  from  an  equitable  estate 
or  interest, — parties,  that  is,  who  simply  claim  and  are  seeking 
to  obtain  some  peculiar  equitable  remedy,  such  as  reformation 
or  cancellation,  and  the  like.  In  this  respect  the  defen.se  is  a  protec- 
tion alike  to  defendants  who  have  a  legal  estate,  and  those  who 
have  purchased  an  equitable  interest.^ 

§  776.  Suits  for  Relief  against  Accident  or  Mistake. — Thus,  as 
against  a  subsequent  bona  fide  purchaser  for  value,  a  court  of  equity 
will  not  relieve  a  prior  party,  on  the  ground  of  accident  or  mistake, 
by  granting  a  remedy  otherwise  appropriate,  such  as  setting  aside 
a  conveyance  which  had  been  executed  by  the  plaintiff  under  a 
mistake  or  ignorance  of  his  rights,  or  correcting  an  instrument  ex- 
ecuted under  a  mistake   of  fact.^ 

'  See  ante,  §   724. 
=  See  ante,   §§701.   712.   713.   715. 

'Phillips  V.  Phillips,  4  De  C\ex,  F.  &  J.  20S.  21 S.  H.  &  R.  72.  Ames  Trusts 
3.31.   1    Scott  .3.33,  3.51,  per  Lord  Westbury. 

>Brll   V.   CiiiKlall,  Amb.    102,   2   Scott  040:    Snyder  v.   (Jrandstaff.   OG  Va.   473, 


375  coxcERNixn  bona  fide  itrchase.  §  780 

§  777.  Suits  for  Relief  against  Fraud  upon  Creditors  or  between 
Parties. — The  same  is  true  with  respect  to  the  remedy  of  cancella- 
tion in  suits  to  set  aside  conveyances  or  sales  on  account  of  fraud, 
either  as  against  the  creditors  of  the  grantor  or  against  the  grantor 
himself.  In  the  first  case,  where  a  conveyance  has  been  made 
with  intent  to  defraud  creditors  of  the  grantor,  so  that  it  would 
he  voidable  as  against  the  grantee,  but  this  grantee  has  in  turn 
conveyed  to  a  bona  fide  purchaser  for  value,  the  remedial  rights 
of  the  creditors  to  have  the  original  and  fraudulent  transfer  set 
aside  are  then  cut  oft',  and  the  purchaser  has  a  complete  defense 
against  their  claims.^  In  the  second  case  of  fraud  between  the 
parties,  where  a  conveyance  has  been  obtained  by  the  grantee's 
fraud,  so  that  it  w^ould  be  set  aside  at  the  suit  of  the  defrauded 
grantor,  but  the  fraudulent  grantee  has  in  turn  conveyed  to  a 
bona  fide  purchaser  for  value  and  without  notice,  the  latter  will 
take  and  hold  the  property  free  from  all  these  equities,  protected 
against  the  equitable  remedies  of  the  original   defrauded  owner.- 

§779.  Fourth.  Affirmative  Relief  to  a  Bona  Fide  Purchaser. — 
The  peculiar  theory  upon  which  equity  acts  toward  a  bona  fide 
purchaser  seems  of  necessity  to  imply  that  he  should  be  a  defend- 
ant. There  are  a  few  special  circumstances,  however,  in  which  the 
theory,  consistently  followed  out.  requires  that  he  should  be  aided 
by  affirmative  relief.  When  these  circumstances  are  carefully  ex- 
amined, it  will  be  found  that  the  fraud,  or  what  equity  regards 
as  fraud,  of  the  party  holding  the  prior  title  or  interest,  and  against 
whom  the  affirmative  relief  is  granted,  is  usually,  if  not  always, 
the  ground  upon  Avhich  the  court  interpo.ses  on  behalf  of  the 
subsequent  bona  fide  purchaser.  The  following  are  the  important 
instances  of  such  relief. 

§780.  Same.  Illustrations. — When  a  person,  A,  having  a  prior 
title  to  property,  and,  knowing  of  such  title,  actively  encourasres 
another  person.  B,  to  buy  the  same  property,  concealing  or  not  dis- 
closing his  own  interest,  but  leading  B  to  suppose  that  he  is  obtain- 
ing a  valid  title;  or  when,  under  the  same  circum.stances,  A  being 
informed  of  B's  intention,  and  being  brought  in  contact  with  and 
made  cognizant  of  the  transaction,  he  simply  keeps  silence  and  per- 
mits B  to  buy. — in  either  case,  B.  being  a  bona  fide  purchaser 
for  value  and  without  notice,  can  compel  a  conveyance  or  release 

70  Am.  St.  Rep.  80,3,  31  S.  E.  047;  Knoblock  v.  Mueller.  123  Til.  .5.54.  17  X.  E. 
finfi.  H.  &  B.  80. 

'Wood  V.  Mann.  1  Sum.  500.  1  Seott  .507:  Rowley  v.  Biselow.  12  Pirk.  307. 
23  Am.  Dec.  e07:.Zoel!er  v.  Riley.  100  N.  Y.  108,  2  X.  E.  388.  .53  Am.  Rep.  157. 

-  Fish  V.  Benson.  71  Tal.  429.  12  Pae.  4.54;  Indiana,  etc.,  R.  R.  Co.  v.  Bird,  IIC 
Jnd.  217.  18.  18  X.  E.  837,  9  Am.  St.  Rep.  842. 


§  783  KQUJTY     JUlM.sritUDJiXCE.  3TG 

by  A,  of  whatever  estate,  title,  or  interest  the  latter  has.  This  re- 
lief will  be  granted,  even  though  A  was  an  infant  or  a  married  wom- 
an, since  it  does  not  depend  upon  a  capacity  to  contract,  but  upon 
unrighteous  conduct.^ 

§  781.  Same.  Illustration. — The  second  important  class  of  cases 
in  which  relief  may  be  given  to  the  bona  tide  purchaser  is  that  of 
encumbrancers  who  have  misled  the  purchaser  by  their  words  or 
acts.  If  a  prior  encumbrancer,  upon  being  inquired  of  by  one  in- 
tetiding  to  purchase  the  property,  deny  the  existence  of  his  en- 
cumbrance, a  court  of  e(iuity  will  certainly  grant  affirmative  relief 
ti)  the  bona  tide  purchaser  who  has  thus  been  misled,  either  by  post- 
poning or  by  completely  setting  aside  the  encumbrance,  as  the 
circumstances  may  I'cquire.^  ]Mere  silence  of  an  encumbrancer  does 
not  render  him  liable,  where  he  has  no  connection  with  the  trans- 
action in  which  the  purchaser  is  engaged,  is  not  brought  into  any 
relations  with  the  parties,  and  is  not  placed  under  any  ecpiitable 
obligation  to  make  disclosure. 

§  782.  Same.  Illustrations. — In  the  tAvo  foregoing  classes  of 
cases  tile  one  who  makes  himself  subject  to  an  equity  in  favor  of 
tlie  bona  fide  purchaser  has  knowledge,  or  at  least  notice,  of  the 
title  or  encumbrance  with  respect  to  which  he  incurs  liability,  or 
against  which  the  purchaser  obtains  relief;  but  the  doctrine  has 
been  carried  one  step  fni'ther.  Where  a  person  is  actually  ignorant 
of  his  own  right  in  certain  property,  but  under  such  circumstances 
that  he  miiiht  have  had  notice  of  it,  or  ought  with  reasonable  care 
to  have  known  of  it,  and  he  makes  a  representation  untrue  in  fact 
to  one  intending  to  deal  concerning  the  property,  and  this  party, 
)clying  upon  the  statement,  becomes  a  bona  fide  purchaser,  equity 
will  relieve  such  purchaser  as  against  the  one  making  the  untrue 
representation,  although  no  liability  may  be  incurred  at  law.^  The 
justice  of  this  rule  is  plain,  for  equity  often  proceeds  upon  higher 
motives  of  morality  than  those  which  sometimes  underlie  legal  rules. 
An  innocent  purchaser  should  not  suffer  loss  from  relying  upon 
the  untrue  statements  of  another,  although  not  made  with  an  intent 
to  mislead  or  deceive:  in  adjusting  the  loss  between  the  two  who 
are  botli  innocent  of  an  intentional  wrong,  e<iuity  properly  lays  it 
upon  him  v;ho,  by  his  acts  or  words,  lias  made  the  loss  possible. 

§  783.  Same.  Removing-  a  Cloud  from  a  Title. — In  addition  to 
the  foregoing  cases,  all  based  upon  an  element  of  fraud,  actual  or 

^Savage  v.  Foster,  9  Mod.  ,'?5,  1  Scott  570;  Hohhs  v.  Xorton.  1  Vcrn.  1.36, 
1  Pcott  .554:  Sharpe  v.  Foy.  L.  R.  4  Ch.  .S5. 

'  Ib1)ot.son  v.  Rhodes,  2  Vern.  554. 

-Osboni  V.  J.ea,  9  Mod.  96. 

'Teasdale  v.  Teasdale,  Sel.  Cas.  Ch.  59.  1  Scott  558:  West  v.  .Tones.  1  Sim. 
N.  S.  205,  207,  208;   Richardson  v.  Cliickering,  41  X.  H.  380,  77  Am.  Dec.  769, 


377  CONCERNING    BONA    FIDE    I'URCITASE.  §  T85 

constructive,  affirmative  relief  may  be  granted  to  a  bona  fide  pur- 
chaser, under  some  other  circumstances,  to  remove  a  cloud  upon  his 
title;  that  is.  to  set  aside  judgments,  mortgages,  and  the  like,  which 
are  apparent  liens,  but  in  reality  inoperative  as  against  him,  where 
the  law  would  furnish  no  adecjuate  remedy.^ 

§  784.  Fifth.  Mode  and  Form  of  the  Defense. — I  shall  conclude 
the  discussion  of  this  subject  with  a  very  brief  consideration  of  the 
manner  in  which  the  bona  fide  purchaser  may  avail  himself  of  the 
defense,  the  pleadings  by  which  it  may  be  set  up,  and  the  necessary 
contents  of  those  pleadings.  Under  the  system  of  procedure  and 
pleading  peculiar  to  a  court  of  chancery,  and  in  whatever  tribunals 
that  system  is  still  preserved,  the  defense  may  be  raised  in  three 
different  manners.  If  the  fact  that  the  defendant  is  a  bona  fide 
purchaser  for  value  without  notice  is  clearly  shown  by  the  bill  of 
complaint,  the  defendant  may  resort  to  a  demurrer. ^  The  usual 
mode  of  presenting  the  defense  is  by  a  plea;  and  if  it  contains  the 
requisite  averments,  and  they  are  established  by  evidence,  the  suit 
will  be  dismissed  without  the  necessitj^  of  an  answer  on  the  merits. 
Instead  of  resorting  to  a  "plea,"  the  defendant  may  set  out  the 
facts  constituting  this  defense  in  his  answer.-  If  he  neglects  to 
put  in  a  plea,  and  fails  to  insert  the  defense  in  his  answer,  he  can- 
not raise  it  or  avail  himself  of  it  in  any  sub.sequent  stage  of  the 
suit.-''  Wherever  the  reformed  system  of  procedure  prevails,  and 
all  remedies,  equitable  as  well  as  legal,  are  obtained  through  the 
single  "civil  action,"  the  defense  must,  of  course,  be  taken  advan- 
tage of,  either  by  demurrer  or  by  answer.  Unless  the  facts  appear 
on  the  face  of  the  complaint  so  as  to  permit  a  demurrer,  there  can 
be  no  doubt  that  in  the  new  system  as  well  as  in  the  old  the  defense 
must  be  pleaded,  in  order  to  be  available.* 

§  785.  Necessary  Allegations. — The  allegations  of  the  plea,  or  of 
the  answer  so  far  as  it  relates  to  this  defense,  must  include  all  those 
particulars  which,  as  has  been  shown,  are  necessary  to  constitute 
a  bona  fide  purchase.^  It  should  state  the  consideration,  which 
must  appear  from  the  averment  to  be  "valuable"  Avithin  the  mean- 
ing of  the   rules  upon  that  subject,  and   should   show   that   it   has 

'Filley  v.  Uuiican,  1   Nob.   1.34,  93  Am.  Dec.  337. 

'  Afitford's  Eq.  PI.  190. 

=^Rorer  Iron  Co.  v.  Trout,  83  Va.  397,  410.  2  S.  E.  713.  5  Am.  St.  Rop.  28."). 

=  Phillips  V.  Phillips,  4  De  Gex.  F.  &  .1.  208.  H.  I't  P..  72.  Ames  Trusts  331, 
1  Scott  333,  511:  Eorpr  Iron  Co.  v.  Trout.  S3  Va.  397.  419.  2  S.  E.  713,  .",  Am.  Sf. 
Rpp.    28.5. 

'Bossick  Mill.  Co.  v.  Davis,  11  Colo.  1.30.  17  V-.u:  294:  W.hor  v.  Rolhcliild, 
1.5  Oreg.  385.  15  Pac.  (5.50.  3  Am.  St.  Rep.  102. 

M  ptoii  V.  Retts,  50  Tvebr.  724,  82  N.  W.  19;  Everts  v.  Agnes,  4  Wis.  343, 
65  Am.   Dec.   314. 


§  785  KQUJTY     JUIUSPKUDEXCE.  378 

actually  been  paid,  and  iiot  merely  secured."  It  should  also  deny 
notice  in  the  fullest  and  clearest  manner,  and  this  denial  is  neces- 
sary, whether  notice  is  charged  in  the  complaint  or  not."  The  denial 
jnust  coj-respond  Avith  the  settled  rules  upon  the  subject  of  notice, 
so  as  to  bring'  the  case  within  the  operation  of  those  rules.*  .  . 
It  should  be  remembered,  however,  in  applying  the  doctrine,  that 
it  has  been  materially  modified  by  the  recording  statutes.  When- 
ever, as  is  commonl}'  the  case  in  this  country,  the  defense  of  bona 
fide  purchase  arises  in  connection  with  recording,  the  true  rule 
would  seem  to  be  as  follows:  The  defendant  must  aver  in  his  plea 
or  answer  that  he  has  purchased  an  estate  which  comes  within  the 
protection  of  the  recording  acts ;  or  in  other  words,  that  he  has 
purchased  an  estate  or  interest,  legal  or  equitable,  of  such  a  kind 
that  the  conveyance  or  instrument  constituting  his  muniment  of 
title  must  or  7)i(ii/  be  recorded,  so  that  by  his  recording  it  he  can 
obtain  the  protection  which  the  statutes  give  to  such  a  bona  fide 
purchaser  who  has  first  put  his  instrument  of  title  on  record.^ 


SECTION  VIII. 

CONCERNING  MERCER. 

AXAI.YSIS. 

§   730.  Origin  and  nature  of  tlie  doctrine. 
5S   7S7, 788.  First.     :Mcroer    of    estates. 

§   787.  1.  The    legal   doctrine. 

S   788.  J  I.   Tlio  eqiiital)le  doctrine. 
§S   7S0-800.  ^Second.     ^lerger    of    charges. 

§   700.  J.  The  owner  of  tlie  property  becomes  entitled  1o  tlie  cliarge. 

S   71)1.  Same.      Intention  prevents  a   merger. 

§   702.  Time  and  mode  of  expressing  the  intention. 

§   703.  Conveyance  to   the  mortgagee;    assignment   to   the   mortgagor  or  to 
his  grantee. 

S   704.  Merger  never  prevented   when   fraud   or   wrong  would   result. 

§   705.  J^ife  tenant   becomes  entitletl  to  llic   cliarge. 

§   796.  Jl.  Tlie  owner  of  the  land  pays  off  a  charge  ii])on   it. 

§   707.  OMner  in  fee  personally  liable  for  the  delit  i«)ys  off  a  cliarge. 

§    708.  Owner  who  is  not   liable  for  the  debt  Jiays  off  a   charge. 

§   700.  Life  tenant  pays  off  a  charge. 

§   800.  Priorities  affected  Yiy  merger. 

-Ipton  V.  Belts,  50  Nebr.  724.  82  N.  W.  10;  Everts  v.  Agnes.  4  Wis.  .'^>4.3, 
C")  Am.  Dec.   314.     See  ante,   §§  746-7.')l. 

^  Upton  V.  Belts.  50  Nebr.  724,  82  N.  W.  10;  Rorer  Iron  Co.  v.  Trout.  83  Va. 
307,  419,  2  S.  E.  713.  5  Am.  St.  Rep.  285. 

*See  ante,  §§  752-75(5.  McDonald  v.  Belding.  145  U.  S.  402,  12  Sup.  CI.  802; 
Weber  v.  Rotiichild.  15  Oreg.  385,  15  Pac.  650,  3  Am.  St.  Rep.  162  (good  faith 
rdiould   be   averred). 

^  See  ante,  SS  757-761. 


379  CONCKKNiXG   :mki;gi:i{.  §  "iSS 

§  786.  Orig-in  and  Nature  of  the  Doctrine. — The  applications  of 
the  equitable  doctrine  concerning'  merger,  althoujjh  resting  upon 
the  same  general  principle,  are  various  in  form,  and  some  of  them 
are  of  frequent  occurence  in  this  country.  The  single  principle 
from  which  the  doctrine,  in  all  its  modes  and  forms  of  application, 
directly  results  is  the  fruitful  maxim,  that  equity,  in  viewing  the 
transactions  of  men,  and  in  determining  the  rights  and  liabilities 
arising-  therefrom,  looks  at  the  7-eal  intent  of  the  parties  as  con- 
Ktituting  the  essential  substance,  and  not  at  the  mere  external  form. 
In  this  method  of  viewing^  the  affairs  of  mankind,  equity  often  es- 
tablishes different  rules,  creating  different  rights  and  duties  from 
t/lose  which,  under  the  same  circumstances,  prevail  at  law.^  The 
equitable  doctrine  of  merger  is  a  striking  illustration  of  this  most 
righteous  principle ;  and  the  whole  discussion  in  fact  consists  in 
ascertaining-  when  and  how  a  merger,  which  would  have  been  in- 
evitable at  law,  will  be  prevented  or  not  permitted  in  equity.  The 
.subject  will  be  treated  of  under  the  two  following  divisions:  1. 
Merger  of  estates  in  the  same  land;  2.  Merger  of  charges — liens 
and  encumbrances — on  the  same  land. 

§  787.  First.  Merger  of  Estates. — I.  The  Legal  Doctrine. — 
The  rule  of  the  common  law  is  well  established,  and  of  almost  uni- 
versal application,  that  where  a  greater  and  a  less  legal  estate,  held 
in  the  same  right,  meet  in  the  same  person,  without  any  interme- 
diate estate,  a  merger  necessarily  takes  place.  The  lesser  estate 
ceases  to  exist,  being  merged  in  the  greater,  which  alone  remains; 
as  where  a  tenant  for  years  acquires  the  fee,  the  term  is  merged. 
For  the  purposes  of  a  merger,  by  the  common  law,  every  estate  of 
freehold  is  greater  than  any  term  of  years.  Both  estates,  however, 
must  be  held  in  the  same  right,  in  order  that  this  result  may  fol- 
loAv.^  .  .  .  The  general  doctrine  is  not  confined  to  the  union  of 
two  legal  estates.  Wherever,  in  like  manner,  a  legal  and  an  equal 
and  co-extensive  equitable  estate,  or  a  legal  and  a  less  equitable 
estate,  meet  in  the  same  person,  in  either  instance  the  equitable 
estate  is  merged  at  laAv,  for  the  law  regards  the  legal  estate  as  the 
superior.-     .     . 

§  788.  II.  The  Equitable  Doctrine. — Where  the  legal  estate — 
for  example,  the  fee — and  an  equal  co-extensive  equitable  estate 
unite  in  the  same  person,  the  merger  takes  place  in  equity,  in  the 
absence  of  acts  showing  an  intention  to  prevent  it,  as  certainly  and 

*  See  ante,  vol.  1,  §§Tr78-384.  "Equity  looks  to  the  intent,  ratlier  than  to 
the   form." 

^Boykin  v.  Ancrum,  28  S.  C.  48G,  0  S.  E.  305,  13  Am.  St.  Rep.  698;  Forth- 
man  v.  Deters,  99  Am.  St.  Rep.  145,  200  111.  159,  69  N.  E.  97:  2  Black.  Com.  157. 

^'Selby  T.  Alston,  3  Ves.  339;  Welsh  v.  riiillips,  54  Ala.  309,  25  Am.  Rep.  679. 


§  789  EQUITY     .TrRISPRUDENCE.  380 

as  directly  as  at  the  law.  Under  these  circumstanres,  merger  is 
prima  facie  the  equitable  as  well  as  legal  rule.^  .  .  .  Where  the 
owner  of  a  legal  estate — as,  for  example,  the  fee — acquires  by  pnr- 
chase  or  in  any  other  manner  a  lesser  ecpiitable  estate  not  co-ex- 
tensive and  commensurate  with  his  legal  estate,  or  a  lesser  legal 
estate,  a  distinction  exists;  the  merger,  although  taking  place  at 
law,  does  not  necessarily  take  place  in  equity;  indeed,  it  may  be 
said  that  the  leaning  of  equity  is  then  against  any  merger,  and  that, 
prima  facie,  it  does  not  result.  The  settled  rule  of  ecpiity  is,  that 
the  intention  of  the  one  acquiring  the  two  interests  then  controls. 
If  this  intention  has  been  expressed  by  taking  the  transfer  to  a 
trustee,  or  by  language  inserted  in  the  instrument  of  transfer,  it 
will,  of  course,  be  followed.  If  the  intention  has  not  been  thus  ex- 
pressed, it  will  be  sought  for  and  ascertained  in  all  the  circum- 
stances of  the  transaction.  If  it  appears  from  all  these  circum- 
stances to  be  for  the  benefit  of  the  party  acquiring  both  interests 
that  a  merger  shall  not  take  place,  but  that  the  equitable  or  lesser 
estate  shall  be  kept  alive,  then  his  intention  that  such  a  result  should 
follow  will  be  presumed,  and  equity  will  carry  it  into  execution  by 
pieventing  a  merger,  and  by  treating  the  equitable  or  lesser  inter- 
est as  subsisting,  and  by  admitting  all  the  consequences,  for  the 
protection  of  the  party  with  respect  to  other  matters,  which  ueces« 
sarily  result  from  the  fact  of  the  equitable  estate  being  left  in 
existence.-  The  same  rule  may  be  stated  in  a  negative  form.  If 
from  all  the  circumstances  a  merger  would  be  disadvantageous  to 
the  party,  then  his  intention  that  it  should  not  result  will  be  pre- 
sumed and  maintained.     .     .     . 

1$  789.  Second.  Merger  of  Charges. — Whenever  the  owner  of 
the  legal  estate  in  land  becomes  also  the  holder  of  any  charge  di- 
i-ectly  resting  upon  it,  the  latter  merges  at  law  and  disappears  in 
the  same  manner  as  a  lesser  estate  merges.  The  equitable  doctrine 
preventing  the  merger  under  these  circumstances  is  even  stronger 
and  more  readily  applied  than  m  the  case  of  two  estates.  The 
"charges"  referred  to  include  mortgages,  and  other  liens  and  en- 
cumbrances, and  sometimes  easements,  servitudes,  and  similar  in- 
terests which  are  not  rights  of  property  or  estates.  There  are  two 
principal  conditions  of  fact  to  be  considered  :  1.  Where  the  legal 
owner  of  the  propertj''  becomes,  'by  bequest,  devolution,  or  transfer, 
h(^!der  of  the  charge;  2.  Where  the  owner  of  the  property  volun- 
tarily pays  off  the  charge. 

'  firydgps  V.  JJrydges,  3  Ves.  125a;  James  v.  Morey,  2  Cow.  24G,  14  Am. 
Dee.    475. 

■■^  Sheehan  v.  Hamilton,  2  Kcyes  304,  4  Abb.  App.  211;  W'ettlaufer  v.  Ames 
(Mieh.),  94  N.  W.  050;  Hudson,  etc.,  Co.  v.  Gleneoe,  etc.,  Co.,  140  Mo.  103, 
41   S.  W.  450,   02  Am.  St.  Rep.   722. 


oSl  CONCKUMNG   :\ii:r.GEr!.  §  I'Jl 

j  790.  I.  The  Owner  of  the  Property  Becomes  Entitled  to  the 
Charge, — Wheu  the  OAvner  of  the  fee  becomes  absolutely  entitled 
in  his  own  right  to  a  charge  or  encumbrance  upon  the  same  land. 
Avith  no  intervening  interest  or  lien,  the  charge  will,  at  law,  merge 
in  the  ownership  and  cease  to  exist.  Under  like  circumstances  a 
merger  will  take  place  in  equity,  where  no  intention  to  prevent  it 
has  been  expressed,  and  none  is  implied  from  the  circumstances 
and  the  interests  of  the  party;  and  a  presumption  in  such  a  case 
a)-ises  in  favor  of  the  merger.^  Generally,  the  same  result  follows 
whether  a  mortgagee  assigns  a  mortgage  to  the  mortgagor,  or  the 
mortgagor  conveys  the  land  to  the  mortgagee.-  The  merger  of  a 
charge  or  encumbrance  under  these  circumstances  is,  however,  ni 
most  instances  only  a  presumption,  w^hich  can  generally  be  over- 
come, and  which  sometimes  does  not  even  arise.^ 

^  791.  Same.  Intention  Prevents  a  Merger. — The  equitable  doc- 
trine concerning  the  merger,  where  the  owner  of  the  fee  becomes 
entitled  to  the  charge  or  encumbrance,  may  be  stated  as  follows, 
substantially  in  the  language  of  most  eminent  judges.  Sir  William 
Grant  says:  "The  question  is  upon  the  intention,  actual  or  pre- 
sumed, of  the  person  in  whom  the  interests  are  united."  Sir  George 
Jessel  says:  "In.  a  court  of  equity  it  has  always  been  held  that 
the  mere  fact  of  a  charge  having  been  paid  off  does  not  decide  the 
question  whether  it  is  extinguished.  If  a  charge  is  paid  off  by  a 
tenant  for  life,  without  any  expression  of  his  intention,  it  is  well 
established  that  he  retains  the  benefit  of  it  against  the  inheritance. 
Although  he  has  not  declared  his  intention  of  keeping  it  alive,  it 
is  presumed  that  his  intention  was  to  keep  it  alive,  because  it  is 
manifestly  for  his  benefit.  On  the  other  hand,  when  the  owner  of 
an  estate  in  fee  pays  off  or  becomes  entitled  to  a  charge,  the  pre- 
sumption is  the  other  way.  but  he  can,  by  expressly  declaring  his 
intention,  either  keep  it  alive  or  destroy  it.  If  there  is  no  reason 
for  keeping  it  alive,  then  equity  will,  in  the  absence  of  any  declara- 
tion of  his  intention,  destroy  it;  hut  if  tlipre  is  any  reason  for  hecpivg 
it  alive,  such  as  the  existence  of  another  encumbrance,  equity  vUl 
not  destroy  it."  In  short,  where  the  legal  ownership  of  th'e  land 
and  the  absolute  ownership  of  the  encumbrance  become  vested  in 
the  same  person,  the  intention  governs  the  merger  in  equity.^  If 
this  intention  has  been  expressed,  it  controls;  in  the  absence  of 
such  an  expression,  the  intention  will  be  presumed  from  what  ap- 

'Donk  V.  Alexander,   117   111.   .330.  7  N.   E.   672. 

-Ajjnew  V.  R.  R.  Co.,  24  8.  C.  IS.  ,58  Am.  Rep.  237.  See,  also,  Howard  v. 
Clark,  71  Vt.  424,  76  Am.  St.  Rep.  782. 

^  Adams  v.  Angell,  L.  R.  5  Ch.  Div.  034.  041,  04.5. 
»Aj?new  V.  R.  R.  Co.,  24  S.  C.   18.  .IS   Am.  Rep.  237. 


§  792  EQUITY    Jur.ispiaDENCE.  382 

pear  to  be  the  best  interests  of  the  party  as  shown  by  all  the  cir- 
cumstances; if  his  interests  require  the  encumbrance  to  be  kept 
alive,  his  intention  to  do  so  will  be  inferred  and  followed;  if,  on  the 
contrar}^,  his  best  interests  are  not  opposed  to  a  merger,  then  a 
merger  will  take  place  according  to  his  supposed  intention.-  This 
is  the  general  rule,  subject,  however,  to  one  important  exception, 
to  be  mentioned  in  a  subsequent  paragraph.^  If  the  person  expressly 
declares  his  intention  that  the  charge  shall  be  kept  on  foot,  no  ques- 
tion can  generally  arise,  for  he  can,  Avith  the  single  exception  men- 
tioned, always  prevent  a  merger  in  this  manner.*  The  presumption 
of  an  intent  to  preserve  the  encumbrance  alive  may,  on  the  other 
hand,  be  inferred  from  the  circumstances  of  the  case,  from  the 
position  of  the  owner's  property,  and  especially  from  the  fact  that 
a  merger  would  let  in  other  charges  or  encum.brances." 

§  792.  Time  and  Mode  of  the  Intention. — While  the  intention 
controls,  it  must  be  understood  as  the  intention  existing  at  the  time 
the  two  interests  came  together.  If  there  was  then  no  intention 
to  keep  the  encumbrance  alive,  a  merger  cannot  be  prevented  by 
an  intention  afterwards  formed  and  expressed,  or  from  a  subse- 
<iuent  change  of  circumstances  from  Avhich  an  intention  might  be 
inferred.^  Where  the  intention  is  expressed,  it  may  be  by  the  man- 
ner in  which  the  encumbrance  is  transferred,  as  to  a  trustee  for  tlie 
owner  of  the  land,  or  by  recitals  or  other  language  in  the  assign- 
ment of  the  security  or  conveyance  of  the  land;  no  particular  mode 
is  requisite,  provided  the  intention  is  sufficiently  declared.-  If 
there  is  no  expression  of  an  intention  at  the  time,  then  all  the  cir- 
cumstances will  be  considered,  in  order  to  discover  what  is  for  the 
best  interests  of  the  party.  He  will  be  presumed  to  have  intended 
that  the  charge  should  be  kept  alive  or  should  merge  according  to 
the  benefit  resulting  from  either.  If  a  merger  would  let  in  other 
encumbrances  which  he  was  not  already  hound  to  pay,  this  is  a  cir- 
cumstance almost  decisive  of  an  intention  not  to  permit  a  merger.^ 
Parol  evidence  of  all  the  surrounding  circumstances  of  the  trans- 


*  Title  Guarantee  Co.  v.  Wrenii,  .3.")  Or.  02,  5G  Pac.  271,  7G  Am.  St.  Rej).  454. 
=  See   post,    §797;    Forbes   v.    :\[offatt,    IS    Vcs.    3S4,    per    Sir    William    Grant; 

Boos  V.  Morgan,  130  Ind.  305,  30  X.  E.  141,  30  Am.  St.  Rep.  237. 

*'lVrwhitt  V.  Tyrwhitl,  32  Beav.  244;  Agnew  v.  R.  R.  Co.,  24  S.  C.  IS,  58 
Am.   Rep.   237. 

'^Tyrwhitt  v.  Tyrwhitt,  32  Beav.  214:  Lnwman  v.  Lowman,  US  111.  582,  9 
X.    K.   245. 

'  Loomer  v.  Wheelwright,  3  Sand.  Ch.   135,  157. 

*  Crosby  v.  Taylor,  15  Gray  64,  77  Am.  Dec.  352:  CJresham  v.  Ware,  79  Ala. 
192. 

'Smith  V.  Roberts,  91  N.  Y.  470;  Clark  v.  Glos,  180  111.  55(5,  54  N.  E.  G31, 
72  Am.  St.  Rep.  223. 


383  coxcKRXiNG   :mekgkr.  §  794 

action  and  of  the  property  is  tlierel'ure  achnissible,  for  the  pui'pose 
of  discovering  the  intention,  or  to  show  that  a  merger  must  take 
phice/  and  also  to  show  fraud,  but  not  to  prove  the  intention  di- 
reetly.^ 

§  793.  Conveyance  to  the  Mortgagee — Assignment  to  the  Mort- 
gagor or  to  his  Grantee. — Where  a  mortgagee  takes  a  conveyance 
of  the  land  from  the  mortgagor  or  from  a  grantee  of  the  mortgagoi-, 
if  the  transaction  is  fair,  the  presumption  of  an  intention  to  keep 
the  security  alive  is  very  strong.  It  is  generally  for  the  interests 
of  the  part}'  in  this  position  that  the  mortgage  should  not  merge, 
but  should  be  preserved  to  retain  a  priority  over  other  encum- 
brances. As  the  mortgagee  acquiring  the  land  is  not  the  debtor 
part}'  bound  to  pay  off  either  the  mortgage  or  the  other  encum- 
brances on  the  land,  there  is  nothing  to  prevent  equity  from  carry- 
ing out  his  presumed  iuteut,  by  decreeing  against  a  merger.^  On 
the  other  hand,  an  assignment  of  the  mortgage  to  the  mortgagor 
himself  raises  a  contrary  presumption.  At  least,  the  presumption 
of  a  merger  is  much  stronger  in  this  case;  it  is  generally  the  in- 
tention, and  is  often  the  dut}^  of  the  mortgagor  to  pay  off  and 
discharge  the  encumbrance  by  thus  becoming  the  holder  of  it,  and 
there  is  a  clear  distinction  between  the  two  cases,^  An  assignment 
of  a  mortgage  to  a  grantee  of  the  mortgagor,  unless  he  has  ex- 
pressly assumed  to  pay  it  and  thus  made  himself  the  principal  debt- 
or, does  not  generally  create  a  merger."  It  generally  being  for  the 
interest  of  such  grantee  to  keep  the  mortgage  alive,  and  to  main- 
tain by  its  means  a  priority  over  any  subsequent  encumbrance  or 
title,  such  an  intention  will  be  presumed  and  carried  into  effect  by 
a  court  of  equity.*  When  a  mortgage  upon  the  whole  land  is  as- 
signed to  one  of  tAvo  or  more  tenants  in  common,  it  is  not  merged, 
but  may  be  retained  and  enforced  by  him  against  his  co-tenants.'^ 

i$  794.  Merger  never  Prevented  when  Fraud  or  Wrong  w^ould 
Result. — AVhatever  may  be  the  circumstances,  or  between  whatever 
parties,  equity  will  never  allow  a  merger  to  be  i)revented  and  a 
mortgage  or  other  security  to  be  kept  alive,  when  this  result  would 

*  Smith  V.  Roberts,  91   N.  Y.  470. 

=-  .MoCabe  v.   Swape,   14   Allen   188. 

^Forthman  v.  Deters,  20G  111.  IfjO,  99  Am.  St.  Rep.  14,5,  09  N.  E.  97;  Factors', 
etc.,  Jns  Co.  v..  Murphy,  111  U.  S.  738,  4  Sup.  Ct.  679;  Curtis  v.  Moore,  152 
X.   V.   159,  46  X.   E.   168,  57   Am.  St.   Rep.   500. 

-  1(1. 

M;iark  V.  (;ios,  180  111.  556.  54  X.  K.  031,  72  Am.  St.  Rep.  223;  Forllmian 
V.  Deters,  200    111. -liiO,  fi9  X.   E.   97.  99  Am.   St.  Rep.   145. 

*Savao'e  v.  Hall,  12  Oray  363:  Liquidation  Estates  Purchase  Co.  v.  Wil- 
lonirhby    (1898),  App.   Cas.   321. 

^Titswoi-th  V.  Stout,  49  111.  78,  95  Am.  Dec.  577;  ^IcDaniel  v.  Stroud,  106 
Fed.   480,   45   C.   C,   A.   446. 


§  796  EQUITY     JUKISrUUDENCK.  384 

aid  in  carryintr  a  fraud  or  other  iincouseientious  wrong  into  effect, 
under  the  e()h)r  of  legal  forms.  Equity  only  inteqjoses  to  prevent 
a  merger,  in  order  thereby  to  work  substantial  justice.^ 

§  795.  Life  Tenant  becomes  Entitled  to  the  Charge. — When  a 
life  tenant  becomes  entitled  to  a  mortgage  or  other  charge  upon  the 
entire  inheritance,  no  presumption  of  a  merger  arises.  The  trans- 
action is  presumed  to  be  for  his  own  benefit.  The  security  does  not 
merge,  but  remains  in  his  hands  a  valid  encumbrance  which  he  may 
enforce  against  the  inheritance.^  The  same  rule  applies  to  every 
one  who  has  only  a  partial  interest  in  the  land  subject  to  a  charge, 
such  as  a  tenant  in  common  or  a  lessee. " 

§  796.  II.  The  Owner  of  the  Land  Pays  off  a  Charge  upon  It. — 
The  questions  now  to  be  considered  are  (luite  different  from  those 
already  discussed.  In  the  preceding  subdivision  (I.)  the  ownership 
of  the  land  and  of  the  charge  have  become  united  in  any  manner 
in  the  same  person,  either  by  the  owner  of  the  land  acquiring  the 
charge,  or  by  the  holder  of  the  charge  acquiring  title  to  the  land. 
Assuming  it  possible  that  the  two  interests  may  be  kept  distinct,  the 
questions  discussed  are,  whether  the  charge  merges  or  does  not 
merge ;  when  it  is  kept  alive  and  when  it  disappears.  In  the  present 
division  we  have  the  single  condition  of  fact,  that  the  owner  of  the 
land  which  is  subject  to  a  charge,  mortgage,  or  other  encumbrance 
paj's  it  off;  whether  upon  so  doing  he  takes  a  formal  assignment  or 
not  is  often  innnaterial.  Under  these  circiunstanees  the  distinctive 
(luestion  to  be  now  examined  is,  whether  it  is  possible  for  the 
party  thus  paying  oft'  a  charge  to  keep  it  alive  as  a  subsisting  en- 
cumbrance in  any  manner,  by  any  form  of  proceeding ;  or  whether 
the  charge  must  necessarily  merge  in  the  OAvnership,  and  cease  to 
f^xist.  If  it  cannot  possibly  be  kept  alive,  then  all  further  questions 
of  the  party's  intention,  expressed  or  presumed,  are  meaningless. 
If  a  merger  is  not  necessary,  and  the  charge  can  be  kept  alive,  then 
the  questions  concerning  the  party's  intention,  expressed  or  pre- 
.sumed,  and  of  the  benefit  to  himself,  will,  of  course,  arise,  and  will 
be  governed  by  the  rules  formulated  in  the  preceding  subdivision. 
If  a  merger  can  be  prevented  when  the  owner  of  the  land  pays  off  a 
charge,  the  question  whether  there  is  a  merger  or  not  depends  upon 
his  intention,  in  the  manner  already  explained.  There  are  two 
cases  to  be  considered :  1.  When  the  owner  in  fee  pays  off  a  charge ; 
"2.  When  a  life  tenant  or  other  owner  of  a  partial  interest  pays  off 
a  charge. 

^Forthnian  v.  Deters,  200  111.  159,  99  Am.  St.  Rep.  14.5,  GO  X.  E.  97. 
'Morley  v.   Morley.   5   De  Gex,   M.   &   G.    610;    Olnnor   v.    P.oyer,   89   Ala.    273, 
7    (South.    06.3. 

''Titsworth  v.  IStout,  49  111.  78,  95  Am.  Dec.  577:  Clark  v.  Clark,  56  N".  H.  105. 


385  CONCERXIXG     MERGKi;.  §  7".)!' 

§  797.  1.  Owner  in  Fee  Fays  off  a  Charge. — An  owner  of  the 
fee  subject  to  a  charge,  who  is  himself  tlie  principal  and  primary 
<lobtor,  and  is  liable  personally  and  primarily  for  the  debt  secured. 
cannot  pay  off  the  charge,  and  in  any  manner  or  by  any  form  of 
transfer  keep  it  alive.  Payment  by  such  a  person  and  under  such 
c'ii'cumstanees  necessarily  amounts  to  a  discharge.  The  encumbrance 
cannot  be  prevented  from  merging  by  an  assignment  taken  directly 
to  the  owner  himself,  or  to  a  third  person  as  trustee.  This  rule  np- 
plies  especially  to  a  mortgagor  who  continues  to  be  the  primary 
and  principal  debtor.^  The  rule  also  applies  to  a  grantee  of  th(^ 
mortgagor  who  takes  a  conveyance  of  the  land  subject  to  the  mort- 
gage, and  expressly  assumes  and  promises  to  pay  it  as  a  part  of 
the  consideration.  He  is  thereby  made  the  principal  debtor,  and 
the  land  is  the  primary  fund  for  payment.  If  he  pays  off  the  mort- 
gage, it  is  extinguished.- 

§  798.  Owner  Who  is  not  Liable  for  the  Debt  Pays  off  the  Mort- 
gage.— On  the  other  hand,  when  an  owner  of  the  premises  who  is 
not  personally  and  primarily  liable  to  pay  the  debt  secured  pays  off' 
a  mortgage  or  other  charge  upon  it,  he  iuay  keep  the  lien  alive  as  a 
security  for  himself  against  other  encumbrances  or  titles,  and  thus 
prevent  a  merger.  Whether  he  does  so  is  a  question  of  intention, 
governed  by  the  rules  laid  down  in  the  previous  paragraphs.  When 
it  is  evidently  for  his  benefit,  the  intention  will  be  presumed.  He 
may  thus  be  entitled  to  preserve  the  lien,  even  without  a  formal 
assignment  of  the  security  to  himself.  Among  those  who  are  thus 
regarded  as  equitable  assignees  are  grantees  of  the  mortgagor  not 
having  assumed  payment  of  the  mortgage,  heirs,  devisees,  and  in 
fact  all  the  parties  entitled  to  redeem,  and  not  personally  liable  as 
principal  debtors.^ 

§  799.  2.  Life  Tenant  Pays  off  a  Charge.— The  rule  is  well  set- 
tled that  when  a  life  tenant,  or  any  other  person  having  a  partial 

'  Johnson  v.  Webster,  4  De  Gex,  :\I.  &  G.  474 ;  Jones  v.  Lamar,  .34  Fed.  4o4. 
Tlie  rule  does  not  necessarily  apply  to  every  mortgagor.  If  a  mortgagor  has 
conveyed  the  land  to  a  grantee,  who  has  expressly  assumed  and  promised  to  pay 
tlie  mortgage  as  a  part  of  the  consideration,  such  grantee  becomes  the  principal 
debtor,  primarily  liable,  and  the  mortgagor  assumes  the  position  of  a  surety. 
If  the  mortgagor  then  pays  off  the  mortgage,  he  may  pi-eserve  its  lien  alive  as 
a  security  against  the  land  for  his  own  reimbursement:  Bonsieck  v.  Cook,  110 
JVIo.  173.  19  S.  VV.  642,  33  Am.  St.  Rep.  422. 

-Russell  V.  Pistor,  7  N.  Y.  171:  57  Am.  Doc.  .500:  Forthman  v.  Deters,  206  111. 
].5fl.  (H)  N.  E.  97,  99  Am.  St.  Rep.  14.5.  If  a  person  who  has  conveyed  laud 
wren  a  covenant  warranting  against  encumbrances  afterwards  pays  off  or  takes 
an  assignment  of  a  mortgage  upon  the  premises,  the  same  becomes  extinguished; 
he  cannot  keep  it  alive  as  a  subsisting  lien,  for  to  do  so  would  be  a  direct  viola- 
tion of  his  own  covenant;  .Jones  v.  Lamar,  34  Fed.  454. 

'Boos  V.  Morgan,  130  Ind.  305,  30  N.  E.   141,  .30  Am.  St.  Rep.  237. 
25 


§  800  EQUITY     JURISPRUnENCE.  3P.'^- 

interest  only  in  the  inheritance  or  in  the  hind,  pays  oft"  a  ehar.t':^, 
mortgage,  or  encumbrance  on  the  entire  premises,  he  is  presume..' 
to  do  so  for  his  own  benefit.  The  lien  is  not  discharged  unless  he 
intentionally  release  it.  He  can  ahvays  keep  the  encumbrance  alive 
for  his  own  protection  and  reimbursement.  His  intention  to  do 
so  will  be  presumed  even  though  he  has  taken  no  assignment.  In 
fact,  his  payment  constitutes  him  an  equitable  assignee.^  The  rule 
is  most  frequently  applied  in  this  country  to  widows  entitled  to 
dower  in  premises  subject  to  a  mortgage.  If  they  pay  off  the  mort- 
gage m  order  to  protect  their  dower,  they  become  equitable  as- 
signees, and  may  preserve  and  enforce  the  lien  against  the  inherit- 
ance for  reimbursement  over  and  above  the  proportion  of  the  debt 
which  they  are  bound  to  contribute.-  The  rule  extends  in  like  man- 
ner to  tenants  for  years"  and  to  tenants  in  common.* 

$  800.  Priorities  Affected  by  Merger. — It  is  plain  from  the  fore- 
going discussion  that  the  doctrine  of  merger,  in  its  application  to 
encumbrances,  has  an  intimate  connection  with  the  general  subject 
of  priorities.  "Whether  a  certain  mortgage  or  other  charge. is  still 
subsisting,  and  retains  its  priority,  or  whether  it  is  in  reality  though 
not  perhaps  in  form,  extinguished,  so  as  to  let  in  subsequent  liens, 
nnist  often  be  determined  by  the  I'ules  concerning  merger.  The 
doctrine  has  therefore  a  twofold  application, — between  the  imme- 
diate parties,  the  owner  of  the  land  or  the  debtor  on  one  side,  and 
tlie  hohler  of  the  lien  on  the  other,  and  between  the  holders  of  suc- 
cessive encumbrances  and  partial  interests. 


SECTION  IX. 
COXCKRXliSCr    EQUl'J'A]iLE    I<:,STOPPEL. 

ANALYSIS. 

§   801.  X'ature  of  the  rights  created  by  e-^top]K'I. 
§  802.  Origin   of  equitable  estoppel. 

S   80,3.  How  far  fraud  is  essential  in  e(iuitable  estoppels. 
§  804.  Definition. 

§  805.  Essential  elements  constituting  the  estoppel. 
S  806.  Theory  that  a  fraudulent  intent  is  essential. 

S   807.   P>audulent  intent  necessary  in   an  e^1oppel  affecting  the  legal  titiS» 
to  land. 

'Morley  v.  Morley,  5  De  Gex,  'SI.  &  G.  GIO:   Ohnier  v.   Boyer,  89  Ala.  2Tj.   s- 
South.  6()3. 

^^  Davis  V.  Wetherell.  ^?,  Allen  0.3,  90  Am.  Dec.   177. 

^Averill  v.  Taylor.  8  X.  Y.  44. 

*  See  ante,  §  79,5,  and  cases  cited  in  note. 


387  COXCEKXIXG     KC^ITAJMJ-:    KSTOl'PEL.  §  801 

S§  808-812.  Requisites  furtlier  illustrated. 

S  808.  'Ihe  conduct   of  the  party  estopped. 

§  SO!).  Knowledge  of  the  truth   by  the  party  estopped. 

§  810.  Ignorance  of  the  truth  by  the  other  party. 

§  811.  Intention  by  the  party  who  is  estopped. 

§  8l2.  The   conduct   must  be   relieil   upon,  and   be   an   inducement   for   the 
other  party  to  act. 

§  813.  Operation  and  extent  of  the  estoppel. 

§  814.  As  applied  to  married  women. 

S  815.  As  applied  to  infants. 
5§  816-821.  luiportant  applications   in  equitj'. 

§  816.  Acquiescence. 

§  817.  Same:  as  preventing  remedies. 

§  818.  Same:  as  an  estoppel  to  rights  of  property  and  contract, 

§  819.  As  applied  to  corporations  and  stockholders. 

§  820.  Other  instances  of  acquiescence. 

S  821.  Owner  estopped  from  asserting  Iiis  legal  title  to  land. 

;$  801.  Nature  of  the  Rights  Created  by  Estoppel. — It  has  been 
said  by  some  writers  and  jnd,o:es  that  the  doctrine  of  eqnitable  es- 
toppel is  a  branch  merely  of  the  law  of  evidence.  This  is,  however, 
an  entirely  mistaken  and  by  no  means  harmless  view.  Nothing  can 
tend  to  produce  more  confusion  of  mind  in  the  correct  understand- 
inij  of  legal  rules,  and  in  their  proper  application  to  the  affairs  of 
life,  than  the  exhibition  of  them  under  wrong  divisions  of  the  law, 
and  the  consequent  representation  of  them  as  connected  with  rela- 
tions which  do  not  exist.  It  is  undoubtedly  true  that  authors  of 
Avorks  on  evidence  intended  for  professional  use  do  often  treat  of 
matters  which  form  no  legitimate  part  of  that  subject.  This  may 
be  convenient,  but  it  is  not  an  accurate  and  scientific  method,  and 
should  never  be  pursued  when  the  purpose  is  to  define  and  de- 
scribe the  nature  of  legal  doctrines  and  of  the  rights  and  cluties 
which  floAv  therefrom.  Eules  which  determine  and  regulate  pri- 
m.ary  rights  of  property  and  of  contract  constitute  a  part  of  the 
substantive  law,  and  do  not  belong  to  the  law  of  evidence,  which 
is  simply  a  branch  of  the  law  concerning  procedure.^  The  rights 
aiid  corresponding  duties  created  by  estoppels  are  primary, — rights 
of  property  or  of  contract.  This  is  certainly  true  of  common-law 
estoppels,  and  it  is  no  less  true  of  equitable  estoppels;  the  effect  of 
the  latter  is  substantially  the  same  as  that  of  the  former,  the  dif- 
ference being  in  the  facts  from  which  the  estoppel  arises,  and  not 
in  the  consequences  produced  by  it.  An  estoppel  determines  the, 
right  Avhieh  a  person  may  enforce  by  action  or  rely  on  in  defense, 
and  not^fhe'^'efe  mode  and  moatis  by  Avhich  those  rights  may  be 

'This  truth  is  demly  and  most  conilusivelv  shown  by  Sir  James  Fitzjames 
St('])hen,  in  Ihe  introduction  to  his  admirable  work  entitled  a  Digest  of  the  Law 
of  Kvidence    (pp.  xiii.,  xiv.). 


§  802  EQUITY     JURISPRUDENCE.  388 

proved.^  In  fact,  the  principle  which  underlies  the  doctrine  of  the 
implied  authority  of  an  agent  in  most  of  its  applications,  and  which 
pi-events  the  principal  from  denj'ing  the  authority  which,  by  his 
conduct,  he  has  held  the  agent  out  to  the  world  as  possessing,  is 
i;lentically  the  same  principle  which  constitutes  the  essence  of  all 
equitable  estoppels;  and  if  the  rules  concerning  these  estoppels  are 
merely  a  part  of  the  law  of  evidence,  we  should,  for  the  same  reason 
and  to  the  same  extent,  regard  the  rules  concerning  the  nature  and 
effects  of  implied  agency  as  also  belonging  to  evidence.  Many 
similar  illustrations  might  be  selected  from  various  departments  of 
the  law.  Equitable  estoppel  is,  therefore,  a  particular  doctrine, 
based  upon  justice  and  conscience,  which  is  the  origin,  wherever  it 
may  be  invoked,  of  ])rimary  rights  of  property  or  of  contract. 

$  802.  Origin  of  Equitable  Estoppel. — Estoppel  was  recognized 
by  the  common  law  at  a  very  early  day.  The  original  legal  rules 
concerning  it  were  arbitrary  and  sometimes  unjust,  and  are  still,  to 
a  certain  extent,  technical  and  strict.  Lord  Coke  gave  a  very  harsh 
definition  of  estoppel  as  it  existed  in  his  time:  "An  estoppel  is 
where  a  man  is  concluded  by  his  own  act  or  acceptance  to  say  the 
truth."  He  added:  "Touching  estoppels,  which  are  a  curious  and 
excellent  sort  of  learning,  it  is  to  be  observed  that  there  are  three 
kinds  of  estoppels,  viz.,  by  matter  of  record,  by  matter  in  writing, 
and  by  matter  in  pais."  His  discussion  shows  clearly  that  "by 
inatter  in  writing"  he  meant  only  a  deed, — a  writing  under  seal. 
The  instances  w^hich  he  gave  of  estoppels  in  pais  were:     "By  mat- 

-■  One  or  two  illustrations  will  clearly  show  the  correctness  of  this  statement. 
A  tenant  is  estopped  from  denying  his  landord's  title.  This  is  certainly  a  right 
of  property,  enabling  the  landlord  to  recover  rent,  or  perhaps  the  land  itself, 
although  he  has  in  Jact  no  title,  and  no  other  right  of  property  than  thati 
created  by  the  estoppel.  An  acceptor  is  estopped  from  denying  the  genuineness 
of  the  prior  signatures  on  the  bill.  This  is  a  right  of  contract,  whereby  the 
holder  may  be  enabled  to  recover  the  amount  of  the  bill  from  the  acceptor,  and 
it  may  possibly  be  the  only  ground  upon  which  a  recovery  can  be  rested.  One 
other  illusti'ation  of  an  estoppel,  regarded  as  more  distinctively  equitable,  and 
having  more  the  appearance  of  being  only  a  rule  of  evidence:  A  is  owner  of 
land.  He  stands  bj^  and  knowingly  permits  B  to  expend  money  and  make  im- 
provements on  the  land,  under  the  innocent  but  mistaken  assumption  of  a  right 
to  do  so,  and  interposes  no  objection,  asserts  no  claim  of  title.  A  is  then  estop- 
ped from  setting  up  his  title  as  against  B's  right  to  the  improvement.  This  is 
clearly  a  right  of  property  in  B.  In  strictness,  A  has  the  whole  title,  and  B 
has  no  right  of  property  by  the  ordinary  rules  of  law  applicable  in  the  absence 
of  the  estoppel.  The  estoppel  creates  a  right  in  B,  which  is  as  much  a  right  of 
property  as  though  it  had  resulted  from  a  conveyance,  or  from  a  statutory  ad- 
verse possession;  it  is  his  only  right  of  property;  it  may  not  lie  absolute,  but  is 
no  less  a  right  of  property.  One  mode  of  acquiring  title  is  by  the  common  law 
estoppel  resulting  from  a  covenant  of  warranty.  It  is  a  pure  fiction  to  say 
that  the  covenantee  does  not  acquire  a  title  by  the  estopped. 


389  COXCKK-NlNCi     EQUITABLE    KSTOITKL.  §803 

ter  in  pah,  as  by  livery,  by  entry,  by  aeceptanue  of  rent,  by  parti- 
tion, and  by  acceptance  of  an  estate."  These  instances  of  legal 
estoppels  in  pais  are  not  included  within  the  "equitable  estoppels" 
which  form  the  subject-matter  of  the  present  section.  Although 
the  facts  from  which  equitable  estoppels  arise  are  all  matters  in  pais 
as  distinguished  from  records  and  deeds,  yet  the  whole  doctrine 
is  an  expansion  of  and  addition  to  the  original  legal  estoppels  in 
pais,  and  embraces  rules  unknown  to  the  law  when  Lord  Coke 
wrote.  Equitable  estoppel  in  the  modern  sense  arises  from  the 
conduct  of  a  party,  using  that  word  in  its  broadest  meaning  as  in- 
cluding his  spoken  or  written  words,  his  positive  acts,  and  his 
siJence  or  negative  omission  to  do  anything.^  Its  foundation  is  jus- 
tice and  good  conscience.  Its  object  is  to  prevent  the  unconscien- 
nous  and  inequitable  assertion  or  enforcement  of  claims  or  rights 
which  might  have  existed  or  been  enforceable  by  other  rules  of  the 
iavv',  unless  prevented  by  the  estoppel ;  and  its  practical  effect  is, 
from  motives  of  equity  and  fair  dealing,  to  create  and  vest  opposing 
rights  in  the  party  who  obtains  the  benefit  of  the  estoppel  -  The 
doctrine  of  equitable  estoppel  is  pre-eminent!}'  the  creature  of 
equity.  It  has,  however,  been  incorporated  into  the  law,  and  is 
constantly  employed  by  courts  of  law  at  the  present  day  in  the 
decision  of  legal  controversies.  Preserving  its  original  character, 
and  depending  upon  equitable  principles,  it  is  administered  in  the 
same  manner,  and  in  conformity  with  the  same  rules,  by  the  courts 
both  of  law  and  of  equity,  so  that  the  decisions  of  either  class  of 
tribunals  maj-  be  quoted  as  authorities  in  the  subsequent  discus- 
sion. The  particular  applications  of  the  doctrine  are  so  various 
and  so  numerous,  that  no  attempt  will  be  made  to  discuss  them 
with  any  fullness. 

§  803.  How  Far  Fraud  is  Essential  in  Equitable  Estoppels. — 
There  is  a  theory  which  makes  the  essence  of  equitable  estoppel  to 
c(msist  of  fraud.  In  accordance  with  this  view,  the  language  used 
by  some  courts  in  defining  and  describing  the  general  doctrine  has 
l)(-en  so  sweeping  and  positive  that,  taken  literally,  it  does  not  ad- 
mit the  possibility  of  such  an  estoppel  unless  the  party  has  been 
guilty  of  actual  intentional  fraud  in  law;  and  thus  the  whole  doc- 
trine is  represented  as  virtually  a  mere  instance  of  legal  ^raud. 
This  theory  is  not  sustained  by  principle,  and  it  cannot  be  made 
universal.  There  are  well-settled  cases  of  equitable  estoppel,  familiar 
to  courts  of  equity,  which  do  not  rest  upon  fraud,  and  instances 
are  admitted,  even  l)y  the  courts  M-hidi  ninintaiii  this  theory,  which 

>  Martin  v.  Maine  Cent.  K.  Co..  0.3  Me.  100,  21  Atl.  740. 

^'Horn  V.  Cole,  51  X.  H.  287,  289,  12  Am.  Rep.  Ill,  H.  &  B.  101  (a  very 
important  opinion)  ;  Stevens  v.  Dennett,  51  N.  H.  324,  333,  per  Foster,  J. 


§  803  EQUITY     JURISPRUDEXCE.  390 

cannot  be  said  to  involve  any  element  of  fraud  unless  by  a  complete 
perversion  and  misuse  of  language.  It  is  undoubtedly  in  aceord- 
iuiee  with  the  methods  long  pursued  by  courts  of  equity  to  ap[)ly 
[he  term  "fraudulent"  to  the  party  estopped,  in  the  following  man- 
ner: It  is  in  strict  agreement  with  equitable  notions  to  say  of  such 
party  that  his  repudiation  of  his  own  prior  conduct  which  had 
amounted  to  an  estoppel,  and  his  assertion  of  claims  notwithstand- 
ing his  former  acts  or  words,  would  be  fraudulent, — would  be  a 
fraud  upon  the  rights  of  the  person  benefited  by  the  estoppel.  It  is 
accurate,  therefore,  to  describe  equitable  estoppel,  in  general  terms, 
as  such  conduct  by  a  party  that  it  would  be  fraudulent,  or  a  fraud 
upon  the  rights  of  another,  for  him  afterwards  to  repudiate  and 
to  set  up  claims  inconsistent  with  it.  This  use  of  the  term  has  long 
been  familiar  to  courts  of  equity,  which  have  always  treated  the 
word  "fraud"  in  a  very  elastic  manner.  The  meaning  here  given 
to  fraud  or  fraudulent  is  virtually  synonymous  with  "unconscien- 
tious" or  "inequitable."  In  exactly  the  same  manner,  and  with 
exactly  the  same  signification  given  to  the  word,  the  doctrine  of 
specific  enforcement  of  verbal  contracts  for  the  sale  of  land  when 
part  performed  by  the  plaintiff  has  been  explained  by  saying  that 
it  would  be  fraudulent  for  the  defendant  to  contest  his  liability 
by  setting  up  the  statute  of  frauds  after  he  had  permitted  the  plain- 
tiff, without  objection,  to  go  on  and  part  perform  the  verbal  agree- 
ment. In  this  explanation  courts  of  equity  do  not  mean  that  the 
defendant's  conduct  in  denying  the  validity  of  the  agreement  is 
actual  fraud, — a  willful  deception, — but  simply  that  it  is  uncon- 
scientious; much  less  do  they  assert  that  there  was  actual  fraud — ■ 
willful  deception — in  the  act  of  entering  into  the  verbal  contract. 
In  exactl}^  the  same  manner  it  is  in  strict  accordance  with  equitable 
conceptions  and  equitable  terminology  to  describe  as  fraud  or 
fraudulent  the  act  of  repudiating  conduct  wiiich  had  constituted 
an  estoppel,  and  of  asserting  claims  inconsistent  therewith;  it  is 
entirely  another  thing  to  say  that  the  conduct  itself — the  acts,  words, 
or  silence  of  the  party — constituting  the  estoppel  is  an  actual  fraud, 
done  with  the  actual  intention  of  deceiving.  .  .  .  When  all  the 
varieties  of  equitable  estoppel  are  compared,  it  will  be  found.  I 
think,  that  the  doctrine  rests  upon  the  following  general  principle: 
AVhen  one  of  two  innocent  persons — that  is,  persons  each  guiltless 
of  an  intentional,  moral  wrong — must  suffer  a  loss,  it  must  be  borne 
by  that  one  of  them  who  by  his  conduct — acts  or  omissions — has 
rendered  the  injury  possible.  This  is  confessedly  the  foundation 
of  the  rules  concerning  the  implied  authority  of  agents,  which  are 
declared  by  judges  of  the  highest  ability  to  be  applications  of  the 


391  CONCERNING    EQUITABLE    ESTOPPEL.  §  805 

doctrine  of  equitable  estoppel.'  This  most  righteous  principle  is 
sufficient,  and  alone  sufficient,  to  explain  all  instances  of  such  es- 
toppel, and  although  fraud  may  be,  and  often  is,  an  ingredient  in 
the  conduct  of  the  party  estopped,  it  is  not  an  essential  element, 
if  the  word  is  used  in  its  true  legal  meaning. 

^  804.  Definition. — From  the  foregoing  general  description  it 
will  appear,  I  think,  that  the  following  definition  is  accurate,  and 
covers  all  phases  and  applications  of  the  doctrine:  Equitable  es- 
toppel is  the  effect  of  the  voluntary  conduct  of  a  party  whereby 
he  is  absolutely  precluded,  both  at  laAv  and  in  equity,  from  assert- 
ing rights  which  might  perhaps  have  otherwise  existed,  either  of 
property,  of  contract,  or  of  remed3%  as  against  another  person, 
who  has  in  good  faith  relied  upon  such  conduct,  and  has  been  led 
thereby  to  change  his  position  for  the  worse,  and  who  on  his  part 
acquires  some  corresponding  right,  either  of  property,  of  contract,, 
or  of  remedy.^ 

§  805.  Essential  Elements  Constituting  the  Estoppel.— In  con- 
formity with  the  principle  already  stated  which  lies  at  the  basis  of 
the  doctrine,  and  npon  the  authority  of  decisions  which  have  re- 
cognized and  adopted  that  principle,  the  following  are  the  e-ssential 
elements  which  must  enter  into  and  form  a  part  of  an  ecpiitable  es- 
toppel in  all  of  its  phases  and  applications.  One  caution,  however, 
is  necessary,  and  very  important.  It  w^ould  be  unsafe  and  misleading 
to  rely  on  these  general  requisites  as  applicable  to  every  case,  without 
examining  the  instances  in  which  they  have  been  modified  or  limit- 
ed. 1.  There  must  be  conduct — ^acts,  language,  or  silence--amount- 
in.g  to  a  representation  or  a  concealment  of  material  facts.  2.  These 
facts  mu.stbejvuown  to  the  party  estopped  at  thetime  of  I^s  said 
conduct,  or  at  least  the  circumstances  must  be  such  that  knowledge 
of  them  is  necessanTy^'imputeTI  toTiim.  3.  The  truth  concerning 
these  facts  must  be  unknown  to  the  other  party" claiming  th(i  h^"eTrt 
oftHe^ estoppel,  at  the  time  wlicn  such  condncl  was  done,  and  at  the 
time  when  it  was  acted  upon  hy  h  im.      4.  The  conduct  mu.st  be  done  with 


the  intention,  or  at  least  Avitli  tlie  oxpectation.  that  it  will  be  acted 
npon  l)y  the  other  party,  or  under  such  circumstances  that  it  is 
both  natural  and  probable  that  it  will  be  so  acted  upon.  There  are 
several  familiar  species  in  which  it  is  simply  imposmhle  to  ascribe 
any  intention  or  even  expectation  to  the  party  estopped  that  his  con- 
duct  wnll   be   acted   upon   by  the   one   wlio    afterAvards    claims   the 

'  Fiirmers'  &  ]\Iechanics'  Bank  v.  Butchers'  &  Drovers'  Bank,  16  N.  Y.  125, 
C9  Am.  Dec.  678;  Griswold  v.  Haven.  25  N.  Y.  595,  82  Am.  Dec.  380. 

'Galbraith  v.  Lnnsford,  87  Tenn.  SO.  n  S.  W.  .365,  1  L.  R.  A.  522,  H.  &  B. 
117.  See,  also,  the  definition  in  Sfephon's  Dip^est  of  the  La\v  of  Evidence, 
p.    124. 


§  806  EQUITY     JURISPRUDENCE.  392 

benefit  of  the  estoppel.  5.  The  conduct  must  be  relied  upon  bj^  the 
other  party,  and,  thus  relying^  he  must  be  led  to  act  upon  it.  6. 
He  must  in  fact  act  upon  it  in  such  a  manner  as  to  change  his  posi- 
tion for  the  worse;  in  other  words,  he  must  so  act  that  he  would 
suffer  a  loss  if  he  Avere  compelled  to  surrender  or  forego  or  alter 
what  he  has  done  by  reason  of  the  first  party  being  permitted  to 
repudiate  his  conduct  and  to  assert  rights  inconsistent  with  it.^ 
It  will  be  seen  that  fraud  is  not  given  as  an  essential  requisite  in 
the  foregoing  statement.  It  is  not  absolutely  necessary  that  the 
conduct  mentioned  in  the  first  subdivision  should  be  done  with  a 
fraudulent  purpose  or  intent,  or  with  an  actual  and  frandulent  in- 
tention of  deceiving  the  other  party;  nor  is  this  meaning 
implied  by  any  of  the  language  which  I  have  used.  The  adoption 
of  such  an  element  as  ahvays  essential  would  at  once  strike  out 
some  of  the  most  familiar  and  best  established  instances  of  equit- 
able estoppel.  Undoubtedly  a  fraudulent  design  to  mislead  is  often 
present  as  an  ingredient  of  the  conduct  working  an  estoppel;  but 
this  only  renders  the  result  more  clearly  just,  and,  if  I  may  use 
the  expression,  more  conclusive.  There  is,  however,  a  class  of  cases, 
of  which  an  example  is  given  in  the  foot-note,  where  fraudulent 
conduct  is  essential, — cases  in  which  an  owner  of  land  is  precluded 
from  asserting  his  legal  title  by  reason  of  intentionally  false  rep- 
resentations or  concealments,  by  which  another  has  been  induced 
to  deal  with  the  land.  These  cases  are  at  the  present  day  sometimes 
treated  as  examples  of  equitable  estoppel.  The  principle,  however, 
upon  which  they  depend  was  well  settled  by  courts  of  equity  long 
liefore  the  doctrine  of  equitable  estoppel  in  its  modern  form  was 
first  announced,  and  goes  in  its  remedial  operation  far  beyond  that 
doctrine,  as  will  more  fully  appear  in  subsequent  paragraphs.  I 
would  again  remark  that  although  fraud  is  not  an  essential  element 
of  the  original  conduct  working  the  estoppel,  it  may  with  perfect 
propriety  be  said  that  it  Avonid  be  fraudulent  for  the  party  to 
repudiate  his  conduct,  and  to  assert  a  right  or  claim  in  contraven- 
tion thereof.  Using  the  term  in  the  sense  frequently  given  to  it 
by  courts  of  equity,  and  as  explained  in  a  preceding  paragraph, 
this  statement  is  not  onlj^  proper,  but  furnishes  an  accurate  crite- 
rion for  determining  the  existence  of  an  equitable  estoppel. 

§  806.  Theory  that  a  Fraudulent  Intent  is  Essential.— There  is, 
as  has  already  been  mentioned,  a  theory  approved  and  adopted  by 
the  courts  of  some  states,  which  makes  the  very  essence  of  every 

'Pickard  v.  Sears,  G  Ad.  &  E.  469,  474;  Continental  Bank' v.  Bank  of  the 
Commonwealth,  50  N.  Y.  575,  581,  582;  Rice  v.  Bunce,  49  Mo.  231,  234,  8 
Am.  Kep  129;  Chase's  Appeal,  57  Conn.  236,  18  Atl.  96;  Galbraith  v.  Luns- 
ford,  87  Tenn.  89,  9  S.  W.  30.5,  1  L.  R.  A.  522,  H.  &  B.  117   (fraud  not  essential). 


393  CONCEUXING    EQUITABLE    ESTOPPEL.  ^  SUT 

equitable  estoppel  or  estoppel  by  conduct  to  consist  of  fraud,  and 
affirms  that  au  actual  fraudulent  intention  to  deceive  or  mislead 
ia  a  necessary  requisite  in  the  conduct  of  the  party, — whether  acts, 
words,  or  silence, — in  order  that  it  may  create  an  equitable  estop- 
pel. I  cannot  better  state  this  theory  than  in  the  language  of  an 
eminent  and  able  judge,  which  has  frequently  been  adopted  as  be- 
ing an  accurate  exposition  of  the  general  doctrine.^  In  order  to 
estop  a  party  by  his  conduct,  admissions,  or  declarations,  the  fol- 
lowing are  essential  requisities :  It  must  appear, — 1.  That  the  party 
makingr  his  admission  by  his  declaration  or  conduct  was  apprised 
of  the  true  state  of  his  own  title;  2.  That  he  made  the  admission 
uith  the  express  intoition  to  deceive,  or  with  such  careless  or  culpable 
negligence  as  to  amount  to  constructire  fraud;  3.  That  the  other 
party  was  not  onh^  destitute  of  all  knowledge  of  the  true  state  of 
the  title,  but  of  all  means  of  acquiring  such  knowledge;  4.  That 
he  relied  directly  upon  such  admission,  and  will  be  injured  by  al- 
lowing its  truth  to  be  disproved. - 

§  807.  Fraudulent  Intent  Necessary  in  an  Estojipel  Affecting  the 
Legal  Title  to  Land. — The  particular  case  referred  to  in  the  fore- 
going foot-note  i'e(iuires  a  fuller  explanation.  It  is  a  purely  equit- 
able doctrine  settled  long  before  the  modern  rules  of  equitable  es- 
toppel by  conduct.  It  is  confined  to  estates  in  land.  The  general 
rule  is,  that  if  a  person  interested  in  an  estate  knowingly  misleads 
another  into  dealing  with  the  estate  as  if  he  were  not  interested, 
ho  will  be  postponed  to  the  party  misled,  and  compelled  to  make 
his  representation  specifically  good.  It  applies  to  one  v\iio  denies 
his  own  title  or  encumbrance  when  inquired  of  by  another  who  is 
about  to  purchase  the  land  or  to  loan  money  upon  its  security:  to 
one  who  knowingly  suffers  another  to  deal  with  the  land  as  though 
it  were  his  own;  to  one  Avho  knowingly  suffers  another  to  expend 
money  in  improvements  without  giving  notice  of  his  own  claim, 
and  the  like.  This  equity,  being  merely  an  instance  of  fraud,  re- 
quires intentional  deceit,  or  at  least  that  gross  negligence  which  is 
evidence  of  an  intent  to  deceive.  In  the  language  of  a  most  recent 
decision,  to  preclude  the  owner  of  land  from  asserting  his  legal 
title  or  interest  under  such  circumstance,  "there  must  be  shown 
either  actual  fraud,  or  fault  or  negligence  equivalent  to  fraud,  on 
his  part  in  concealing  his  title;  or  that  he  was  silent  when  the  cir- 
cumstances would  impel  an  honest  man  to  speak;  or  such  actual 
intervention  on  his  part,  as  in  Storrs  v.  Barker,  6  Johns.  Ch.  166. — 

'Boggs  V.  Mercod  Min.  Co.,  14  Cal.  270.  307,  SOS,  per  Field.  -T. :  Braiil  v. 
Virginia  Coal  Co.,  93  U.  S.  326,  33.1,  per  Field,  ,1.  See  Oalhraith  v.  Limsford.  87 
Tenn.  89,  9  S.  W.  30,5,  1  L.  R.  A.  r>22.  H.  &  B.  117. 

'Pocohontas  Light  &  Water  Co.  v.   Bro\vning,  53  W.  Va.  430,  44  S.  E.  267. 


§  808  EQUITY     JURISPEUDEXCE.  394 

SO  as  to  render  it  just  that,  as  between  him  and  the  party  acting; 
upon  his  suggestion,  he  should  bear  the  loss."  What  is  the  reason 
of  this  rule  ?  It  is  accurately  explained  in  the  same  decision.  While 
the  owner  of  land  may  by  his  acts  in  pais  preclude  himself  from 
asserting  his  legal  title,  "it  is  obvious  that  the  doctrine  should  be 
carefully  and  sparingly  applied,  and  only  on  the  disclosure  of  clear 
and  satisfactory  grounds  of  justice  and  equity.  It  is  opposed  to  the 
letter  of  the  statute  of  frauds,  and  it  would  greatly  tend  to  the  in- 
security of  titles  if  they  were  allowed  to  be  affected  by  parol  evi- 
dence of  light  or  doubtful  character."  The  most  important  "ground 
of  justice  and  equity"  admitted  by  courts  of  equity  to  uplift  and 
displace  the  statute  of  frauds  concerning  legal  titles  to  land,  by 
fastening  a  liability  upon  the  wrong-doer,  is  fraud.  There  are 
many  instances  in  which  equity  thus  compels  the  owner  of  land  to 
forego  the  benefits  of  his  legal  title  and  to  admit  the  equitable 
claims  of  another,  in  direct  contravention  of  the  literal  require- 
ments of  the  statute,  but  they  all  depend  upon  the  same  principle. 
The  rule  under  consideration  is  strictly  analogous  to  another 
familiar  rule  that  a  legal  owner  of  land  cannot  be  turned  into  a. 
ti'iistee  ex  delicto  by  any  mere  words  or.  conduct.  A  constructive 
trust  ex  delicto  can  never  be  impressed  upon  land  as  against  the 
legal  title  by  any  verbal  stipulation,  however  definite,  nor  by  any 
mere  conduct;  such  trust  can  only  arise  where  the  verbal  stipula- 
tion and  conduct  together  amount  to  fraud  in  the  contemplation  of 
efjuity.  Both  the  rule  under  consideration  and  the  rule  concerning 
trusts  rest  upon  the  same  reasons.  The  doctrine  had  its  origin,  as 
has  been  said,  prior  to  and  independently  of  the  modern  doctrine 
of  equitable  estoppel  by  conduct,  and  was  confined  in  its  operation 
to  courts  of  equity.  Even  at  the  present  day,  this  particular  in- 
stance of  the  equitable  estoppel  by  which  the  owner  of  land  is  pre- 
cluded from  asserting  his  legal  title  is  distinctively  equitable;  it 
is  not  admitted  and  enforced  at  law,  except  in  states  Avhere  the 
principles  of  equity  are  administered  through  the  means  of  legal 
actions  and  remedies,  and  in  those  where  legal  and  equitable  rights; 
and  reliefs  are  combined  in  the  administration  of  justice  under  the 
reformed  procedure.^ 

§  808.  Requisites  Further  Illustrated — The  Conduct. — ]\ry  limits 
of  space  do  not  permit  a  detailed  discussion  of  these  general  requi- 
sites. I  can  only  state  them  in  the  briefest  manner,  and  must  refer 
to  the  cases  cited  in  the  foot-note,  and  to  treatises  upon  estoppel, 
for  an  ampler  treatment.    In  fact,  the  more  specific  rules,  the  vary- 

^Storrs  V.  Barkpr,  fi  Johns.  Ch.  166,  10  Am.  Dec.  316:  Parkey  v.  Ramsey, 
(Tenn.)  76  S.  W.  812.  That  this  species  of  estoppel  belongs  to  the  jurisdiction 
of  eqiiity,  and  is  not  available  at  law,  see  Hayes  v.  Livingston,  34  Mich.  384, 
22   Am.   Kep.   533. 


305  COXCKKXIXG    EQUITABLE    ESTOPPEL.  §  8W> 

ing'  phases  of  opinion,  and  the  partial  eontiict  of  decision  have  arisen 
in  ac-tions  at  law  rather  than  in  eqnity.  The  treatment  of  the 
subject  by  courts  of  equity  has  generally  been  simple,  uniform, 
and  consistent.  The  conduct  creating-  the  estoppel  must  be  soujc- 
thing  which  amounts  either  to  a  representation  or  a  concealment 
of  the  existence  of  facts;  and  these  facts  must  be  material  to  the 
rights  or  interests  of  the  party  afit'ected  by  the  representation  or 
concealment,  and  who  claims  the  benefit  of  the  estoppel.  The  con- 
duct may  consist  of  external  acts,  or  language  written  or  spoken, 
or  of  silence.^  The  facts  represented  or  concealed  must,  in  general, 
be  either  existing  or  past,  or  at  least  represented  to  be  so.  A  state- 
ment concerning  future  facts  would  either  be  a  mere  expression 
of  opinion,  or  would  constitute  a  contract  and  be  governed  by 
rules  applicable  to  contracts.- 

§  809.  Same.  Knowledge  of  the  Truth  by  the  Party  Estopped.— 
The  truth  concerning  these  material  facts  represented  or  concealed 
nuist  be  known  to  the  party  at  the  time  when  his  conduct,  which 
amounts  to  a  representation  or  concealment,  takes  place ;  or  else 
the  circumstances  must  he  such  that  a  knowledge  of  the  truth  is  neces- 
sarily imputed  to  liim}  The  rule  has  sometimes  been  stated  as  though 
it  were  universal,  that  an  actual  knowledge  of  the  truth  is  always 
indispensable.  It  is,  however,  subject  to  so  many  restrictions  and 
limitations  as  to  lose  its  character  of  universality.  It  applies  in  its 
full  force  only  in  cases  where  the  conduct  creating  the  estopi)e! 
consists  of  silence  or  acquiescence.  It  does  not  apply  where  the 
party,  although  ignorant  or  mistaken  as  to  the  real  facts,  was  in 
such  a  position  that  he  ought  to  have  known  them,  so  that  knowledge 
will  be  imputed  to  him.  In  such  case,  ignorance  or  mistake  will  not 
prevent  an  estoppel.-  Nor  does  the  rule  apply  to  a  party  who  has 
not  simply  acquiesced,  but  who  has  activelj^  interfered  by  acts  or 
words,  and  whose  affirmative  conduct  has  thus  misled  another.^ 
Finally,  the  rule  does  not  apply,  even  in  cases  of  mere  acquiescence, 
when  the  ignorance  of  the  real  facts  was  occasioned  by  culpable 
negligence.* 

'By  acts  or  words:  Horn  v.  Cole.  .>!  X.  H.  2S7,  12  Am.  Rep.  Ill,  H.  &  B. 
101:  Hoene  v.  Pollak,  118  Ala.  017.  24  South.  .349,  72  Am.  St.  Rep.  189.  By 
silence:      In    re   Lart    (1896),   2    Cli.    789. 

••'.lorden  v.  Money,  5  H.  L.  Cas.  185;  Elliott  v.  Wliititiore.  23  Utah  342.  (i5 
Pac.  70.  90  Am.  8t.  Rep.  700. 

'Bank  of  Hindustan  v.  Alison.  L.  R.  0  Com.  P.  54,  222;  :\lcCaskill  v.  Con- 
necticut Savings  Bank,  fiO  Conn.  300,  25  Am.  St.  Rep.  323,  22  Atl.  568,  13 
L.  R.   A.   737. 

•■=  Weinstein  v.  National  Bank,  69  Tex.  38,  6  S.  W".  171.  5  Am.  St.  Rep.  23; 
Chase's   Appeal,   57   Conn.  236.    18   Atl.   96. 

^Bcaupland   v.  :\TcKean.  28   Pa.   St.   124,   131,   70   Am.   Dec.    Ii5. 

*  Smith  V.  Xewton,  38   ill.  230. 


§811  E(2L1TY     JLia,srULDE.\CK.  396 

§  810,     Same.     Ignorance  of  the  Truth  by  the  Other  Party. — The 

truth  eoneeruiiiy  tlicse  material  facts  must  be  unknown  to  the  other 
party  claiming  the  benefit  of  the  estoppel,  not  only  at  the  time 
of  the  conduct  which  amounts  to  a  representation  or  concealment, 
but  also  at  the  time  when  that  conduct  is  acted  upon  by  him.  If, 
at  the  time  when  he  acted,  such  party  had  knowledge  of  the  truth, 
or  had  the  means  by  which  with  reasonable  diligence  he  could  ac- 
quire the  knowledge  so  that  it  would  be  negligence  on  his  part  to 
remain  ignorant  by  not  using  those  means,  he  cannot  claim  to  have 
been  misled  by  relying  upon  the  representation  or  concealment.^ 
If,  therefore,  at  the  time  of  the  representation  the  party  to  whom 
it  was  made  was  ignorant  of  the  real  facts,  but  before  he  acted 
upon  it  the  statement  was  contradicted  by  its  author,  or  he  became 
informed  of  the  truth,  he  could  not  claim  an  estoppel."  It  has 
been  said  that,  in  cases  of  alleged  estop])el  by  conduct  affecting 
the  title  to  land,  the  record  of  the  real  title  would  furnish  a  means 
by  which  the  other  party  might  ascertain  the  truth,  so  that  he 
could  not  claim  to  be  misled,  and  could  not  insist  upon  an  estoppel.^ 
This  conclusion,  if  correct  at  all,  is  correct  only  within  very  narrow 
limits,  and  must  be  applied  with  the  greatest  caution.  It  must  be 
strictly  confined  to  cases  where  the  conduct  creating  the  alleged 
estoppel  is  mere  silence.  If  the  real  owner  resorts  to  any  affirma- 
tive acts  or  words,  or  makes  any  representation,  it  would  be  in  the 
highest  degree  inequitable  to  permit  him  to  say  that  the  other 
party,  who  had  relied  upon  his  conduct  and  had  been  misled 
thereby,  might  have  ascertained  the  falsity  of  his  representations. "^ 
§  811.  Same.  Intention  of  the  Party  Who  is  Estopped. — It  has 
frequently  been  said,  in  most  general  terms,  that  the  conduct 
amounting  to  a  representation,  in  order  to  constitute  an  estoppel, 
must  be  done  with  the  intention,  by  the  one  who  is  to  be  estopped, 
that  it  shall  be  acted  upon  by  the  very  person  who  claims  the  benefit 
of  the  estoppel,  or,  as  is  sometimes  said,  that  it  shall  be  acted  upon 
by  another  person.  In  short,  there  must  always  be  the  intention 
that  the  conduct  shall  be  acted  upon  either  by  some  person,  or  by 
the  very  person  who  afterwards  relies  upon  the  estoppel.^     "While 

'Rennie,v.  Youiiy.  2  Do  (W\  &  .T.  1.36;  Estis  v.  Jackson,  111  X.  C.  145, 
32   Am.    St.    Rep.    784,    Hi    S.    K.    7. 

"  l''reeman  v.   Cooke,  2    I'^.x.   Ct'tA. 
,  MViser  v.    Lnwler.    IS!)   I'.    S.   200.   2?.   Sup.    Ct.    024.      See   Sniunor   v.    Seaton, 
47  N.  .1.  Eq.   10.3.  in  Atl.  SS4. 

■*  Claphani  v.  Shillito.  7  P>eav.  140.  140.  I.IO.  per  Lord  Lanirdale:  Oraliam  v. 
Thompson.  .">.")  Ark.  2!)0.   18  S.  W.   5S,  29  Am.   St.  Rep.   40. 

•■De  Berry  v.  Wheeler,  128  Mo.  84,  49  Am.  St.  Rep.  .'■).3S.  30  S.  W.  338; 
Stevens  v.  Ludliim.  40  Minn.  160,  24  Am.  St.  Rep.  210,  48  N.  W.  771,  13 
L.  R.  A.  270. 


397  CO.NCKUMNG    KQLITABLK    ESTOPPEL.  §  Sll 

such  intention  must  sometimes  exist,  and  while  the  proposition 
is  theretoie  line  in  certain  eases,  it  would  he  very  misk'ading  as 
a  universal  rule.  In  many  familiar  species  of  estoppels  no  intention 
can  possibly  exist.  The  requisite,  as  applicable  to  them,  is  Avell  ex- 
pressed by  am  eminent  judge  in  a  recent  decision:  It  is  not  "neces- 
sary, in  equity,  that  the  intention  should  be  to  deceive  any  particu- 
lar iiulividual  or  individuals.  If  the  representations  are  such,  and 
made  in  such  circumstances,  that  all  persons  interested  in  the  sub- 
ject have  the  right  to  rely  on  them  as  true,  their  truth  cannot  be 
denied  by  the  party  that  has  made  them,  against  any  one  who  has 
trusted  to  them  and  acted  on  them.  .  .  .  Where  a  man  makes  a 
statement  in  a  manner  and  under  circumstances  such  as  he  must 
understand  those  who  heard  the  statement  would  believe  to  be 
true,  and  if  they  had  an  interest  in  the  subj^^ct-matter  would  act 
on  as  true;  and  one,  using  his  own  means  of  knowledge  with  due 
diligence,  acts  on  the  statement  as  true,  the  party  who  makes  the 
statement  cannot  show  that  his  representation  was  false,  to  the 
injury  of  the  party  who  believed  it  to  be  true,  and  acted  on  it 
as  such;  that  he  will  be  liable  for  the  natural  consecjuences  of  his 
representation,  and  cannot  be  heard  to  say  that  the  party  actually 
injured  was  not  the  one  he  meant  should  act."-  This  mode  of  stating 
the  doctrine  niuij  in  equity  apply  to  every  kind  of  estoppel,  even 
to  those  by  which  an  owner  of  land  is  precluded  from  asserting  his 
legal  title.  There  is,  however,  a  large  class  in  which  not  only  an 
intention  directed  towards  a  particular  individual  or  towards  indi- 
viduals in  general  is  absent,  but  a  contrary  intention  that  the  party's 
representation  is  not  to  be  acted  upon  at  all  may  be  present.  The 
class  includes  all  those  instances  where  an  owner  of  things  in  action 
or  of  chattels  has.  either  designedl.y  or  negligently,  clothed  a  third 
person  with  the  apparent  title  and  power  of  disposition,  and  this 
person  transfers  them  to  a  purchaser  in  good  faith  who  relies  upon 
the  apparent  power  of  sale  they  conferred  upon  him."  The  original 
owner  is  estopped  by  his  conduct  from  asserting  his  right  of  prop- 
erty, and  the  bona  fide  purchaser  acquires  a  perfect  title  by  estoppel, 
in  direct  contravention  of  the  rules  of  law  which  would  otherwise 
control.  It  is  a  complete  misconception  to  say  that  these  instances 
do  not  depend  upon  the  doctrine  of  equitable  estoppel,  but  upon 
tluit  of  negligence.  On  the  contrary,  they  have  been  uniforndy 
rested  by  courts  upon  the  theory  of  estoppel,  and  are  among  the 
strongest  and  most  distinctive  illustrations  of  the  efficacy  of  that 
theory'.  In  fact,  it  is  only  liij  means  of  tlip  doctrine  of  estoppel  that 
the  original  owner  can  be  divested  of  his  title  in  opposition  to  the 
rules  of  the  law  concerning  the  transfer  and  ac((uisition  of  property. 

mom  V.  Cole,  51  X.  II.  287.  12  Am.  Rpp.  111.  H.  &  B.  101,  per  Peiiey, 
C.  -7.;  Cornish  v.  Abinptmi.  4  Hurl.  &  X.  549.  per  Pollock.  (\  B. 

^Morris  v.  .loyoo.  C^'^  \.  J.  Ecj.  .-)49.  a:}  All.   l.SO. 


§  Slo  EQUITY    JLItlSl'KUDEXCE.  398 

There  is  no  rule  of  law  or  of  equily  hj/  vliich  an  oivner,  through  mere 
negligence,  can  he  divested  of  his  legal  title  to  things  in  action  or  chat- 
tels.^ The  cases  where  the  loarticular  intention  mentioned  in  the 
general  rule  seems  to  be  the  most  essential  are  those  in  which  an 
owner  or  one  having  an  interest  in  property,  especially  in  land, 
deals  concerning-  it,  directly  with  a  third  person,  and  by  his  words, 
acts,  or  silence,  when  he  ought  to  speak,  makes  representations 
with  respect  to  his  title  or  interest.  In  order  to  be  estopped  from 
asserting  his  title  or  interest,  he  must  intend  that  his  representa- 
tion should  be  acted  upon  by  the  party  influenced  by  his  conduct.'"^ 

§  812.  Same.  The  Conduct  must  be  Relied  upon,  and  be  an  In- 
ducement for  the  Other  Party  to  Act. — Whatever  may  be  the  real 
intention  of  the  party  making  the  representation,  it  is  absolutely 
tissential  that  this  representation,  whether  consisting  of  words,  acts, 
or  silence,  should  be  believed  and  relied  upon  as  the  inducement 
for  action  by  the  party  who  claims  the  benefit  of  the  estoppel, 
nnd  that,  so  relying  upon  it  and  induced  by  it,  he  should  take  some 
action.  The  cases  all  agree  that  there  can  be  no  estoppel,  unless 
the  party  who  alleges  it  relied  upon  the  representation,  was  induced 
to  act  by  it,  and  thus  relying  and  induced,  did  take  some  action.^ 
Finally,  this  action  must  be  of  such  a  nature  that  it  would  have 
altered  the  legal  position  of  the  party  for  the  worse,  unless  the 
estoppel  is  enforced.  lie  must  have  placed  himself  in  such  a  situa- 
tion that  he  would  suffer  a  los.s  as  the  consequence  of  his  action, 
if  the  other  party  were  allowed  to  deny  the  truth  of  his  representa- 
tion, or  repudiate  the  effects  of  his  conduct.-  Although  this  action 
is  usually  affirmative,  yet  such  affirmative  action  is  not  indispens- 
able. It  is  enough  if  the  party  has  been  induced  to  refrain  from 
using  such  means  or  taking  such  action  as  lay  in  his  poAver,  by  which 
he  might  have  retrieved  his  position  and  saved  himself  from  loss.'' 

§  813.  Operation  and  Extent  of  the  Estoppel. — The  measure  of 
the  operation  of  an  estoppel  is  the  extent  of  the  representation  made 
by  one  party  and  acted  upon  by  the  other.  The  estoppel  is  com- 
mensurate with  the  thing  represented,  and  operates  to  put  the  party 
entitled  to  its  benefit  in  the  same  position  as  if  the  thing  rep- 
resented were  true.^    With  respect  to  the  persons  who  are  bound  by 

*  McNeil  V.  Tenth  Nat.  Bank,  40  N.  Y.  325,  7  Am.  Rep.  341,  and  see  ante,  § 
710;   Barnard  v.  Campbell,  55  N.  Y.  456,  4G2. 

*  (See  ante,   §  807,  and  cases   cited. 

^St.  Jo  Mfg.  Co.  V.  Uaggett,  84  111.  556;  Boylston  v.  Rankin,  114  Ala.  408, 
21   South.   995,   62  Am.  "St.   Rep.   111. 

-  Ketchum  v.  Duncan,  90  U.  S.  659:  Supreme  Tent,  Knights  of  :\Iaccabees, 
V.  Stensland,  206  ill.  124,  68  N.  E.  1098,  99  Am.  St.  Rep.  137. 

'^  Continental  Bank  v.  Bank  of  Connnonwealth,  50  N.  Y.  575 ;  Weinstein  v. 
National  Bank,  09  Tex.  ,",3,  G  ;;.  W.  171,  5  Am.  St.  Rep.  23. 

H4rissler  v.  PoAvers,  81  N.  Y.  57,  37  Am.  Rep.  475,  per  Andrews,  J, 


31)9  CONCERNIXfi    KCJl  ITABLK    ESTUri'EL.  §  814 

or  who  may  claim  the  beneiit  of  the  estoppel,  it  operates  between 
the  immediate  parties  and  their  privies,  whether  by  blood,  by  estate. 
or  by  contract.  A  stranger,  Avho  is  not  a  party  nor  a  privy,  can 
neither  be  bound  nor  aided.-  Since  the  Avhole  doctrine  is  a  creature 
of  equity  and  governed  by  equitable  principles,  it  necessarily  fol- 
lows that  the  party  who  claims  the  benefit  of  an  estoppel  must  not 
only  have  been  free  from  fraud  in  the  transaction,  but  must  have 
acted  with  good  faith  and  reasonable  diligence;  otherwise  no  equity 
will  arise  in  his  favor.^ 

§814.  Same.  As  Applied  to  Married  Women. — Upon  the  ques- 
tion how  far  the  doctrine  of  equitable  estoppel  by  conduct  applies 
to  married  women,  there  is  some  conflict  among  the  decisions.  The 
tendency  of  modern  authority.  hoM^ever,  is  strongly  towards  the 
enforcement  of  the  estoppel  against  married  women  as  against 
persons  sui  juris,  with  little  or  no  limitation  on  account  of  their 
disability.  This  is  plainly  so  in  states  where  the  legislation  has 
freed  their  property  from  all  interest  or  control  of  their  husbands, 
and  has  clothed  them  M'ith  partial  or  complete  capacity  to  deal 
with  it  as  though  they  were  single.^  Even  independently  of  this 
legislation  there  is  a  decided  preponderance  of  authority  sustaining 
the  estoppel  against  her,  either  when  she  is  attempting  to  enforce 
an  alleged  right  or  to  maintain  a  defense.-  There  are,  however, 
decisions  which  hold,  in  effect,  that  since  a  married  woman  cannot 
be  directh"  bound  by  her  contracts  or  conveyances,  even  when  ac- 
companied with  fraud,  so  she  cannot  be  indirectly  bound  through 
means  of  an  estoppel;  and  the  operation  of  the  estoppel  against  her 
]nust  be  confined  to  cases  where  she  is  attempting  af^rmativeiy  to 
enforce  a  right  inconsistent  with  her  previous  conduct,  upon  which 
the  other  partj  has  relied."  These  decisions  seem  to  be  in  opposi- 
tion to  the  general  current  of  authority. 

§  815.  Same.  As  Applied  to  Infants. — The  disability  of  infancy 
seems  to  have  limited  the  operation  of  the  equitable  estoppel  more 
than  that  of  coverture.  Since  an  infant  is  not  directly  bound 
by  his  ordinarj^  contracts,  unless  ratified  after  he  becomes  of  age, 
so  obligations  in  the  nature  of  contract  will  not  be  indirecth'  en- 
forced against  him  by  means  of  an  estoppel  created  by  his  conduct 

-Simpson  v.  Pearson,  31  Ind.  1,  99  Am.  Dec.  577,  per  Elliott,  C.  J.;  Hodge 
V.   Ludlum,  4.5   Minn.  290,  47  N.   \V.  805. 

=  Wilcox  V.  Howell,  44  N.  Y.  398. 

M>)[)l)in  V.  Cordinor,  41  :Minn.  165,  42  X.  \\'.  870.  10  Am.  St.  Rep.  683.  4 
L.   T[.    A.   3.33,   Sh.    130. 

=  Stafford  v.  Stafford,  1  De  Gex  &  -T.  193;  (\iniiolly  v.  Branstler,  3  Biisli 
702,  96  Am.  Dec.  278,  1  .Scott  583:  (Jalhraitli  v.  Luiisfonl.  87  Tenn.  89,  9  S.  \V. 
365,  1  L.  K.  A.  ,522,  H.  &  B.  117. 

'Lowell  V.  Daniels,  2  (iray  161.  61  Am.  Dec.  448;  Williamson  v.  JoneS;, 
43  W.   Va.  563.  64  Am.   St.   Rep.   891.  27  S.   K.  411,  38  L.   R.   A.   694. 


§  817  EQUITY    JUKISl'KUDEXCE.  400 

while  still  a  minor.  On  the  other  hand,  an  equitable  estoppel 
arising  from  his  conduct  may  be  interposed,  with  the  same  effect 
as  though  he  were  adult,  to  prevent  him  from  affirmatively  asserting 
a  right  of  property  or  of  contract  in  contravention  of  his  conduct 
upon  which  the  other  party  has  relied  and  been  induced  to  aet.^ 

§  816.  Important  Applications  in  Equity — Acquiescence. — In  ad- 
dition to  the  foregoing  discussion  of  principles,  I  shall  state  very 
briefly  some  of  the  applications  wiiich  have  most  frequently  been 
made  by  courts  of  equity.  Acquiescence  is  an  important  factor 
in  determining  equitable  rights  and  remedies,  in  obedience  to  the 
maxims,  He  who  seeks  equity  must  do  equity,  and  He  who  comes  into 
fc({uity  must  come  with  clean  hands.  Even  when  it  does  not  work  a 
true  estoppel  upon  rights  of  property  or  of  contract,  it  may  operate 
in  analogy  to  estoppel — may  produce  a  quasi  estoppel — upon  the 
rights  of  remedy.    These  two  effects  will  be  described  separately. 

§  817.  Acquiescence  as  Preventing  Rights  of  Remedy. — Acquies- 
cence in  the  wrongful  conduct  of  another  l)y  M^hich  one's  rights 
are  invaded  may  often  operate,  upon  the  principles  of  and  in  anal- 
ogy to  estoppel,  to  preclude  the  injured  party  from  obtaining  many 
distinctively  equitable  remedies  to  which  he  would  otherwise  be 
entitled.  This  form  of  (juasi  estoppel  does  not  cut  off'  the  party's 
title,  nor  his  remedy  at  law;  it  simply  bars  his  richt  to  equitable 
relief,  and  leaves  him  to  his  legal  actions  alone.  In  order  that  this 
effect  may  be  produced,  the  acquiescence  must  be  with  knowledge 
of  the  wrongful  acts  themselves,  and  of  their  injurious  consequences; 
it  must  be  voluntary,  not  the  result  of  accident,  nor  of  causes  rend- 
ering it  a  physical,  legal,  or  moial  necessity,  and  it  must  last  for 
an  unreasonable  length  of  time,  so  that  it  will  be  inequitable  even 
to  the  wrong-doer  to  enforce  the  peculiar  remedies  of  equity  against 
him,  after  he  has  been  suffered  to  go  on  unmolested,  and  his  con- 
duct apparently  acquiesced  in.  It  follows  that  what  Avill  amount 
to  a  sufficient  acquiescence  in  any  particular  case  must  largely 
depend  upon  its  own  special  circumstances.  The  equitable  remedy 
to  which  this  quasi  estoppel  by  acquiescence  most  frequently  applies 
is  that  of  injunction,  preliminary  or  final,  when  sought  by  a  proprie- 
tor to  restrain  a  defendant  from  interference  with  easements,  from 
committing  nuisances,  from  trespasses,  or  other  like  acts  in  dero- 
gation of  the  plaintiff's  proprietary  rights.^  This  effect  of  delay  is 
subject  to  the  important  limitation  that  it  is  properly  confined  to 
claims  for  purely  equitable  remedies  to  which  the  party  has  no  strict 
legal  right.     "Where  an  injunction  is  ask^d  in  support  of  a  strict 

MVieland  v.  KnhiVk.  110  111.  10.  51   .Am.  'Rpp.  OTH. 

'  See  vol.  1,  SS  418.  419.  and  cases  there  cited:  Coles  v.  Sims.  5  De  Gex.  M.  &  G. 
i:  Burden  v.  Stein.  27  Ala.  104.  02  Am.  Dec.  7.58;  Powers's  Appeal.  125  ^a. 
St.  175,  17  Atl.  254,  11  Am.  St.  Rep.  882,  1  Scott  264. 


401  COXCEltNING    EQUITABLE    ESTOITEL.  g  8l9 

legal  right,  the  party  is  entitled  to  it  if  his  legal  right  is  established ; 
mere  delay  and  acquiescence  will  not,  therefore,  defeat  the  remedy, 
unless  it  has  continued  so  long  as  to  defeat  the  right  itself.'-  The 
!-ame  rule  applies,  and  for  the  same  reasons,  to  a  party  seeking  pure- 
ly equitable  relief  against  fraud,  such  as  the  surrender  or  can- 
cellation of  securities,  the  annulling  of  a  transaction,  and  the  like. 
Upon  obtaining  knowledge  of  the  facts,  he  should  commence  the 
proceedings  for  relief  as  soon  as  reasonably  possible.  Acquiescence 
consisting  of  unnecessary  delay  after  such  knowledge  will  defeat 
the  equitable  relief.^ 

§  818.  Acquiescence  as  an  Estoppel  to  Rights  of  Property  or  of 
Contract. — Acquiescence  consisting  of  mere  silence  may  also  operate 
as  a  true  estoppel  in  equity  to  preclude  a  party  from  asserting  legal 
title  and  rights  of  property,  real  or  personal,  or  rights  of  contract. 
The  requisites  of  such  estoppel  have  been  described.  A  fraudulent 
intention  to  deceive  or  mislead  is  not  essential.  All  instances  of 
this  class,  in  equit}^,  rest  upon  the  principle:  If  one  maintain  silence 
when  in  conscience  he  ought  to  speak,  equity  will  debar  him  from 
speaking  when  in  conscience  he  ought  to  remain  silent.^  A  most 
important  application  includes  all  cases  where  an  owner  of  proper- 
ty, A,  stands  by  and  knowingly  permits  another  person,  B,  to  deal 
Avith  the  property  as  though  it  were  his,  or  as  though  he  were 
rightfully  dealing  with  it,  without  interposing  any  objection,  as  by 
expending  money  upon  it,  making  improvements,  erecting  buildings, 
and  the  like.  Of  course,  it  is  essential  that  B  should  be  acting 
in  ignorance  of  the  real  condition  of  the  title,  and  in  the  supposi- 
tion  that  he   was   rightful    in   his   owii    dealing. - 

§819.  Estoppel  as  Applied  to  Corporations  and  Stockholders. 
— This  species  of  estoppel,  as  well  as  other  kinds  which  consist  of 
affirmative  acts  or  representations,  applies  to  corporations  in  their 
dealings  with  third  persons,  and  with  their  own  stockholders.^  Thus 
n  corporation  may  be  estopped  by  statements  contained  in  a  pros- 
))ectus  or  circular,  on  behalf  of  a  stockholder  who  has  purchased 
shares  upon  the  faith  of  such  statements.-    Conversely,  stockholders 

-Fulhvood  V.  Fulhvoofl.  L.  E.  9  Ch.  Div.  176:  Rigney  v.  Tacorna  L.  &  W. 
(V,  9  Wash.  576,  38  Pae.   147.  26  L.  K.   A.  42.5. 

'Spp  post,  §§897,  917,  96.5:  Van  Bpck  v.  Milbrath,  118  Wis.  42,  94  N.  W. 
6.57:  Calhoun  v.  Millard,  121  \.  Y.  60.  24  N.  E.  27.  S  L.  R.  A.  248,  1  Scott 
388;  Dennis  y.  .Tonps.  44  X.  T.  Eq.  51.3.  14  All.  913.  6  Am.  St.  Rep.  899,  3 
Kppner    728. 

'^Tich.,  etc.,  Co.  v.  rnroell.  38  "Mich.  47.5.  480.  per  Conley.  .T. 

-Crook  V.  Corporation  of  Soaford,  L.  R.  6  Cli.  .551.  L.  R.  19  Eq.  678:  Kessler 
V.  Ensley  Co..  123  Fed.  546:  Lindsay  v.  Coopor.  01  Ala.  170.  33  Ain.  St. 
Rpp.    10.5.   11   South.   .325.   16   L.   R.   A.   813. 

'Breslin  v.  Fries-Brpslin  Co.  fX.  .1.  Eq.l.  58  Atl.  313:  Coolidge  v.  Scherinar,  32 
Wash.    5.57.   73   Pac.    682. 

'New   Bninswick.   rtc.   Co.  v.   MTigij'^ridc'o.   7   Jnr.   X.    S.    132. 
26  '        • 


§  821  EQUITY     JUlUSriUDKXCK.  402 

may  be  estopped  by  their  acquiescence  from  objecting  to  the  acts 
of  the  corporation  which  are  not  illegal  nor  mala  prohibita,  but 
ultra  vires,  when  the  rights  of  innocent  third  persons  have  inter- 
vened. Express  assent  is  not  necessary  to  estop  the  stockholders  ■ 
"when  they  neglect  to  promptly  and  actively  condemn  the  unau- 
thorized act,  and  to  seek  judicial  relief  after  knowledge  of  its  being- 
done,  they  will  be  deemed  to  have  acquiesced,  and  will  be  estopped 
?s  against  innocent  third  persons."" 

§  820.  Other  Instances  of  Acquiescence, — It  is  in  conformity 
v>"ith  the  same  principle  that  parties  avIio  liave  long  acquiesced  in 
settlements  of  accounts  or  of  other  mutual  dealings  are  not  permit- 
ted to  reoi^en  or  disturb  them;  and  this  is  true,  even  though  the 
|)arties  stood  in  confidential  relations  towards  each  other,  as  trustee 
and  cestui  que  trust,  principal  and  agent,  and  the  like,  and  the  set- 
tlement embraced  matters  growing  out  of  such  relations.^  Another 
familiar  instance  of  the  estoppel  arises'  from  the  conduct  of  the 
debtor  party  toward  the  intended  assignee  of  a  thing  in  action. 
If  a  mortgagor,  obligor,  or  other  debtor,  by  keeping  silence  under 
circumstances  Avhen  he  ought  to  speak,  leads  the  intended  assignee 
to  believe  that  there  is  no  defense,  he  will  be  estopped  from  after- 
wards setting  up  any  defense  which  might  otherwise  be  available 
as  against  the  assignee  who  has  thus  been  induced  to  purchase  the 
demand.  The  estoppel  wnll  be  even  more  obvious  when  the  debtor, 
instead  of  simply  keeping  silent,  resorts  to  affirmative  and  mislead- 
ing acts   or  representations. - 

§821.  Owner  Estopped  from  Asserting-  his  Legal  Title  to  Land. 
— The  most  striking  instance  of  the  estoppel  i-ecognized  by  courts 
of  equity  is  that  already  described  in  a  former  paragraph,  wherein 
by  intentional  misrepresentation,  misleading  conduct,  or  wrongful 
concealment  a  party  may  preclude  liiniself  from  asserting  his  legal 
title  to  land,  or  from  enforcing  an  encumbrance  on  or  maintaining 
an  interest  in  real  estate.^  This  doctrine  was  established  in  e(iuity 
long  before  the  modern  rules  concerning  equitable  estoppel  by 
conduct  had  been  developed ;  and  its  operation  is  somewhat  more 
extensive  than  the  effects  produced  by  the  ordinary  forms  of  estop- 
pel. A  person  may  not  onl}'  be  prevented  from  asserting  his  title 
or  interest,  he  may  even  be  compelled,  at  the  suit  of  an  innocent 
purchaser,  to  make  good  and  specifically  perform  his  representa- 
tions. Fraud,  actual  or  constructive,  is  the  essential  and  central 
element. 

'Kessler  v.  Ensley  Co.,  123  Fed.  54G;  ilempliis,  etc.,  R.  R.  Co.  v.  Grayson, 
88  Ala.  57-2,  7   South.   122,  16  Am.  St.  Rep.  69. 

^  Clarke  v.  Hart,  .5  Jnr.  N.  S.  447. 

-Grissler  v.  Powers,  81  N.  Y.  57,  37  Am.  IW\).  475.     See  ante,  §  704. 

'See  ante,  §  807;  Sherrill  v.  Sherrill,  73  N.  C,  8;  Willmott  v.  Barber.  L.  R.  15 
Ch.  Div.  96,  106. 


40o  CEiri'Ai.N     i\ii>    AM)    i:\i:xTd.  .$  8'i,5 


CHAPTER    THIRD. 

CERTAIN  FACTS  AND  EVENTS  AVHICH  ARE  THE  OCCASIONS 
OF  EQUITABLE  PRIMARY  OR  REMEDIAL  RIGHTS. 

§822.  Introductory.  In  the  first  volume,  while  speaking  of  the 
jurisdiction.  I  stated  that  certain  facts  and  events  were  most  im- 
portant occasions  of  equitable  rights  and  duties/'  Since  these  same 
acts  are  also  recognized  by  courts  of  law  as  giving  rise  to  legal  rights 
and  duties  Avithin  a  limited  extent,  it  has  sometimes  been  said  that 
they  form  a  pai't  of  the  concurrent  jurisdiction  of  equity.  The  er- 
roneous character  of  this  theory  has  been  shown  in  earlier  sections. - 
The  rights  and  duties  of  which  they  are  the  occasions,  whether  of 
property,  of  contract,  or  of  remedy,  belong  partly  to  the  exclusive 
and  partly  to  the  concurrent  jurisdiction.  The  facts  and  events 
referred  to,  and  which  form  the  subject-matter  of  this  chapter, 
are  accident,  mistake,  and  fraud.  In  the  present  discussion  I 
shall  not  describe  in  an  exhaustive  manner  all  their  consequences 
and  eitects,  for  this  would  pi'oduce  needless  confusion.  I  shall, 
in  the  first  place,  define  them  as  they  are  conceived  of  l\v  e'lnity, 
and  explain  with  some  care  the  equitable  notions  concerning  their 
nature,  and  the  equitable  doctrines  concerning  their  essential  ele- 
ments and  attributes.  In  the  second  place,  I  shall  enumerate  their 
effects,  the  instances  of  equitable  jurisdiction  of  which  they  are 
the  occasions,  and  the  equitable  rights  and  duties  w^hich  are  main- 
tained and  enforced  by  these  phases  of  the  jurisdiction.  The  doc- 
trines which  determine  and  govern  the  most  important  of  these 
rights  will  be  more  fully  discussed  under  subsequent  and  appro- 
priate heads." 

^See  ante.  §§  359.  362. 

=  8ee  ante,   §§  138,   175  note,   188. 

^  For  example,  many  instances  of  trusts  by  operation  of  law  sprinj^  from 
fraud;  their  full  discussion  vill  be  found  in  the  sections  on  trusts.  All  the 
<listinctive  remedies,  such  as  cancellation,  reformation,  etc.,  will  be  examine'! 
in  the  division  Avhich  deals  with  remedies. 


§  824  EQUITY     JUlilSPRLDEXCE.  .404 

SECTION  I. 

ACCIDENT. 

ANALYSIS. 

§  823.  Definition. 

<;  824.  Kationale   of    the   jurisdiction. 

S   825.  General    limitations    on    the    jurisdiction. 
SS   820-829.  Instances    in    winch    the    jurisdiction    docs   not    exist. 

S   82G.  Non-perfonnance    of    contracts. 

S   827.  Supplying  lost  or  destroyed  records. 

§   828.  Other    special    instances. 

§  82!).  Parties  against  whom  the  jurisdiction  is  not  exercised. 
|j§   830-837.  Particular  instances  of  the  jurisdiction. 

S   831.   1.  Suits  on  lost  instruments. 

S  832.  Same;   instruments  not  under  seal. 

§  833.  2.  Accidental   forfeitures. 

§  834.  3.  Defective    execution    of    powers. 

S  835.  Powers   held   in  trust  will  be  enforced. 

§   S3t).  4.  Relief   against   judgments   at   law. 

§   837.  5.  Otiier    special    instances. 

§  823.  Definition. — It  is  c-onfessedly  difficult  to  define  accident 
so  as  to  include  all  the  elements  essential  to  the  equitable  concep- 
tion, and  to  exclude  all  others;  and  many  writers  have  not  attempted 
to  give  a  definition.  The  following-  expresses,  I  think,  the  true 
meaning  given  by  equity  to  the  term  as  an  occasion  for  the  exercise 
of  jurisdiction  :  Accident  is  an  unforeseen  and  unexpected  event, 
occurring  external  to  the  party  affected  b}'  it,  and  of  ivltich  his  own 
agency  is  not  tlie  proxiniate  cause,  whereby,  contrary  to  his  own  in- 
tention and  wish,  he  loses  some  legal  right  or  beiiomes  subjected 
1o  some  legal  liability,  and  another  person  acquires  a  corresponding 
legal  right,  which  it  would  be  a  violation  of  good  conscience  for 
the  latter  person,  under  the  circumstances,  to  retain.^  If  the  party's 
own  agency  is  the  proximate  cause  of  the  event,  it  is  a  mistake 
rather  than  an  accident.  This  definition  purposely  excludes  all 
fortuitous  occurrences  which  do  not  occasion  any  exercise  of  juris- 
diction, since  they  are  not  "accidents"  within  the  equitable  con- 
■(•e|)tion. 

§824.  Rationale  of  the  Jurisdiction. — Accident  is  one  of  the 
oldest  heads  of  t>(|uity  jiu'isdiction.  Th'^ie  is  reason  to  believe 
1hat,  at  an  early  day,  this  jurisdiction  Avas  much  more  undefined 
and  comprehensive  than  it  is  at  present:  but  for  a  long  time  it 
lias  been,  and  is  now,  settled  within  certain  and  somewhat  narroAv 

Mvopper  v.  Dyer,  r)9  Vt.  477,  9  Atl.  4,  59  Am.  Eep.  742,  H.  &  E.  106,  1 
Scott  400. 


405  ACCIDENT.  §  S-Z") 

limits.  Its  existence  and  exercise  involve  two  essential  requisites. 
The  first  and  principal  requisite  is,  that,  by  the  event  not  expected 
nor  foreseen,  one  party,  A,  has  without  fault  and  undesignedly  un- 
dergone some  legal  loss  or  liability,  and  the  other  party,  B,  has 
acquired  a  corresponding  legal  right,  which  it  is  contrary  to  good 
conscience  for  him  to  retain  and  enforce  against  A.  In  other 
v.ords,  because  of  the  unexpected  character  of  the  occurrence  bj' 
which  A's  legal  relations  towards  B  have  been  unintentionally 
changed,  A  is  in  good  conscience  entitled  to  relief  which  shall 
restore  those  relations  to  their  original  character,  and  replace  him 
in  his  former  position.  In  the  second  place,  this  relief,  to  which 
A  is  conscientiously  entitled,  must  be  such  as  cannot,  be  adequately 
conferred  by  courts  of  law.  Upon  these  two  essential  requisites 
the  jurisdiction  was  biised:  the  party's  conscientious  right  to  relief; 
and  the  impossibility  of  obtaining  adequate  remedy  at  law.  If 
tlie  party,  although  clearly  entitled  to  relief,  can  obtain  adequate 
and  certain  remedy  at  law,  then,  in  accordance  with  the  funda- 
mental principles  of  eciuilable  jurisdiction,  the  concurrent  jurisdic- 
tion does  not  exist,  and  the  exclusive  jurisdiction  is  not  exer- 
cised.^ This  doctrine,  it  should  be  remembered,  refers  to  the  origin 
of  the  equity  jurisdiction,  and  not  to  its  subsequent  and  present 
condition.  Its  operation  is  controlled  and  modified  by  the  other 
most  important  principle,  fully  discussed  heretofore,  that  when  the 
eciuitable  jurisdiction,  either  concurrent  or  exclusive,  has  once 
been  established  with  respect  to  any  subject-matter,  it  is  not  de- 
stroyed or  abridged  by  a  jurisdiction  subsequently  acquired  by 
the  courts  of  law  to  give  the  same  or  other  adequate  relief  under  the 
same  circumstances.  The  jurisdiction  of  efjuity  originallj'  existing 
and  exercised  on  the  occasion  of  accident  has  not,  therefore,  been 
theoretically  affected  by  the  powers  given  to  or  assumed  by  the 
courts  of  law  to  confer  complete  remedy  in  many  cases  which  form- 
ei'ly  belonged  to  the  cognizance  of  equity  alone. - 

§  825.  Limitations. — While  the  jurisdiction  occasioned  by  acci- 
dent is  clearly  limited,  and  the  instances  in  which  it  is  and  is  not 
exercised  are  well  defined,  it  is  difficult  to  formulate  any  general 
criterion  which  shall  consistently  express  the  extent  of  the  limita- 
tion, and  account  for  all  these  instances.  It  must  be  conceded. 
I  think,  that  the  conclusion.s  of  the  equity  courts  on  this  subject 
are  somewhat  arbitrary.  In  the  very  enrlipst  period  of  equity 
jurisprudence,  before  doctrines  had  been  fully  developed  and  de- 
fined, the  jurisfliction  Avas  imdoubtedly  understood  as  embracing 
oyevy  kind  of  ease  in  which  an  nnexpected  result  bail   been  produced 

•See  §§  216-222. 

'See  §§  276-281,  where  this  doctrine  is  fully  considered. 


§  8"-^G  EQUITY     JU1!1.SP1!LDEXCH.  406 

by  accident, — every  kind  of  misfortune ;  and  tlie  rule  is  even  laid 
down  in  this  manner  by  Lord  Coke/  It  is  now  the  iirnily  settlea 
doctrine,  Avith  respect  to  many  legal  obligations,  that  there  is  no 
equitable  jurisdiction  to  relieve  parties  from  their  non-performance 
caused  by  accident  in  its  ordinary  and  popular  meaning.  The  fol- 
lowing are  the  important  instances  in  which  the  jurisdiction  does 
not  exist  or  Avill  not  be  exercised. 

§  826.  Contracts. — As  a  general  rule,  where  the  obligation  arises 
from  an  express  contract  created  by  the  stipulations  of  the  parties, 
and  a  non-performance  is  wholly  the  result  of  accident,  or  a  party 
without  fault  has  been  accidentally  prevented  from  completing  the 
execution  of  the  agreement,  and  deriving  full  benefits  therefrom, 
in  either  case  equity  does  not  exercise  its  jurisdiction  to  give  him 
any  relief,  whether  by  way  of  defense  against  the  enforcement 
of  the  obligation,  or  by  way  of  affirmative  remedy.  The  exception 
is  confined  to  agreements  providing  for  a  penalty  or  a  forfeiture,  in 
which  the  jurisdiction  to  relieve  is  settled  within  defined  and  nar- 
row limits.^ 

'  4  Inst.  84 :  "Accidoiit,  an  -vvlien  a  servant  of  an  obligor,  nioi-tgagor,  etc., 
is  sent  to  pay  the  money  on  the  day,  and  he  is  robbed,  remedy  is  to  be  Jiail 
in  tliis  court  against  the  forfeiture."  This  statement  by  Lord  Coke  is  probably 
due,  in  great  measure,  to  his  ignorance  of  equity.  A  case  in  the  Introduction 
to  the  Calendars  of  Proceedings  in  Chancery  (vol.  1,  p.  cxlii.)  illustrates  the 
early  view  of  the  jurisdiction.  A  B  had  entered  into  a  bond,  with  a  heavy 
penalty,  to  repair  certain  river  banks  near  the  town  of  Stratford-at-Bow  within 
a  specified  time.  He  had  been  prevented  from  completing  the  contract  within 
the  required  time  by  sudden  and  unexpected  floods;  and  the  obligee  in  the  bond 
had  sued  him  at  law  to  recover  the  penalty.  He  thereupon  filed  a  bill  in  chancery 
to  restrain  the  action  of  the  law,  and  to  be  relieved  from  the  consequences 
of  the  accident. 

'This  doctrine  may  be  illustrated  bj^  a  simple  supposed  case.  If  A  has 
contracted  to  build  a  house  by  a  certain  day  named,  and  in  the  course  of 
completing  the  agreement  has  collected  a  quantity  of  materials  all  prepared 
and  necessary  for  the  building,  and  all  these  materials  are,  without  A's  fault, 
by  a  mere  accident — a  stroke  of  ligiitning  and  consequent  fire — destroyed, 
so  that  it  becomes  physically  impossible  to  re])lace  them  and  to  finish  the 
house  within  the  specified  time,  there  is  no  jurisdiction  in  equity  to  relieve  A 
in  any  manner  from  the  lial)ility  cavised  by  tlie  non-performance  of  his  con- 
tract. Courts  of  equity,  as  well  as  courts  of  law,  say  that  parties  nuist  guard 
against  the  possible  ettect  of  such  misfortunes  by  express  stipulations  inserted 
in  their  agreements.  Among  the  illustrations  of  this  doctrine  the  most  frequent 
are  covenants  by  lessees  to  pay  rent,  to  keep  the  buildings  in  repair,  and  the 
like;  if  the  premises  are  consumed  by  accidental  fire,  or  destroyed  by  other 
inevitable  accident,  the  lessee  is  not  relieved  from  the  obligation  of  liis  cove- 
nant at  law  or  in  equity:  Hallett  v.  Wylie,  3  Jolins.  44,  3  Am.  Dec.  4.57.  Ihis 
does  not  at  all  interfere  with  tlie  jurisdiction  which  7ii<ni  exist  to  relieve  the 
lessee  from  a  forfeiture  of  his  estate  by  the  non-performance  of  his  covenant. 
See  ante,  vol.  1,  §§453,  454.  The  same  doctrine  applies  to  other  kinds  of 
contracts,   although   both   parties  may  be  wholly  and  equally  free  from  blame. 


407  ACCIDENT.  §  831 

§827.  Supplying  Lost  Records. — It  has  been  held  that  there 
is  no  jurisdiction  in  equity  to  supply  or  establish  the  records  of  a 
court  of  law  which  have  been  lost  or  accidentally  destroyed.^     .     .     . 

§  828.  Other  Instances  in  Which  the  Jurisdiction  is  not  Exer- 
cised.— The  jurisdiction  will  not  be  exercised  on  behalf  of  a  party 
when  the  accident  is  the  result  of  his  own  culpable  negligence  or 
fault.^  Nor  will  the  jurisdiction  ever  be  exercised  on  behalf  of  a 
person  who  has  not  a  vested  right,  but  whose  only  claim  is  a  mere 
expectancy  or  hope  resting  upon  the  volition  or  discretion  of  an- 
other. As,  for  example,  if  a  testator  was  prevented  by  pure  acci- 
dent from  making  an  intended  bequest  in  favor  of  A,  equity  has 
no  jurisdiction  to  relieve  A  from  the  disappointment." 

§829.  Parties  Against  Whom  the  Jurisdiction  is  not  Exercised. 
—  There  are  also  limitations  with  respect  to  the  situation  of  the 
parties  against  whom  the  jurisdiction  is  invoked.  It  will  not  be 
exercised  in  behalf  of  any  person  against  a  bona  fide  purchase? 
for  a  valuable  consideration  and  without  notice.^  And  generally, 
the  jurisdiction  will  not  be  exercised  against  a  party  who  ha* 
an  equal  ecpiity,  and  is  equall}^  entitled  to  protection  with  the  one 
who  seeks  to  be  relieved  from  the  effects  of  an  accident.- 

§  830.     Particular  Instances  of  the  Jurisdiction. — 

§831.  1.  Suits  on  Lost  Instruments. — It  has  long  been  settled 
that  courts  of  equity  have  jurisdiction  of  suits  brought  to  recover 
the  amount  due  on  lost  bonds  and  other  sealed  instruments.  The 
original  grounds  of  this  jurisdiction  were  two.  In  the  first  place, 
bj'  the  common-law  pleading  and  procedure,  profert  of  the  sealed 
instrument  was  necessary  in  an  action  at  lavf  thereon;  and  as  no 
profert  was  possible  when  the  writing  was  lost,  the  action  could  not 
be  maintained.  Profert  was  never  necessary  in  a  suit  in  equity. 
In  the  second  place,  the  court  of  equity  could  require  an  indemuit}^ 
from  the  plaintiff,  and  could  by  its  decree  adjust  the  rights  of  the 

Illustrations:  Agreements  for  the  sale  and  purchase  of  land,  Avhere  buildings 
thereon  had  been  accidentally  burned:  Brewer  v.  Herbert,  30  Md.  .301.  !)6  Am. 
Dec.  582,  2  Keener  421,  1  Scott  425,  H.  &  B.  173:  see  ante,  §3G8;  agreements 
the  performance  of  which  is  prevented  by  tiie  death  of  a  person  upon  whose 
act  the  performance  depended:  While  v.  Xutt,  1  P.  Wms.  61,  1  Ames  Eq. 
Jur.  226,  2  Keener  404,  2  Scott  450. 

MVelch  V.  Smith,  65  Miss.  394,  4  Soutli.  340. 
Ex  parte  Greenway,   6  Ves.   812,   1    Scott  413.      For  cases  where  the  courts 
refuse  to  relieve  from  forfeiture  caused  by  the  negligence  or  fault  of  the  party 
himself,  see  §  4.52. 

-  \Vhitton  V.  Russell,  1  Atk.  448.  For  the  same  reason  a  court  of  equity 
can  not  relieve  by  supplying  the  total  non-execution  of  an  ordinary  power,  no 
matter  how  accidental;  sec  post,  §834. 

^  See  ante,  §  776. 

^  W  eal  V.  Lower,  1  Eq.  Cas.  Abr.  266. 


§  HS'i  EQUITY    JUKISPRUDEXCE,  408 

two  litigants,  by  seeuring  and  indemnifyino-  the  defendant  against 
all  further  liability  and  harm, — a  i)ower  which  was  not  possessed 
by  the  courts  of  law.  In  order  to  protect  the  defendant  in  this 
manner,  the  rule  became  settled  that  in  all  suits  praying  for  relief. 
and  not  merely  for  a  discovery, — that  is,  in  all  suits  where  a  re- 
covery of  the  amount  due  w'as  sought, — the  plaintiff  must  make 
an  affidavit  of  the  loss  accompanying  his  bill  of  complaint,  and  must 
offer  indemnity.  The  fact  that  the  connnon-law  requisite  of  a  profrrt 
has  long  been  abolished,  and  that  actions  at  law  may  now  be  main- 
tained on  sealed  instruments,  has  not  theoretically  affected  the  equi- 
table jurisdiction.^ 

-  §832.  On  Lost  Unsealed  Instruments. — AVhere  a  negotiable  bill, 
note,  or  check,  whether  payable  to  l^earer.  indorsed  in  blank,  or  not 
indorsed,  is  lost  before  maturity,  it  is  held  in  England  that  no 
action  at  law  can  be  maintained  upon  it  by  the  real  owner,  and 
that  his  remedy  is  in  equity.^  According  to  these  decisions,  the 
only  jurisdiction  in  such  case  was  that  in  e<iuity  prior  to  the  modern 
legislation  which  permitted  actions  in  courts  of  law.  Without 
inquiring  whether  this  view  of  the  jurisdiction  at  law  be  correct, 
the  jurisdiction  in  equity  of  suits  brought  by  the  real  owner  to 
recover  the  amount  due  on  lost  negotiable  instruments  has  been 
long  and  firmly  settled  upon  the  ground  of  the  indemnity  which 
can  be  given  by  a  court  of  equity  to  the  defendant,  and  whicli 
is  a  necessary  feature  of  such  suits.  An  offer  of  indemnity  b}^  the 
plaintiff  is  therefore  required,  as  the  general  rule;  but  even  without 
it  a  recovery  may  be  had,  since  the  defendant  can  always  be 
protected  by  the  ])rovisions  of  the  decree  making  a  recovery  con- 
ditional upon  his  being  fully  indemnified.-  Able  judges  have  denied 
tliat  the  equitable  jurisdiction  extends  to  suits  upon  non-negotiable 
instruments  and  other  unsealed  contracts,  since  an  action  at  law 
could  alwaA's  be  maintained,  and  no  indemnity  was  necessary." 
The  jurisdiction  is  sustained,  however,  by  the  decided  Aveight  of  au- 
thority in  suits  upon  lost  non-negotiable  instruments  and  simple 
contracts,  as  well  as  in  suits  upon  negotiable  and  sealed  instruments. 
The  reason  seems  to  be  that  the  remedy  at  law  is  not  adequate;  a 
court  of  equity  alone  can  fully  protect  the  defendant  by  its  de- 
cree from  all  liabilities  which  mai/  arise.*  .  .  .  All  these  instances 

^Ex  parte  Greenway,  0  Ves.  812,  1  Scott  413;  Patton  v.  Campbell,  70  III. 
72,  H.  &  J3.  171;  Griffin  v.  Fries,  23  Fla.  173,  2  South.  266,  11  Am.  St.  Rep. 
351;    Howe   v.   Taylor,   6    Oreg.    284,   291. 

1  Hansard  v.  Robinson,  7   Barn.  &  C.  90,  1  Scott  412. 

^Savannah  Nat.  Bank  v.  Haskins,  101  Mass.  370,  3  Am.  Rep.  373:  City  of 
Bloomington  v.  Smith,  123  Ind.  41,  23  X.  E.  972,  18  Am.  St.  Rep.  310. 

^Alossop  V.  Eadon,  16  Ves.  430,  433,  434. 

*  Reeves  v.  :\Iorgan,  48  X.  J.  Eq.  415,  21  Atl.  1040;  Moore  v.  nurnam.  fi.S 
N.  J.  Eq.   96,  51   AtL  44"9. 


409  ACCIDENT.  §  S:-)o 

of  suits  upon  lost  contracts  plainly  belong  to  the  concurrent  juris- 
diction of  equity,  because  the  plaintiff's  primary  right  of  contract 
which  is  the  foundation  of  his  cause  of  action  is  purely  legal,  and  his 
remedy  is  legal,  being  the  ordinary  judgment  for  the  recovery 
of  money.^  Although  this  particular  jurisdiction  is  theoretically 
unchanged,  yet  the  eases  under  it  are  very  few.  Actions  on  lost 
negotiable  instruments  and  other  contracts  are  ordinarily  brought 
at  law,  in  pursuance  of  modern  permissive  statutes.  This  is  es- 
pecially true  in  the  states  which  have  adopted  the  reformed  pro- 
cedure; since  the  action,  even  if  not  professing  to  be  based  upon 
the  statute,  would  be  subject  to  the  rules  which  govern  all  legal 
actions  for  the  recovery  of  money;  it  would  not  in  any  way  be 
distinguished  from  actions  confessedly  legal. 

§  833.  2.  Accidental  Forfeitures. — It  Avas  shown  in  a  former 
chapter  that  the  jurisdiction  to  relieve  from  pecuniary  penalties 
is  well  settled  and  general  -^  and  that  it  also  extends  to  some,  though 
not  to  all,  cases  of  forfeiture  as  distinguished  from  penalties.  It 
i.s.  however,  Avell  settled,  as  a  branch  of  the  jurisdiction  occasioned 
by  accident,  that,  although  the  agreement  is  not  wholly  pecuniary, 
and  is  not  one  measured  by  pecuniary  compensation,  still  if  the 
party  bound  by  it  has  been  prevented  from  an  exact  fulfillment, 
so  that  a  forfeiture  is  thereby  incurred,  by  unavoidable  accident, 
without  his  own  negligence  or  fault,  a  court  of  ecpiity  will  interpose 
and  relieve  him  from  the  forfeiture  so  caused,  upon  his  making 
compensation,  if  necessary,  or  doing  everything  else  within  his 
power  to   satisfy   the   equitable   rights   of  the   other  party.-     This 

^  TCquity  does  not  acquire  jurisdiction  merely  because  a  deed  of  land  has 
been  lost,  since  in  a  legal  action  the  deed  and  its  contents  could  always  be 
proved.  To  give  rise  to  the  equitable  jurisdiction  on  the  occasion  of  a  lost 
deed,  it  must  appear  that  there  is  no  remedy  at  all,  or  else  no  adequate  remedy 
at  law:  Whitfield  v.  Fausset,  1  Ves.  Sr.  3S7.  302.  1  Scott  409.  Tf  the  owner 
of  land  is  in  possession,  and  has  lost  his  title  deed,  there  is  no  remedy  at  all 
at  law,  for  ejectment  clearly  will  not  lie.  Equity,  then,  has  juri-;dict  ion  by  a 
suit  in  the  nature  of  an  action  to  quiet  title,  and  can  establisli  ihe  owner's 
title  and  possession:  Dalston  v.  Coatsworth,  1  P.  Wms.  731,  1  Seolt  407: 
Lancy  v.  Randlett.  80  Me.  160.  13  Atl.  fiSfi,  0  Am.  St.  Rep.  160,  1  Scott  409 
(but  the  bill  must  show  that  the  loss  was  without  ]ilaintiff's  fault).  ^Yhen  the 
owner  is  out  of  possession,  the  action  of  ejectment  will  oi'dinarily  funiish  an 
adequate  remedy. 

^  See  vol.  1,  §§432-460.  It  has  sometimes  been  said  by  writers  Ihat  this 
entire  jurisdiction  over  penalties  and  forfeitures  is  based  upon  accident.  It 
may  be  true  that,  in  the  earliest  period  of  equity,  the  chancellors  referred 
cases  of  relief  against  penalties  to  the  general  head  of  accident:  but  to  explain 
the  whole  jurisdiction  as  is  now  administered,  by  treating  it  as  based  on  accident, 
is  to  disregard  the  plain  facts  and  meaning  of  words. 

"See  §451:  Kopper  v.  Dyer,  50  Vt.  477,  0  Ail.  4,  50  Am.  Rep.  742,  H.  &  IJ. 
166,  1  Scott  400. 


§8-34  EQUITY     jri'lSI'KLUKXCE.  410 

jurisdiction  may  be  exercisetl  in  any  manner,  by  any  form  of  snit, 
and  by  granting  any  kind  of  relief  made  necessary  b.y  the  circum- 
stances of  the  particular  case.  Thus  the  relief  may  be  conferred 
by  a  suit  to  enjoin  the  prosecution  of  an  action  at  law  brought 
to  enforce  the  forfeiture,  or  to  enjoin  proceedings  on  the  judgment 
}  ecovered  in  such  an  action,  or  to  set  aside  the  forfeiture  itself, 
()!•  to  redeem  from  it,  or  to  obtain  several  of  these  remedies  in 
combination. 

§  834.  3.  Defective  Execution  of  Powcis. — This  subject  has  al- 
ready been  treated  of,  and  the  grounds,  extent,  and  limitations  of 
the  peculiar  doctrine  have  been  explained.^  It  is  unnecessary  to 
repeat  the  observations  there  made.  It  is  well  settled,  as  a  general 
rule,  that  the  non-execution — the  entire  failure  to  execute — of  a 
mere  power  not  a  trust  will  not  be  aided  in  equity.-  When,  how- 
ever, the  party  clothed  with  such  a  mere  powv^r,  by  a  deed,  settle- 
ment, or  will,  has  attempted  and  begun  to  execute  it,  and  the 
execution  is  defective  through  accident  or  mistake,  or  where  he 
has  made  an  agreement  to  execute  it  which  is  regarded  as  a  kind  of 
defective  execution,  equity  may  interpose  its  aid  by  decreeing  a 
complete  and  perfect  execution."  As  has  already  been  explained, 
this  extraordinary  jurisdiction  is  only  exercised  on  behalf  of  classes 
of  persons  who  are  considered  as  possessing  a  certain  meritorious 
or  moral  consideration,  and  against  a  party  who  has  no  equally 
meritorious  equit3\  Its  operation  is  confined  to  purchasers,  includ- 
ing mortgagees,  lessees,  and  creditors,  wives,  legitimate  children, 
and  those  to  whom  the  party  executing  stands  in  loco  parentis,  and 
charities;  it  does  not  include  husbands,  illegitimate  children,  dis- 
tant relatives,  nor  volunteers."'  As  to  the  defects  in  the  execution 
of  a  power  Avhich  equity  wnll  thus  aid  and  complete  in  proper 
oases,  they  must  be  in  matters  of  form,  and  not  of  the  very  sub- 
stance and  essence  of  the  power, — such  as  the  want  of  a  seal,  or 
of  witnesses,  or  of  signatures,  or  omissions  and  imperfections  in  the 
limitations  of  the  property.^     The  doctrine  is  confined  to  powers 

^Seo  ante,   §§  589,   590. 

-Toilet  V.  Toilet,  2  P.  Wms.  489,  1  Lead.  Cas.  Eq.  4th  Am.  ed.  365,  2  Ames 
Eq.  Jur.  305,   1   Scott  420;   Mitchell  v.  Denson,  29  Ala.  327,  «5  Am.  Dec.  403. 

'Toilet  V.  Toilet,  supra :' Chapman  v.  Gibson.  3  Brown  Cli.  229. 

SSee  ante,  §589:  Toilet  v.  Toilet,  supra;  Beatty  v.  Clark,  20  Cal.  11; 
American  Freehold  L.  ]\1.  Co.  v.  Walker.  31   Fed.  103. 

^Toilet  V.  Toilet,  1  Lead.  Cas.  Eq.  365.  and  notes:  2  Ames  Eq.  Jur.  305.  1 
Scott  420.  Where  a  power  was  required  to  he  executed  by  means  of  a  deed 
or  other  instrument  inter  vivos,  an  execution  of  it  by  a  will  is  a  defect  >vhich 
equity  will  aid:  Toilet  v.  Toilet;  but.  conversely,  when  it  was  required  to  be 
executed  only  by  a  will,  an  execution  by  an  absolute  deed  will  not  be  aided: 
Keid  V.  Shergold,  10  Ves.  370.  The  defects  which  equity  may  aid  consist  either 
of  the   use   of   an   inappropriate   instrument,   although   it    is   duly   executed,   as 


411  ACCIDENT.  §  83(i 

created  by  the  voluntary  act  of  t'crsons  in  wills,  deeds,  and  settle- 
ments; it  does  not  extend  to  those  created  and  retrulated  by  stat- 
nte.  The  defective  execntiou  of  statutory  powers,  in  the  failure  to 
comply  with  the  i)rescribed  icM|uisites,  cannot  be  aided  by  equity." 

§  835.  Powers  in  Trust  will  be  Enforced. — The  general  rule  tiiat 
equity  refuses  to  aid  the  non-execution  of  powers,  and  only  c :»r- 
rects  their  defective  execution,  relates  only  to  bare,  naked,  or  mere 
powers;  it  does  not  apply  to  powers  coupled  with  a  trust.  I\Iere 
powers  create  no  obligation  resting  on  the  donee,  nor  any  light 
in  a  person  who  may  be  benefited  by  their  execution.  Powers  in 
trust,  or  coupled  with  a  trust,  like  any  other  trust,  are  imperative : 
they  create  a  duty  in  the  trustee,  and  a  right  in  the  beneficiary. 
Equity  will  not  suffer  this  right  of  the  beneficiary  to  be  defeated, 
either  by  accident  or  by  designs  of  the  trustee,  and  will  therefore 
carry  into  eit'eet  the  intention  of  the  donor,  and  give  all  needed 
relief  to  the  beneficiary,  whenever  there  has  been  a  total  or  a 
partial  failure  to  execute  the  power  according  to  the  terms  of  the 
trust.i 

§  836.  4.  Judgments  of  Law. — Accident  is  also  one  of  the  grounds 
for  the  exercise  of  the  most  important  jurisdiction  with  respect 
to  actions  and  judgments  at  law.  Where  the  defendant  in  an 
action  at  law  has  a  good  defense  on  the  merits,  which  he  is  prevented 
by  accident  from  setting  up  or  making  available  without  any  neg- 
ligence or  inattention  on  his  part,  and  a  judgment  is  recovered 
against  him,  equity  will  exercise  its  jurisdiction  on  his  behalf  by 
enjoining  further  proceedings  to  enforce  the  jndgment,  or  by  set- 
ting it  aside  so  that  a  new  trial  can  be  had  on  the  merits.^  In 
many  states,  especially  in  those  which  have  adopted  the  refoimecl 
j)rocedure,  this  particular  relief  is  usually  obtained  by  means  of 
a  motion  for  a  new  trial,  and  the  necessary  occasions  for  a  resort 
to  equity  have  been  lessened:  the  equitable  jurisdiction,  however, 
has  not  been  abrogated  even  in  those  states,  and  it  is  constantly 
invoked  in  the  other  commonwealths. 


in  ToFIet  v  ToUpt :  Tn  ro  ■Dyko's  Estate.  L.  R.  7  Eq.  337;  or  in  the  improper 
and  insufficient  mode  of  expontinjr  an  appropriate  kind  of  instrument — as,  for 
example.  omittiuGf  a  seal.  Tn  order  to  admit  the  exercise  of  the  jurisdiction 
and  tr»  o-rant  relief,  there  must  he  somethinjr  more  than  a  mere  verhal  promise 
to  execute  the  power:  there  must  nlways  he  some  writing-  attemptinf.'  or  sliow- 
in<r  an  intention  to  execute:  Mitchell  v.  Benson.  20  Ala.  327.  C^ry  .Am.  Dec.  403. 
Nee,  also,  on  the  general  doctrine.  Kenrney  v.  Vauphan.  50  Mo.  2S4. 

*  Kearney  v.  Vauj?han.  50  Mo.  2S4;  Williams  v.  Tudd.  20  S.  C.  213.  2  S.  K. 
14,  4  Am.  St.  Rep.  714. 

Uiihhs  V.  Mar.sh.  2  Met.  243.  251;  Withers  v.  Yeadon,  1  Rich.  Eq.  324,  320. 
iSee.  also.  §  1002. 

^fcjee,  also,  post,  §  1364. 


EQUITY     JUKlSl'KUiJJiKGJi.  413 

SECTION  II. 

MISTAKE. 


§  838.  Origin    ami    purpose    of    this    jurisdicfion. 
§  839.  i.  Deliiiition. 
§§   S4U-S50.  11.  Various  kiiuls  of  niistalvcs  whicli  furuisli  an  occasioii  for  relief. 
§§  841-851.  First.     .Mistakes  of  law. 

§  842.  Tlie  general  rule  and  its  limitations. 

§   843.  Mistakes  as  to  the  legal  import  or  effect  of  a  transaction. 
§§  844-851.  Particular   instances    in   wliicli    relief   will    or   will    not    be   granted. 
§  845.  Keformatioii  of  an  instrument  on  account  of  a  mistalce  of  law. 
§  84G.  Mistake  common  to  all  parties:    mistake  of  a  phiili   rule. 
§  847.  Alistake  of  law  accompanied  witli  inequitable  conduct  of  the  otlier 

part}'. 
§  848.  Same:    between   parties   in   relations  of  trust. 
§  84'J.  llelief  where  a  party  is  mistaken  as  to  his  own  existing  legal  rights, 

interests,    or    rehitions. 
§  850.  Compromises   and   voluntary   settlements   made   upon   a  mistake   as 

to   legal   rights. 
§  851.  Tayinents  of  money  under  a  mistake  of  law. 
§§  852-85G.  ^Second.     Mistakes   of   fact. 

§  853.  How  mistal<es  of  fact  may  occur. 

§  854.  In  wiiat  mistakes  of  factj  may  consist. 

§  855.  Compromises  and  speculative  contracts. 

§  850.  llequisjtes    to    relief:     mistake    must    be    material    and    free    from 

culpable   negligence. 
§§  857-StJ7.  111.  How   mistake   may   be   shown:    when   by   parol    evidence. 

§  858.  Parol  evidence   in   general   ia   cases  of  mistake,   fraud,  or   surprise. 
§  859.  In  suits  for  a  reformation  or  cancellation :   character  and  effect  of 

the    evidence. 
§  8(i0.  Parol  evidence  in  defense  in  suits  for  a  specific  performance. 
§  8(il.  Parol    evidence    of    mistake    on    the    plaintiff's    part    in    suits    for    a 

specific  performance:   P^nglish  rule. 
§   8G2.  Same:    American    rule:    evidence   atlinissible. 
§  8(i3.  E\ddence  of  a  parol  variation  which  has  been  part  performetl. 
§§  804-8()7.  Etrect  of  the  statute  of  frauds  upon  the  use  of  parol   evidence   in 

equitable    suits. 
§  8G5.  Two   classes   of   cases   in   whicli  the  use  of   parol   evidence   may   be 

affected   by   statute. 
§  8GG.  General  doctrine:  parol  evidence  of  mistake  or  fraud  admissible  in 

both   these   classes    of   cases. 
§  8G7.  Glass   v.   Hulbert:    examination   of   proposed   limitations   upon   this 

general    doctrine. 
§§  8G8-S71.  IV.  Instances   of  equitable   jurisdiction  occasioned   by   mistake. 
§  808.  When  exercised  by  way  of  defense. 

§  809.  By  way  of  affirmative  relief:    recovery  of  money  paid   by   mistake. 
S  870.  Affirmative    relief:    reformation    and    cancellation. 
§  871.  Conditions  of  fact  which  are  occasions  for  affirmalive  relief. 


413  ^iisTAKi:.  §  8.";» 

§838.  Origin  and  Purpose  of  This  Jurisdiction. — From  the  time 
when  jurisdiction  was  first  formally  delegated  to  the  chancellor 
by  the  crown,  mistake  has  played  a  most  important  part  as  the 
occasion  of  equitable  rights  and  duties,  and  for  the  exercise  of  the 
jurisdiction  in  awarding"  equitable  remedies.  In  tlie  earlier  periods, 
when  the  domains  of  the  law  courts  and  of  the  court  of  chancery 
were  sharply  discriminated,  when  the  common-law  judges  were  not 
influenced  by  equitable  notions,  this  branch  of  equitable  jurispru- 
dence and  jurisdiction  consisted  entirely  in  the  means  b}-  which 
certain  parties  were  prevented  from  holding  and  enjoying  legal 
rights,  and  certain  other  parties  were  relieved  from  the  burden 
of  legal  duties  and  liabilities,  which  had  originated  under  a  mis- 
take, and  which  were  complete  and  unassailable  at  law.  In  the 
progress  of  time,  as  the  common  law  became  more  and  more  con- 
formed to  equitable  principles,  the  legal  tribunals  assumed  a  partial 
cognizance  and  gave  a  partial  relief  in  cases  involving  mistake. 
All  the  possihle  modes  in  which  the  remedial  jurisdiction  occasioned 
by  mistake  can  be  exercised  are  the  following:  1.  Negatively,  as  a 
ground  of  defense  either  in  actions  at  law  oi'  in  suits  in  equity, 
to  defeat  an  enforcement  of  and  recovery  upon  either  legal  or  equi- 
table rights  of  action;  2.  Affirmatively,  as  a  ground  for  rescinding 
a  transaction,  and  restoring  the  mistaken  party  to  his  original  posi- 
tion by  means  of  an  appropriate  legal  action  and  a  recovery  therein 
of  money  or  j)roperty;  3.  Affirmatively,  as  a  ground  for  the  equi- 
table relief  of  rescinding  a  transaction,  or  canceling  an  agreement 
or  other  written  instrument ;  4.  Affirmatively,  as  a  ground  for  the 
equitable  relief  of  reforming  or  re-executing  a  written  instrument. 
The  final  object  of  the  present  discussion  is  to  ascertain  when  these 
various  remedies  may  be  obtained  in  equity:  and  incidentally  to  as- 
certain when  and  to  what  extent  some  of  them  may  be  conferred  by 
courts  of  law.  The  discussion  itself  will  be  conducted  undei  the 
following  divisions :  1.  Definition ;  2.  A  statement  of  the  various 
kinds  of  mistakes  both  of  law  and  of  fact  which  do  or  do  not  furnish 
an  occasion  for  relief,  with  an  examination  of  the  equitable  con- 
ception and  the  essential  elements  of  a  mistake  in  order  that  it  may 
be  a  ground  for  the  exercise  of  jurisdiction;  3.  The  mode  of  showing 
a  mistake,  and  especially  how  far  may  parol  evidence  be  resorted 
to  for  the  purpose  of  showing  mistakes  m  written  instruments: 
4.  An  enumeration  of  the  instances  and  forms  of  equitable  juris- 
diction and  reliefs  occasioned  by   mistake. 

§839.  I.  Definition. — It  is  very  difficult  to  formulate  a  cJefini- 
tion  which  shall  contain  the  essential  elements  of  the  conception 
as  distinguished  from  its  effects,  and  which  shall  accurately  dis- 
criminate between  mistake  and  accident  on  the  one  side,  and  fraud 


§  840  EQUITY    JURIsrHLDEXCE.  414 

and  negligence  ou  tlie  other.  The  deiinitiuns  given  by  some  Ameri- 
can and  English  text-writers  describe  the  efi'ects  of  mistake, — 
the  consequences  resulting  from  it, — rather  than  its  essential  fea- 
tures. It  was  shown  in  the  preceding  section  that  accident  is  an 
unexpected  occurrence  external  to  the  partly  aft'ected  by  it;  and  its. 
operation  is  ordinarily  to  prevent  that  party  from  doing  some  act 
whereby  he  becomes  subjected  to  a  liability  which  would  not  other- 
wise have  arisen.  Mistake,  on  the  other  hand,  is  internal;  it  is  a 
mental  condition,  a  conception,  a  conviction  of  the  understanding, — • 
erroneous,  indeed,  but  none  the  less  a  conviction, — which  influences 
the  will  and  leads  to  some  outward  physical  manifestation.  Its 
operation  is  ordinarily,  though  nut  always,  affirmative, — the  doing 
of  some  act  which  woidd  not  have  been  done  in  the  absence  of  the 
particular  conception  or  conviction  which  infiueuced  the  free  action 
of  the  will.  Its  essential  prerequisite  is  ignorance.  It  is  distinguish- 
ed from  fraud,  fraudulent  representations,  or  fraudulent  conceal- 
ments by  the  absence  of  knowledge  and  intention,  wdiich  in  legal 
fraud  are  actually  present,  and  in  constructive  fraud  are  theoret- 
ically present,  as  necessary  elements.  It  is  also  distinguished 
from  that  inattention  or  absence  of  thought  which  are  inherent 
in  negligence.  The  erroneous  conception  or  conviction  of  the  under- 
standing which  constitutes  the  equitable  notion  of  mistake  has  noth- 
ing in  common  with  negligence;  etpiity  will  not  relieve  a  person 
from  his  erroneous  acts  or  omissions  resulting  from  his  own  negli- 
gence.^ Mistake,  therefore,  within  the  meaning  of  equity,  and  as  the 
occasion  of  jurisdiction,  is  an  erroneous  mental  condition,  con- 
ception, or  conviction,  induced  by  ignorance,  misapprehension,  or 
misunderstanding  of  the  truth,  but  Avithout  negligence,  and  resulting 
in  some  act  or  omission  done  or  suffered  erroneously  by  one  or  both 
the  parties  to  a  transaction,  but  without  its  erroneous  character 
l)eing  intended  or  known  at  the  time.  .  .  . 

§  840.  II.  Various  Kinds  of  Mistakes  Which  Furnish  an  Occa- 
sion for  Relief. — We  are  met  at  the  outset  by  a  natural  line  of  divi- 
sion. A  party  may  enter  into  a  transaction  aKering  his  legal  rela- 
tions for  the  better  or  the  worse,  with  full  knowledge  of  all  the 
facts  connected  therewith,  but  ignorant  or  mistaken  concerning- 
either  the  general  law  of  the  land  governing  the  ease,  or  concern- 
ing his  own  i)ersonal  legal  rights  aft'ected  by  or  resulting  from  the 
ti'ansaction.  On  the  other  hand,  he  may  be  cognizant  of  the  gen- 
eral law  and  of  his  own  legal  rights,  but  be  ignorant  or  mistaken 
as  to  some  material  fact  of  the  transaction  Avhich  forms  an  important 
factor  in  determining  his  action.     All  possible  mistakes  are  there- 

^Diman  v.  Providence,  etc.,  R.  R.  Co.,  .5  R.  T.  130,  3  Keener  2.56;  Western 
K.  R.  Co.  V.  Babcock,  G  Met.  340,  2  Keener  937.     See,  further,  post,  §  856. 


415  MISTAKE.  §  841 

l'o)'e  separated  into  those  of  law  and  those  of  fact,  although  it  is 
sometimes  very  ditficult  to  ascertain  in  a  particular  instance  whether 
the  mistake  is  purely  one  of  law,  or  is  of  law  and  of  fact  in  combi- 
nation. As  the  eases  in  which  persons  are  relieved  from  their 
mistakes  of  law  are  somewhat  exceptional,  it  will  be  convenient 
to  examine  them  iirst  in  order. 

§  841.  First.  Mistakes  of  Law. — It  is  very  important  to  form 
an  accurate  notion  of  the  various  conditions  included  within  this 
general  term ;  much  confusion  and  apparent  conflict  of  opinion  have 
resulted  from  a  failure  to  recognize  these  distinctions.  Mistake 
of  law  may  be  an  ignorance  or  error  with  respect  to  some  general 
rules  of  the  municipal  law  applicable  to  all  persons,  which  regulate 
human  conduct,  determine  rights  of  property,  of  contract,  and  the 
like;  such  as  the  rules  making  certain  acts  criminal,  and  those 
controlling  the  devolution,  accjuisition,  and  transfer  of  estates,  and 
those  prescribing  the  modes  of  entering  into  agreements.  On  the 
other  hand,  the  term  may  mean  the  ignorance  or  error  of  a  particu- 
lar person  with  respect  to  his  own  legal  rights  and  interests  which  are 
affected  by  or  which  result  from  a  certain  transaction  in  which 
he  engages.^  This  application  of  the  term  may  present  two  en- 
tirely different  conditions.  The  person  about  to  enter  into  the  trans- 
action may  be  ignorant  of  or  mistaken  about  his  own  antecedent 
existing  legal  rights  and  interests  which  are  to  be  affected  by  what 
he  does,  although  he  correctly  apprehends  and  fully  understands 
the  legal  import  of  the  transaction  itself  and  its  true  effects  upon 
his  supposed  legal  rights;-  or  the  person  may  be  correctly  informed 
as  to  his  (existing  legal  rights,  interests,  or  relations,  and  may  ])e 
ignorant  or  mistaken  with  respect  to  the  legal  import  of  the  trans- 
action in  Avliich  he  engages,  and  its  legal  effect  upon  those  rights, 
interests,  or  relations.  Finally,  in  any  one  of  the  foregoing  instances 
the  ignorance  or  error  may  be  confined  to  one  party,  or  it  may 
extend  to  l)oth  parties;  all  the  parties  may  alike  enter  into  the  trans- 
action under  a  common  ignorance  or  error  concerning  the  general 
rules  of  the  law,  or  concerning  the  individual  legal  interests  affected 
])y  or  resulting  from  it.  An  ancient  and  familiar  maxim  of  the 
common  law  is.  Ignorantia  juris  non  excusat.  This  maxim  con- 
fessedly has  its  primary  application  to  cases  of  the  first  class  above 
described, — ignorance  or  error  concerning  the  general. rules  of  law 

'Alabanica  &  V.  R.  Co.  v.  .Tnnos,  73  :\I)ss.  110,  10  South.  lO.i,  55  Am.  S(. 
Rop.    4SS. 

-  For  pxaniplp.  n  person  nbont  to  irivc  a  roloase  miylit  orroneoiisly  siip]")r.3'^ 
that  he  held  only  n  life  estate,  while  in  fact  he  was  the  owner  in  fee:  an<l 
might  know  that  the  lepal  operation  of  the  conveyance  was  to  reJease  all  the 
the   interest   which   he  had. 


§  84.;^  EQUITY     JURISPRUDEXCE.  416 

controlling  human  conduct,  and  especially  in  criminal  prosecutions. 
The  real  question  for  discussion  is.  How  far  does  it  apply  to  the  two 
species  contained  in  the  second  class, — mistakes  as  to  individual 
legal  rights?  The  principle  embodied  in  the  maxim  was  derived 
from  the  Roman  law;  little  aid,  however,  can  be  derived  from  the 
uncertain  and  conflicting  opinions  of  the  Roman  law  jurists  and 
commentators. 

§842.  The  General  Rule,  and  its  Limitations. — The  doctrine  is 
settled  that,  in  general,  a  mistake  of  law,  pure  and  simple,  is  not 
adequate  ground  for  relief.  Where  a  party  with  knowledge  of  all 
the  material  facts,  and  without  any  other  special  circumstances 
giving  rise  to  an  eciuity  in  his  behalf,  enters  into  a  transaction 
affecting  his  interests,  rights,  and  liabilities,  under  an  ignorance 
of  error  with  respect  to  the  rules  of  laAv  controlling  the  ease, 
courts  Avill  not,  in  general,  relieve  him  from  the  consequences  of 
his  mistake.^  The  reasons  are  obvious.  The  administration  of 
justice,  the  laM'^  itself  as  a  practical  system  for  the  regulation  of 
human  conduct,  require  that  some  fundamental  assumptions  should 
be  made  as  postulates.  The  most  important,  perhaps,  of  all  these, 
is  the  assumption  that  all  persons  of  sound  and  mature  mind  are 
presumed  to  know  the  law.  If  ignorance  of  the  law  were  generally 
allowed  to  be  pleaded,  there  could  be  no  security  in  legal  rights,  no 
certainty  in  judicial  investigations,  no  finality  in  litigations.  While 
this  general  doctrine  prevails  in  equity  as  well  as  at  law.  its  opera- 
tion is  not  there  universal :  it  is  subject  to  modifications  and  limita- 
tions:  equity  does  sometimes  exercise  its  jurisdiction  on  the  occa- 
sion of  mistakes  of  law.  If  the  mistake  of  law  is  not  pure  and  sim- 
ple, but  is  induced  or  accompanied  by  other  special  facts  giving 
rise  to  an  independent  equity  on  behalf  of  the  mistaken  person, 
such  as  inequitable  conduct  of  the  other  party,  there  can  be  no 
doubt  that  a  court  of  equity  will  interpose  its  aid.-  Even  when 
the  mistake  of  law  is  pure  and  simple,  equity  may  interfere.  The 
difficulty  is  to  ascertain  any  general  criterion  which  shall  determine 
and  include  all  such  cases.  Many  judges  have  attempted  to  formu- 
late a  criterion  for  all  instances  of  pure  mistakes  of  law  which  will 

^  If  a  legal  question  could  be  settled  by  numbers  of  judicial  dicta  expressed 
in  the  most  general  terms,  there  could  be  no  doubt  of  the  universality  of  the 
doctrine  stated'  in  the  text.  Hunt  v.  Rousmaniere.  S  Wheat  174.  1  Pet.  1,  2 
:\Iason  342,  H.  &  B.  177,  182,  2  Ames  Eq.  Jur.  2.50.  3  Keener  (1.  2  Scott  544: 
Kenyon  v.  Welty.  20  Cal.  G.37,  2  Ames  Eq.  Jur.  283;  Marshall  v.  Westrope,  98 
Iowa  324,  07  N.  W.  257,  H.  &  B.  208,  3  Keener  Ififi;  Oebb  v.  Rose.  40  Md.  387, 
3  Keener  427;  Jacobs  v.  Morange,  47  N.  Y.  57.  Sh.  153;  Ottenheimer  v.  Cook, 
10  Heisk.  309,  3  Keener  71;  Proctor  v.  Thrall,  22  Vt.  262.  2  Ames  Eq.  Jur.  270. 

-See  post,  §  847:  Spurlock  v.  Brown.  91  Tenn.  241.  18  S.  W.  868;  Benson  v. 
Markoe,  37  Minn.  30.  33  X.  W.  38,  5  Am.  St.  Rep.  81 B. 


417  MISTAKE.  1^  S43 

be  relieved  in  equity,  but  their  conclusions  are  conflicting',  and  none 
is  sustained  by  the  authority  ol'  judicial  decisions.  It  has  been 
said  by  judges  of  the  highest  ability  that  the  general  doctrine 
heretofore  stated,  and  embodied  in  the  maxim,  Ignorantia  juris  non 
excusat,  is  confined  to  mistakes  of  the  general  rules  of  law, — 
the  first  class  of  mistakes  described  in  the  preceding  paragraph: 
that  it  has  no  application  to  the  mistakes  of  persons  as  to  their  own 
private  legal  rights  and  interests, — the  second  class  before  de- 
scribed; that  'jus,"  in  the  maxim,  denotes  the  general  law,  the 
law  of  the  country,  and  never  means  private  legal  rights."^ 

§  843.  Mistake  as  to  the  Legal  Import  or  Effect  of  a  Transaction. 
— That  this  rule,  as  suggested  by  Lord  Westbury.  would  furnish  a 
clear,  definite,  and  in  some  respects  a  desirable  criterion  cannot  be 
doubted;  but  it  is  not,  in  its  full  extent,  sustained  by  authority; 
indeed,  a  portion  of  its  conclusions  is  directly  opposed  to  the  over- 
Avhelming-  weight  of  judicial  decisions.  The  rule  is  well  settled 
that  a  simple  mistake  by  a  party  as  to  the  legal  effect  of  an 
agreement  which  he  executes,  or  as  to  the  legal  result  of  an  act 
which  he  performs,  is  no  ground  for  either  defensive  or  affirmative 
relief.  If  there  were  no  elements  of  fraud,  concealment,  misrepre- 
sentation, r.ndue  influence,  violation  of  confidence  reposed,  or  of 
other  inequitable  conduct  in  the  transaction,  the  party  who  knew, 
or  had  an  opportunity  to  know,  the  contents  of  an  agreement  or 
other  instrument  cannot  defeat  its  performance  or  obtain  its  can- 
cellation or  reformation  because  he  mistook  the  legal  meaning  and 
eff'ect  of  the  whole  or  of  any  portion  of  its  provisions.  Where 
the  parties,  with  knowledge  of  the  facts,  and  without  any  equitable 
incidents,  have  made  an  agreement  or  other  instrument  as  they 
intended  it  should  be.  and  the  writing  expresses  the  transaction 
as  it  was  understood  and  designed  to  be  made,  then  the  above 
rule  uniformly  applies;  equity  will  not  allow  a  defense,  or  grant 
a  reformation  or  rescission,  although  one  of  the  parties — and  as 
many  cases  hold,  both  of  them — may  have  mistaken  or  miscon- 
ceived its  legal  meaning,  scope,  and  effect.^     The  principle  underly- 

'  This  view  is  supported  by  the  authority  of  Lord  Westbury,  certainly  one  of 
the  ablest  judges  that  ever  sat  in  the  Enprlish  court  of  chancery,  and  distin- 
jruished  for  the  remarkable  grasp  and  clear  enunciation  of  principles  in  all  his 
opinions.  Cooper  v.  Phibbs.  L.  R.  2  H.  L.  149.  170.  2  Ames  Eq.  Jur.  266,  2 
Scott  .559,  3  Keener  43.  8hep.  148. 

'  The  circumstances  mentioned  in  the  text  are  the  same  as  the  second  species 
of  the  second  class  described  before  in  §  841.  where  a  person  knowing  correctly 
his  existing  legal  rights  and  relations  is  mistaken  as  to  the  legal  import  of  the 
transaction  in  which  he  engages,  and  of  its  legal  effect  upon  those  rights  or 
relations.  Powell  v.  Smith,  L.  R.  14  Eq.  8.5.  90:  Hunt  v.  Rotismaniere.  8  Wheat. 
174,  1  Pet.  1,  H.  &  B.  177,  183,  2  Ames  2.50.  3  Keener  6,  2  Scott  544;  Kelly  v. 
27 


^  b4j  EQUITY    JUmSPRUDENCE.  418 

ing  this  rule  is,  that  equity  will  not  interfere  for  the  purpose  of 
carrying  out  an  intention  ■which  the  parilcs  did  nut  have  when  they 
entered  into  a  transaction,  but  which  they  might  or  even  would  have 
had  if  they  had  been  more  correctly  informed  as  to  the  law, — if 
they  had  not  been  mistaken  as  to  the  legal  scope  and  effect  of 
their  transaction.  If  an  agreement  or  wa^itten  instrument  or  other 
transaction  expresses  the  thought  and  intention  which  the  parties 
had  at  the  time  and  in  the  act  of  concluding  it,  no  relief,  affirmative 
or  defensive,  will  be  granted  with  respect  to  it,  upon  the  assumption 
that  their  thought  and  intention  would  have  been  different  if  they 
had  not  been  mistaken  as  to  the  legal  meaning  and  efiPect  of  the 
terms  and  provisions  by  which  such  intention  is  embodied  or  ex- 
pressed, even  though  it  should  be  incontestably  proved  that  their 
intention  would  have  been  dift'erent  if  they  had  been  correctly 
informed  as  to  the  law.  These  rules  are  settled  with  perfect  unani- 
mity where  one  party  has  been  mistaken  in  such  a  manner ;  they  are 
also  applied  by  very  many  cases  where  the  same  mistake  is  com- 
mon to  both  the  parties. 

§  844.  Particular  Instances  in  Which  Relief  will  or  will  not  be 
Granted. — Firmly  settled  as  are  the  foregoing  general  rules,  it  is 
equally  well  settled  that  there  are  particular  instances  in  which 
equity  will  grant  defensive  or  affirmative  relief  from  mistakes 
of  law  pure  and  simple,  as  well  as  from  those  accompanied  by  other 
inequitable  incidents.  The  only  difficulty  consists,  as  has  already 
been  mentioned,  in  drawing  any  sharply  defined  lines  by  which  all 
these  instances  may  be  accurately  determined.  I  shall  endeavor  to 
state  those  conclusions  which  seem  to  be  based  upon  principle  as 
well  as  sustained  by  authority;  although  it  must  be  conceded  that 
no  results  can  be  reached  which  shall  represent  the  unanimous  con- 
currence of  decisions  and  dicta.  It  is  certain,  however,  that  no 
mistake  of  law  will  be  relieved  from  unless  it  is  material,  and  the 
court  is  certain  that  the  conduct  of  the  parties  has  been  deter- 
mined l;y  it.^ 

§  845.  Reformation  of  an  Instrument  on  Account  of  a  Mistake 
of  Law. — The  first  instance  which  I  shall  mention  is  closely  con- 
nected with  the  doctrine  stated  in  the  last  paragraph  but  one. 
It  was  there  was  shown  that  if  an  agreement  is  what  it  was  in- 


Turner,  74  Ala.  51.3.  3  Koeiier  92;  Fowler  v.  Black,  136  111.  363,  26  N.  E.  59().  2 
Ames  Eq.  Jur.  293,  3  Keener  100,  2  Scott  .550:  Marshall  v.  Westrope,  98  Iowa  324, 
67  N.  W.  257,  H.  &  B.  208,  3  Keener  L,0:  Eldridge  v.  Dexter  &  P.  R.  Co.,  88  Me. 
191.  93  Atl.  974.  3  Keener  158;  raldwell  v.  Depew,  40  ?iTinn.  528.  42  N.  W.  479, 
2  Keener  1000. 

'  Stone  V.   (lodfrey.  5  De  Go\,  M.   &  G.   70,  00,   per  Turner,   L.  J.      See,  also, 
post,  §  856. 


411)  MISTAKE.  §  84G 

tended  to  be,  equity  would  not  interfere  with  it  because  the  parties 
had  mistaken  its  legal  import  and  effect.  If,  on  the  other  hand, 
after  making  an  agreement,  in  the  process  of  reducing  it  to  a 
Avritten  form  the  instrument,  by  means  of  a  misiake  of  law,  fails  to 
express  the  contract  which  the  parties  actually  entered  into,  equity 
will  interfere  with  the  appropriate  relief,  either  by  way  of  defense 
to  its  enforcement,  or  by  cancellation,  or  by  reformation,  to  the 
same  extent  as  if  the  failure  of  the  writing  to  express  the  real 
contract  was  caused  by  a  mistake  of  fact.  In  this  instance  there  is 
no  mistake  as  to  the  legal  import  of  the  contract  actually  made; 
but  the  mistake  of  law  prevents  the  real  contract  from  being  em- 
bodied in  the  written  instrument.  In  short,  if  a  written  instrument 
fails  to  express  the  intention  which  the  parties  had  in  making-  the 
contract  which  it  purports  to  contain,  equity  will  grant  its  relief, 
affirmative  or  defensive,  although  the  failure  may  have  resulted  from 
a  mistake  as  to  the  legal  meaning  and  operation  of  the  terms  or 
language  employed  in  the  writing.  Among"  the  ordinary  examples 
of  such  errors  are  those  as  to  the  legal  effect  of  a  description  of 
the  subject-matter,  and  as  to  the  import  of  technical  words  and 
phrases;  but  the  rule  is  not  confined  to  those  instances.^ 

§  846.  Mistakes  Common  to  All  the  Parties — Mistake  of  a  Plain 
Rule. — It  has  been  said  that  whenever  a  mistake  of  law  is  common 
to  all  the  parties,  where  they  all  act  under  the  same  misapprehen- 
sion of  the  law,  and  make  substantially  the  same  mistake  concern- 
i]]g  it,  this  is  a  sufficient  ground,  without  any  other  incidents,  for 
the  interpos'tion  of  equity.  No  such  general  rule,  in  my  opinion, 
can  be  regarded  as  established,  or  even  suggested,  by  the  weight  of 
authority;  and  it  is  certainly  contradicted  b.y  well-considei-ed  deci- 
sions of  most  able  courts.  It  Avill  be  found,  I  think,  that  the  in- 
stances of  relief  where  the  mistake  of  law  was  mutual  fall  under 
the  particular  rule  stated  in  the  last  preceding  paragraph.  It  has 
also  been  asserted,  as  a  general  criterion,  that  whei^e  the  mistake 
is  concerning  a  clear,  unquestioned,  unequivocal  rule  of  the  law,  a 
court  of  etpiity  will   relieve  the  party  from   its   consequences;   but 

'  Hunt  V.  Kmisnianiorc,  8  W  heat.  174.  ]  IM.  1.  11.  &  15.  177.  182.  2  Ames  Eq.  ,Jiir. 
250,  3  Keener  6,  2  Scott  544;  Snell  v.  Ins.  Co..  !18  l^  S.  8.>..:}  Keener  80;  Grls- 
wold  V.  Hazard,  14]  U.  S.  26,  11  f:>up.  Ct.  972,  H.  &.  B.  197.  2  Ames  Eq.  Jur.  25!i. 
3  Keener  107;  Park  Bros  &  Co.  v.  Blodsett.  64  Conn.  28,  29  Atl.  133,  H.  &  B. 
234,  3  Keener  150:  Wyclie  v.  Greene,  16  C,a.  49,  2  Ames  Eq.  Jur.  289;  Dinwiil- 
die  V.  Self.  145  III.  290;  33  N.  E.  892,  3  Keener  137:  Stafford  v.  Fetters.  55 
Iowa  484,  8  N.  W.  322,  H.  &  B.  191,  3  Keener  86:  Lee  v.  Pereival,  85  Iowa  135,  52 
N.  W.  543,  3  Keener  135;  Canedy  v.  ^.\nxc^\  13  Gray  373,  2  Ames  Eq.  Jur.  256, 
3  Keener  35,  2  Soott  552;  Stockbrido;e  Iron  Co.  v.  II.  I.  Co..  107  Mass.  290,  3 
Keener  54;  Pitelier  v.  Hennessey,  48  X.  Y.  415,  3  Keener  65;  ^leNaughten  v. 
Partridge,  11  Oliio  223,  38  Am.  Dec.  731,  2  Ames  Eq.  Jur.  279. 


§  841  EQUITY     JUm.Sl'ItUDEXCE.  420 

■where  the  mistake  is  concerning  a  doubtful,  obscure,  or  unsettled 
rule,  no  relief  will  be  granted.  In  the  first  place,  this  proposition, 
if  taken  as  a  general  rule,  is  directly  opposed  to  the  fundamental 
principle  upon  which  the  entire  doctrine  concerning  mistakes  of 
Imw  is  based.  The  presumption  that  every  person  knows  the  law 
must  necessarily  extend  to  all  rules  of  the  law  alike.  To  permit 
a  distinction  between  rules  said  to  be  clear  and  those  claimed  to  be 
doubtful  would  at  once  open  the  door  for  all  the  evils  in  the  ad- 
miuistration  of  justice,  which  the  presumption  itself  is  intended  to 
exclude.  In  the  second  place,  the  proposition  finds  no  support,  as 
a  general  rule,  from  the  decisions  of  authority.  All  the  cases  in 
which  such  language  was  originally  used  by  the  judges,  either  as 
a  dictum  or  as  the  ratio  decidendi,  were  cases  arising  upon  family 
compromises  and  settlements,^  which,  aL  will  appear  hereafter,  are 
governed  by  special  considerations,  whether  they  involve  mistakes 
of  law  or  of  fact.  The  rule,  so  far  as  it  may  be  called  a  rule,  has  a 
very  restricted  application,  and  cannot  be  raised  to  the  position 
of  a  general  criterion.  There  are  undoubtedly  cases,  not  arising 
out  of  family  compromises,  in  which  parties  ignorant  or  mistaken 
concerning  their  own  dear  legal  rigJits  have  been  relieved;  but  these 
will  all  find  another  explanation  more  consonant  with  principle 
than  the  foregoing  alleged  general  rule. 

i;  847.  Mistake  of  Law  Accompanied  with  Inequitable  Conduct 
of  the  Other  Party.— AVhatever  be  the  effect  of  a  mistake  pure  and 
simple,  there  is  no  doubt  that  equitable  relief,  affirmative  or  de- 
fensive, will  be  granted  when  the  ignorance  or  misapprehension  of 
a  party  concerning  the  legal  effect  of  a  transaction  in  which  he 
engages,  or  concerning  his  own  legal  rights  which  are  to  be  affected, 
is  induced,  procured,  aided,  or  accompanied  by  inequitable  conduct 
of  the  other  parties.  It  is  not  necessary  that  such  inequitable  con- 
duct should  be  intentionally  misleading,  much  less  that  it  should  be 
actual  fraud;  it  is  enough  that  the  misconception  of  the  law  was 
the  result  of,  or  even  aided  or  accompanied  by,  incorrect  or  mis- 
leading statements,  or  acts  of  the  other  party.  When  the  mistake 
of  law^  is  pure  and  simple,  the  balance  held  by  justice  hangs  even; 
but  when  the  error  is  accompanied  by  any  inequitable  conduct  of 
the  other  party,  it  inclines  in  favor  of  the  one  wdio  is  mistaken. 
The  scope  and  limitations  of  this  doctrine  may  be  summed  up  in 
the  proposition  that  a  misapprehension  of  the  law  by  one  party, 
of  which  the  others  are  aware  at  the  time  of  entering  into  the  trans- 
action, but  which  they  do  not  rectify,  is  a  sufficient  ground  for 
equitable  relief.  A  court  of  equity  will  not  permit  one  party  to 
take  advantage  and  enjoy  the  benefit   of  an  ignorance  or  mistake 

,      ^As  Naylor  v.  Winch,   1   h^im.  &   ^^t.  5.35,  2  Scott  o7G.     See  post.  §850. 


431  MISTAKE.  §  849 

of  law  by  the  other,  which  he  kncAv  of  and  did  not  correct.  "Whilc- 
(-(inity  interposes  under  such  circumstances,  it  follows  a  fortiori 
tliat  v;lien  the  mistake  of  law  by  one  i)arty  is  induced,  aided,  or 
accompanied  by  conduct  of  the  other  more  positivel}^  inequitable, 
and  containing-  elements  of  wrongful  intent,  such  as  misrepresenta- 
tiiui,  imposition,  concealment,  undue  influence,  breach  of  confidence 
reposed,  mental  weakness,  or  surprise,  a  court  of  equity  will  lend 
its  aid  and  relieve  from  the  eonsecpiences  of  the  error.  The 
decisions  illustrating  this  general  rule  are  numerous,  and  it  will  be 
found  that  many  of  the  eases  in  which  relief  has  been  granted  con- 
tained, either  openly  or  implicitly,  some  elements  of  such  inequit- 
able conduct.^ 

§  848.  Same.  Between  Parties  in  Relations  of  Trust. — A  parti- 
cular application  of  the  foregoing  rule  requires  a  special  mention. 
Where  an  ignorance  or  misapprehension  of  the  law,  even  Avithout 
any  positive,  incorrect,  or  misleading  words  or  incidental  acts,  oc- 
curs in  a  transaction  concerning  the  trust  between  tAvo  parties 
holding  close  relations  of  trust  and  confidence,  injuriously  affect- 
ing tJie  one  who  reposes  the  confidence,  equity  will,  in  general, 
relieve  the  one  who  has  thus  been  injured.  The  relations  of  trustee 
and  cestui  que  trust,  guardian  and  ward,  and  the  like,  are  examples. 
The  relief  is  here  based  upon  the  close  confidence  reposed, — upon 
the  duty  of  the  trustee  to  act  in  the  most  perfect  good  faith,  to 
consult  the  interests  of  the  beneficiary,  not  to  mislead  him,  and  not 
even  to  suffer  him  to  be  misled,  when  such  a  result  can  be  prevent- 
ed by  reasonable  diligence  and  prudence.^ 

5;  849.  Relief  where  a  Party  is  Mistaken  as  to  his  Own  Existing 
Legal  Rights,  Interests,  or  Relations. — Is  it  possible  to  formulate 
any  general  rule  which  shall  be  a  criterion  for  all  cases  of  relief 
from  mistakes  of  law  pure  and  simple,  and  without  other  incidental 
cii-cumstances,  Avhich  shall  be  sustained  by  judicial  authority,  and 
Avhich  shall  furnish  a  principle  as  guide  for  future  decisions?  I^i 
juy  opinion,  it  is  possible.  It  has  been  shown  that  where  the  general 
law  of  the  land — the  common  jus — is  involved,  a  pure  and  simple 
mistake  in  any  kind  of  transaction  cannot  be  relieved.    Also,  where 

'  (Jee  V.  Spencer,  1  Vera.  32,  2  Scott  568;  Broughton  v.  Hutt,  3  De  Gex  &  J.  501, 
.'5  Keener- 32;  Wheeler  v.  Smith,  9  How.  55,  1  Scott  444;  Titus  v.  Rochester  G. 
ins.  Co.,  97  Ky.  567,  31  S.  W.  127,  53  Am.  St.  Rep.  427,  H.  &  B.  213;  Jordan  v. 
Stevens,  51  Me.  78,  81  Am.  Dee.  556,  H.  &  B.  188,  3  Keener  38;  Green  v.  Morris, 
etc.,  R.  Co.,  12  N.  J.  Eq.  165,  H.  &  B.  193,  3  Keener  25;  Haviland  v.  Willetts,  141 
X.  T.  35,  35  N.  E.  958,  2  Ames  Eq.  .Tur.  273.  3  Keener  144  (an  instructive 
case)  ;  Moreland  v.  Atchison,  19  Tex.  303,  Shep.  155;  Kyh^  v.  Fehley.  SI  Wis.  67, 
51    N.  \\".  257,  29  Am.  St.  Rep.  866,  3  Keener  131. 

'  Hall  V.  Otterson,  52  X.  J.  Eq.  522,  28  Atl.  907,  3  Keener  401  ;  Ludington  v. 
Patten,  111   Wis.  208,  SO  X.  W.  571. 


§  849  EQUITY    JUEISPRUDEKCE.  -L-22 

a  person  correctly  apprehends  his  own  legal  rights,  interests,  and 
relations,  a  simple  mistake  as  to  the  legal  efi'eet  of  a  transaction 
into  which  he  enters,  in  the  absence  of  other  deLmnining  iacidents, 
is  not  ground  for  relief.  There  is,  as  shown  in  a  former  paragraph 
(§841),  a  third  condition.  A  person  may  be  ignorai4  cr  misUken 
as  to  his  own  antecedent  existing  legal  rights,  interests,  duties^  lia- 
bilities, or  other  relations,  wdiile  he  accurately  understujds  the 
legal  scope  of  a  transaction  into  which  he  enters,  and  its  legal 
effect  upon  his  rights  and  liabilities.  It  will  be  found  that  the 
great  majoritj',  if  not  indeed  all,  of  the  well-considered  decisions 
in  which  relief  has  been  extended  to  mistakes  pure  and  simple  fall 
within  this  class;  and  also,  that  whenever  cases  of  this  kind  have 
arisen,  relief  has  almost  always  been  granted,  although  not  always 
on  this  ground.  Courts  have  felt  the  imperative  demands  of  justice, 
and  have  aided  the  mistaken  parties,  although  they  have  often  as- 
signed as  the  reason  for  doing  so  some  inequitable  conduct  of  the 
other  party  which  they  have  inferred  or  assumed.  The  real  reason 
for  this  judicial  tendency  is  obvious,  although  it  has  not  always 
been  assigned.  A  private  legal  right,  title,  estate,  interest,  duty, 
or  liability  is  always  a  very  complex  roncrptiou.  It  necessarily  de- 
pends so  much  upon  conditions  of  fact,  that  it  is  difficult,  if  not  im- 
l^ossible,  to  form  a  distinct  notion  of  a  private  legal  right,  interest, 
or  liability,  separated  from  the  facts  in  which  it  is  involved  and 
upon  wdiich  it  dei)ends.  Mistakes,  therefore,  of  a  person  with  re- 
spect to  his  own  private  legal  rights  and  liabilities  may  be  properly 
regarded, — as  in  great  measure  thej^  really  are, — and  may  be  dealt 
with  as  mistakes  of  fact.  Courts  have  constantly  felt  and  acted 
upon  this  view,  though  not  always  avowedly.  Lord  Westbury 
openly  declares  that  such  misconceptions  are  truly  mistakes  of 
fact.  Some  \evj  instructive  remarks  of  Sir  George  Jessel,  which 
I  have  placed  in  the  foot-note,  will,  with  a  slight  modification  of 
his  language,  apply  to  all  instances  involving  this  kind  of  error  or 
ignorance.^     A  general   rule  permitting  the  jurisdiction   of  equity 

'Eaglesfield  v.  Marquis  of  Londonderry,  L.  R.  4  Ch.  Div.  693.  702,  703.  The 
master  of  rolls  is  speaking  of  a  misrepresentation  of  the  law  affecting  a  person's 
jirivate  rights,  but  his  language,  with  slight  change,  will  apply  to  all  cases 
of  ignorance  or  error  concerning  one's  own  private  legal  interests.  In  my  opin- 
ion, it  suggests  the  true  principle  upon  which  to  rest  the  action  of  the  courts 
in  all  such  instances.  "It  was  put  to  me  that  this  was  a  misrepresentation  of 
law,  and  not  of  fact Was  it  a  misrepresentation  of  law?  A  misrepre- 
sentation of  law  is  this:  when  you  state  the  facts,  and  state  a  conclusion  of 
law,  so  as  to  distinguish  hetween  facts  and  law.  The  man  Avho  knows  the  facts 
is  taken  to  know  the  law;  but  when  you  state  that  as  a  fact  which  no  doubt 
involves,  as  most  facls  do.  a  conclusion  of  law.  that  is  still  a  statement  of  fact, 
and  not  a  statement  of  law.  Suppose  a  man  is  asked  by  a  tradesman  whether 
he  can  give  credit  to  a   lady,  and  the  answer  is,  'You  mav:   she  is  a  single  wo- 


423  MISTAKE.  §  8 19 

to  relieve  from  mistakes  of  the  law  pure  and  simple,  in  all  cases 
belonging  to  this  species,  and  confining  its  operation  to  them,  would 
at  once  reduce  to  clearness,  order,  and  certainty  a  subject  which 
has  hitherto  been  confessedly  uncertain  and  confused.  It  would 
■work  justice,  for  these  kinds  of  errors  stand  upon  a  different  foot- 
ing from  all  others,  and  justice  and  good  conscience  demand  their 
relief;  it  would  conform  to  sound  i^rinciple,  for  these  mistakes  are 
in  part  essentially  errors  of  fact;  and  finally,  it  would  explain  and 
harmonize  many  decisions  of  the  ablest  courts  which  have  hitherto 
seemed  almost  inexplicable  except  by  violent  and  unnatural  as- 
sumptions. I  therefore  venture  to  formulate  the  following  general 
rule  as  being  eminently  just  and  based  on  principle,  and  furnishing 
a  simple  criterion  defining  the  extent  of  the  jurisdiction.  The 
number  of  decisions  which  support  it,  and  which  it  explains,  is  very 
gi'eat.  Wherever  a  person  is  ignorant  or  mistaken  with  respect 
to  his  own  antecedent  and  existing  private  legal  rights,  interests, 
estates,  duties,  liabilities,  or  other  relation,  either  of  property  or 
contract  or  personal  status,  and  enters  into  some  transaction  the 
legal  scope  and  operation  of  which  he  correctly  apprehends  and 
understands,  for  the  purpose  of  affecting  such  assumed  rights,  in- 
terests, or  relations,  or  of  carrying  out  such  assumed  duties  or  lia- 

iiian  of  large  fortune.'  It  turns  out  that  the  man  who  gave  tliat  answer  knew 
that  the  lady  had  gone  through  the  ceremony  of  marriage  with  a  man  who  was 
believed  to  be  a  married  man,  and  that  she  had  been  advised  that  the  mar- 
riage ceremony  was  null  and  void,  though  it  had  not  been  declared  so  by  any 
court,  and  it  afterwards  turned  out  they  were  all  mistaken — that  the  first  mar- 
riage of  the  man  was  void,  so  that  the  lady  was  married.  He  does  not  tell  the 
tradesman  all  these  facts,  but  states  that  she  is  single.  That  is  a  statement 
of  fact.  If  he  had  told  him  the  whole  story,  and  all  the  facts,  and  said,  'Now. 
you  see  the  lady  is  single,'  that  would  have  been  a  misrepresentation  of  law. 
But  the  single  fact  he  states — that  the  lady  is  immarried — is  a  statement  of 
fact,  neither  more  nor  less ;  and  it  is  not  the  less  a  statement  of  fact  that  in 
order  to  arrive  at  it  yovi  must  know  more  or  less  of  the  law.  There  is  not  a 
single  fact  connected  with  personal  status  that  does  not,  more  or  less,  involve  a 
question  of  law.  If  you  state  that  a  man  is  the  eldest  son  of  a  marriage,  you 
state  a  question  of  law,  because  you  must  know  that  there  has  been  a  valid 
marriage,  and  that  that  man  was  the  first-born  son  after  the  marriage,  or,  in 
some  countries,  before.  Therefore,  to  say  it  is  not  a  representation  of  fact 
seems  to  arise  from  a  confusion  of  ideas.  It  is  not  the  less  a  fact  because  that 
fact  involves  some  knowledge  or  relation  of  law.  There  is  hardly  any  fact  which 
does  not  involve  it.  If  you  say  that  a  man  is  in  possession  of  an  estate  of  ten 
thousand  pounds  a  year,  the  notion  of  possession  is  a  legal  notion,  and  involves 
knowledge  of  law;  nor  can  any  other  fact  in  connection  with  property  be  stated 
"which  does  not  involve  such  knowledce  of  law.  To  state  that  a  man  is  entitled 
to  ten  thousand  pounds  consols  involves  all  sorts  of  law."  The  decision  of  the 
master  of  rolls  in  this  case  was  reversed  by  the  court  of  appeal,  but  only  upnr. 
a  different  view  of  the  evidence  from  that  which  he  took,  and  without  in  Jne 
least   affecting  the   correctness  of  the  observations    which    I    have   quoted. 


§  850  EQUITY    JURISrRUDEXCE,  424 

biJities,  equity  will  grant  its  relief,  defensive  or  affirmative,  treat- 
ing the  mistake  as  analogous  to,  if  not  identical  with,  a  mistake  of 
fact.-  It  should  be  carefully  observed  that  this  rule  has  no  ap- 
plication to  cases  of  compromise,  where  doubts  have  arisen  as  to 
the  rights  of  parties,  and  they  have  intentionally  entered  into  an 
arrangement  for  the  purpose  of  compromising  and  settling  those 
doubts.  Such  compromises,  whether  involving  mistakes  of  law  or 
of  fact,  are  governed  by  special  considerations. 

§  850.  Compromises  and  Voluntary  Settlements  Made  upon  a 
Mistake  as  to  Leg-al  Rights. — Compromises,  where  doubts  with  re- 
spect to  individual  rights,  especially  among  members  of  the  same 
lamil}^  have  arisen,  and  where  all  the  parties,  instead  of  ascertain- 
ing and  enforcing  their  mutual  rights  and  obligations  which  are 
yet  undetermined  and  uncertain,  intentionall.y  put  an  end  to  all 
controversy  by  a  voluntary  transaction  in  the  way  of  a  compromise, 
are  highly  favored  by  courts  of  equity.  They  will  not  be  disturbed 
for  any  ordinary  mistake,  either  of  law  or  of  fact,  in  the  absence 
of  conduct  otherwise  inequitable,  since  their  very  object  is  to  settle 
all  such  possible  errors  without  a  judicial  controversy.  There  are, 
indeed,  dicta  to  the  effect  that  a  party  will  be  relieved  from  a  com- 
promise in  which  he  has  surrendered  property  or  other  rights  un- 
questionably his  own,  through  a  misconception  of  a  clear  legal  rule, 
or  an   erroneous  supposition  that  a   legal    duty  rested  upon   him, 

-  It  is  not  claimed  that  all  these  cases  were  avowedly  decided  upon  the 
above  rule,  although  many  of  them  seem  to  distinctly  recognize  it.  In  all  of 
them  the  error  was  of  the  kind  described  in  the  text,  and  the  rule  will  furnish 
a  simple  reason  why  relief  was  granted,  which  the  judges  sometimes  failed  to 
<lo:  Cooper  v.  Phibbs,  L.  R.  2  H.  L.  140.  2  Ames  Eq.  Jur.  266,  3  Keener  43, 
2  Scott  551),  8hep.  148  (A,  being  ignorant  that  certain  property  belonged  to 
himself,  and  supposing  that  it  belonged  to  B,  agreed  to  take  a  lease  of  it  from 
B  at  a  certain  rent,  there  was  no  fraud,  no  unfair  conduct,  all  the  parties 
equally  knew  the  facts.  The  house  of  lords  set  aside  the  agreement  on  account 
of  tile  mistake.  A  majority  of  the  judges  called  it  a  mistake  of  fact.  Lord 
Westbury  boldly  acknowledged  it  to  be  what  is  ordinarily  called  a  mistake  of 
law,  but  held  that  it  was  really  a  mistake  of  fact,  and  to  be  dealt  with  as 
such.  The  mistake  was  clearly  one  to  which  the  term  "mistake  of  law"  has 
ordinarily  been  applied;  but  it  as  clearly  possessed  the  elements  of  a  mistake 
of  fact.  The  decision  is  a  direct  authority  in  support  of  the  text)  :  Lansdo\\-ne 
V.  Lansdowne,  2  Jac.  &  W.  205,  Mos.  364,  3  Keener  1,  2  Scott  540;  Pusey  v. 
Desbouvrie,  3  P.  Wms.  315,  320,  3  Keener  2,  1  Scott  430;  Bingham  v.  Bing- 
ham, 1  Ves.  Sr.  126,  2  Ames  Eq.  Jur.  264,  3  Keener  5,  2  Scott  543;  Broughton 
V.  Hutt,  3  De  Gex  &  J.  501,  504,  3  Keener  32;  In  re  Saxon  L.  Ins.  Co.,  1  De.Gex, 
J.  &  S.  29,  2  Johns.  &  H.  408,  2  Ames  Eq.  Jur.  265;  Blakeman  v.  Blakeman.  39 
Conn.  320,  3  Keener  72,  2  Scott  569  (striking  illustration)  ;  Jeakins  v.  Frazier, 
G4  Kan.  267,  67  Pac.  864,  2  Ames  Kq.  Jur.  26S;  Renard  v.  Clink.  91  Mich.  1, 
51  N.  W.  692,  30  Am.  St.  Rep.  458,  H.  &  B.  212;  (ierdine  v.  Menage.  41  Minn. 
417,  43  N.  W.  91,  2  Ames  Eq.  Jur.  286;  Goff  v.  Gott,  5  Sneed  (Tenn.)  562,  2 
Ames  Kq.  Jur.  281. 


4<Jo  MISTAKE.  §  851 

whereas  plainly  no  such  duty  existed:  but  the  decisions  show  that 
these  dicta  must  be  confined  to  circumstances  which  render  the 
compromise  itself  a  virtual  surprise,  or  to  cases  in  which  it  was  in- 
duced by  positive  ineciuitable  conduct  of  the  other  parties.^  Volun- 
tary settlements  are  so  favored  that  if  a  doubt  or  dispute  exists 
between  parties  with  respect  to  their  rights,  and  all  have  the  same 
knowledge,  or  means  of  obtaining  knowledge,  concerning  the  cir- 
cumstances involving  these  rights,  and  there  is  no  fraud,  misrep- 
resentation, concealment,  or  other  misleading  incident,  a  comprom- 
ise into  which  they  thus  voluntarily  enter  must  stand  and  be  en- 
forced, although  the  final  issue  may  be  different  from  that  which 
was  anticipated,  and  although  the  disposition  made  by  the  parties 
in  their  agreement  may  not  be  that  which  the  court  would  have 
decreed  had  the  controversy  been  brought  before  it  for  decision. - 
Of  course,  there  must  not  only  be  no  representation,  imposition. 
or  concealment;  there  must  also  be  a  full  disclosure  of  all  material 
facts  within  the  knowledge  of  the  parties,  whether  demanded  or 
not  by  the  others.  In  the  v>^ords  of  a  distinguished  judge:  "There 
must  not  only  be  good  faith  and  honest  intention,  but  full  dis- 
closure, and  without  full  disclosure,  honest  intention  is  not  suffi- 
cient." If  these  requisites  of  good  faith  exist,  it  is  not  necessary 
that  the  dispute  should  be  concerning  a  question  really  doubtful, 
if  the  parties  bona  fide  consider  it  so;  it  is  enough  that  there  is  a 
fjuestion  between  them  to  be  settled  by  their  compromise.^  The 
foregoing  rules  apply  to  all  cases  of  compromise,  whether  the  doubt- 
ful cpiestions  to  be  settled  relate  to  matters  of  law  or  of  fact.^ 

§  851.  Payments  of  Money  under  a  Mistake  of  Law. — The  gen- 
eral rule  stated  in  the  paragraph  before  the  last,  concerning  mis- 
takes as  to  one's  own  private  legal  rights  and  duties,  is  also  subject 
to  another  important  limitation.  It  is  settled  at  law,  and  the  rule 
has  been  followed  in  equity,  that  money  paid  under  a  mistake  of 
law  with  respect  to  the  liability  to  make  payment,  but  with  full 
knowledge,  or  with  means  of  obtaining  knowledge,  of  all  the  cii'- 
cumstances,  cannot  be  recovered  back.^     There  is  an  exception,  as 

"See  Binorham  v.  Bineliam.  1  Ve>;.  Sr.  126.  2  Ame.s  Eq.  Jur.  264,  3  Keener  5, 
2  Scott  ,54.3;  Naylor  v.  Winch,  1  Sim.  &  St.  555.  2  Scott  576;  Titus  v.  Rochester 
Ct.  Ins.  Co.,  97  Ky.  567,  31  8.  W.  127,  53  Am.  St.  Rep.  427,  H.  &  B.  213. 

=  Ex  parte  Lucy,  4  De  Gex,  M.  &  G.  356,  3  Keener  14;  Hall  v.  Wheeler,  37 
Minn.  522,  35  N.  W.  377,  2  Ames  Eq.  .Jur.  2SS.  3  Keener  99;  Gormly  v.  Gormly. 
1.30   Pa.  St.  467.   18   Atl.  727,  3  Keener  184. 

•■•Ex  parte  Lucy.  4  De  Gex,  ISL  &  G.  356.  3  Keener  14. 

*  See    post.    §  855. 

'Rogers  v.  Ingiiam.  L.  R.  3  Ch.  Div.  351,  3  Keener  75,  Sh.  157,  2  Scott  572: 
Krkens  v.  Nicolin.  39  Minn.  461.  40  N.  W.  567,  H.  &  B.  216,  Sh.  152;  but  see 
Mansfield  v.  Lynch,  59  Conn.  320,  22  Atl.  313,  12  L.  R.  A.  285.    If  the  doctrine 


§  853  EQUITY    JLRISPRUDKXCE.  426 

in  the  case  of  compromises,  when  the  erroneous  payment  is  induced 
or  accompanied  b}^  a  violation  of  confidence  reposed,  lack  of  full 
disclosure,  misrepresentation  as  to  liability,  or  other  similar  inequit- 
able conduct. - 

!^  852.  Second.  Mistakes  of  Facts.— The  general  doctrine  is 
firmly  settled  as  one  of  the  elementary  principles  of  the  equitable 
jurisdiction,  that  a  court  of  equity  will  grant  its  affirmative  or 
defensive  relief,  as  may  be  required  by  the  circumstances,  from  the 
consequences  of  any  mistake  of  fact  which  is  a  material  element 
of  the  transaction,  and  which  is  not  the  result  of  the  mistaken 
party's  own  violation  of  some  legal  duty,  provided  that  no  adequate 
remedy  can  be  had  at  law.  It  has  been  said,  "No  person  can  be 
I)resumed  to  be  acquainted  with  all  matters  of  fact  connected  with 
a  transaction  in  which  he  engages."  This  general  doctrine  is  ap- 
plied in  a  great  variety  of  forms  and  under  a  great  variety  of  cir- 
cumstances. It  presents  but  few  theoretical  difficulties;  its  practical 
difficulties  arise  from  its  application  to  particular  instances  of  re- 
lief, and  this  application  must  be  largely  controlled  by  the  circum- 
stances of  each  case. 

i;  853.  How  Mistakes  of  Fact  may  Occur. — All  mistakes  of  fact 
in  agreements  executed  or  executory,  express  or  implied,  must  be 
concerning  either  the  subject-matter  or  the  terms.  In  the  first  case, 
the  terms  are  stated  according  to  the  intent  of  both  the  parties,  but 
there  is  an  error  of  one  or  both  in  respect  of  the  thing  to  which 
these  terms  apply, — its  identity,  situation,  boundaries,  title,  amount,, 
value,  and  the  like.  Such  a  mistake  may  relate  to  any  kind  of  sub- 
ject-matter, and  may  occur  in  a  verbal  as  well  as  in  a  written  agree- 
ment. In  the  second  case,  the  mistake  may  arise  after  the  parties 
have  verbally  concluded  their  agreement,  and  may  occur  in  reduc- 
ing that  agreement  to  writing,  by  erroneously  adding,  omitting  or 
altering  some  term  -^  or  it  may  arise  in  the  very  process  of  making 
the  agreement,  during  the  negotiation  itself,  one  or  both  the  parties 
misconceiving,  misunderstanding,  or  even  being  entirely  ignorant  of 
some  term  or  provision ;  so  that,  although  they  appear  to  have  made 
an  agreement,  yet  in  fact  their  minds  never  met  upon  the  same  mat- 
formulated  in  §  849  be  correct,  then  it  seems  that  this  particular  rule  for- 
bidding the  recover^'  back  of  money  paid  under  a  mistake  of  law  is  based  upon 
an  erroneous  conception  of  the  principle  which  should  goveni  such  cases,  and 
the  opinions  of  those  jurists  which  uphold  the  ricrht  of  recoveiy  appear  to  be 
correct  in  principle.  This  rule  itself  is  an  illustration  of  the  disinclination  of 
equity  courts  to  depart  from  a  doctrine,  settled  at  law,  when  the  rights  and  the 
remedies  are  the  same  in  botli   jurisdictions: 

"  See  Rogers  v.   Ingham,  supra,  per  James.  L.  .T. 

'See  Citizens'  Nat.  Bank  v.  Judy,  140  Ind.  322,  4.3  X.  E.  259,  3  Keener  433 j 
Miles  V.   Miles    (Miss.),  37   South.   112. 


^'^i  MISTAKE.  ^  854 

lers.-  While  this  latter  species  of  error  is  not  infrequent,  it  gen- 
erally^ consists  in  a  mistake  or  ignorance  as  to  the  legal  ejfeci  of  the 
provision,  rather  than  as  to  the  language  in  which  the  provision  is 
expressed.  The  same  description  will  plainly  apply  to  all  forms  of 
mistakes  of  fact  in  transactions  which  are  not  agreements. 

5;  854.  In  What  Mistakes  of  Fact  may  Consist. — It  would  be 
impossible,  within  any  reasonable  limits,  to  enumerate  the  various 
forms  in  which  mistakes  of  fact  may  appear.  .  .  .  Tlie  law  of  a 
foreign  country  or  of  another  state  is  always  regarded  as  a  "fact," 
M-ithin  the  meaning  of  the  term  as  used  in  the  foregoing  descrip- 
tion ;  an  error  or  ignorance  concerning  such  law  is  therefore  a  mis- 
take of  fact.^  It  necessarily  follows  from  this  description  that 
where  an  act  is  done  intentionally  and  with  knowledge,  the  doing 
the  act  cannot  be  treated  as  a  mistake.  Thus  if  parties  knowingly 
and  intentionally  add  to  or  omit  from  their  Avritten  agreement  a 
certain  provision,  such  adding  to  or  omission  cannot  coiistitute  a 
mistake,  so  as  to  be  a  ground  for  relief. ^ 

-  Crookston  Imp.  Co.  v.  Marshall,  57  Minn.  333,  47  Am.  St.  Rep.  G12,  .59 
N.    VV.   294. 

'Haven  v.  Foster,  9  Pick.  Ill,  112;  19  Am.  Dee.  353;  Patterson  v.  Bloomer, 
35  Conn.  57,  95  Am.  Dec.  218,  2  Keener  956. 

^  ITie  exact  import  of  This  rule  should  not  be  misapprehended.  The  parties 
may  be  in  error  as  to  the  legal  effect  of  the  addition  or  omission;  this 
would  be  a  mistake  of  law  which,  as  has  been  shown,  would  not  be  relieved. 
They  might  also  be  mistaken  as  to  the  subject-matter  of  the  provision  added  or 
omitted,  or  possibly  as  to  its  language,  and  such  an  error  might  be  a  mistake 
of  fact.  The  rule  of  the  text  simply  declares  that  when  an  act  is  done  inten- 
tionally and  knowingly,  the  very  doing  itself  cannot  be  treated  as  a  mistake 
entitled  to  relief;  the  elements  of  knowledge  and  intention  contradict  the  es- 
sential conception  of  mistake;  See  Lord  Imham  v.  Child,  1  Brown  Ch.  92,  2 
Scott  256. 

\\'here  a  verbal  stipulation  is  made  at  the  same  time  as  the  written  contract, 
and  is  omitted  intentionally  on  the  faith  of  an  assurance  that  it  shall  be  as 
binding  as  though  incorporated  into  the  writing,  the  rule  as  generally  settled 
does  not  permit  such  provision  to  be  proved  and  enforced.  It  is  said  that, 
there  being  no  fraud  or  mistake,  to  allow  the  verbal  term  to  be  proved  by 
parol  evidence,  and  the  written  agreement  to  be  thereby  varied,  would  be  a 
violation  of  the  statute  of  frauds,  and  would  introduce  all  the  evils  which 
the  statute  was  designed  to  prevent.  The  relief  given  in  cases  of  fraud  and  mis- 
take stands  upon  different  grounds;  although  appearing  to  conflict  with  the 
statute,  it  is  really  carrying  out  the  ultimate  purposes  of  the  legislature  by 
preventing  injustice.  Xo  such  grounds,  it  is  said,  exist  where  parties  have 
intentionally  omitted  provisions  from  their  written  agreements.  See  Broughton 
V.  Coffer,  18  Graft.  184.  Hall  v.  First  Nat.  Bank,  173  Mass.  16,  53  N.  E.  154.  73 
Am.  St.  Rep.  255.  44  L.  R.  A.  319.  There  are  cases,  however,  which  seem  to  reject 
this  conclusion,  and  allow  the  verbal  stipulation  to  be  proved  and  enforced,  and 
the  Avritten  agreement  to  be  reformed,  on  the  ground  that  the  refusal  to  abide 
by  the  whfvle  agreement,  and  the  altempt  to  enforce  that  portion  only  which  is 
written,  constitute  a   fraud  which  efpiity  ought  to  prohibit;   See  Coger's  Ex'rs  v. 


§  8r)(;  EtiUlTY    JUKISPI^IUDEXCK.  4'38 

§  855.  Compromises  and  Speculative  Contracts. — When  parties 
have  entered  into  a  contract  or  arrangement  based  upon  uncertain 
or  contingent  events,  purposely  as  a  compromise  of  doubtful  claims 
arising  from  them,  and  where  parties  have  knowingly  entered  into 
a  speculative  contract  or  transaction. — one  in  which  they  inten- 
ti(;nally  speculated  as  to  the  result, — and  there  is  in  either  case  an 
absence  of  bad  faith,  violation  of  confidence,  misrepresentation, 
c()ncealment.  and  other  inequitable  conduct  mentioned  in  a  former 
I)aragraph,  if  the  facts  upon  which  such  agreement  or  transaction 
was  founded,  or  the  event  of  the  agreement  itself,  turn  out  very 
different  from  what  was  expected  or  anticipated,  this  error,  mis- 
c;ilcnlation,  or  disappointment,  although  relating  to  matters  of  fact, 
and  not  of  law,  is  not  such  a  mistake,  within  the  meaning  of  the 
equitable  doctrine,  as  entitles  the  disappointed  party  to  any  relief 
eitlier  l)y  Avay  of  canceling  the  contract  and  rescinding  the  trans- 
action, or  of  defense  to  a  suit  brought  for  its  enforcement.  In  such 
classes  of  agreements  and  transactions,  the  parties  are  supposed  to 
calcnlate  the  chances,  and  they  certaiidy  assume  the  risks,  where 
there  is  no  element  of  bad  faith,  breach  of  confidence,  misrep- 
resentation, culpable  concealment,  or  other  like  conduct  amounting 
to  actual  or  constructive  fraud. ^ 

;;  856.  Requisites  to  Relief — Mistake  must  be  Material  and  Free 
from  Culpable  Negligence. — There  are  two  requisites  essential  to 
the  exercise  of  the  e(iuitable  jurisdiction  in  giving  any  relief  de- 
fensive or  affirmative.  The  fact  concerning  which  the  mistake  is 
made  nuist  be  material  to  the  transaction,  affecting  its  substance, 
{'nd  not  merely  its  incidents;  and  the  mistake  itself  must  be  so  im- 
portant that  it  determines  the  conduct  of  the  mistaken  party  or 
parties.  If  a  mistake  is  made  by  one  or  both  parties  in  reference 
to  some  fact  which,  though  connected  with  the  transaction,  is  mere- 
ly incidental,  and  not  a  part  of  the  very  subject-matter,  or  essential 
to  any  of  its  terms,  or  if  the  complaining  party  fails  to  show  that 
his  conduct  was  in  reality  determined  by  it.  in  either  case  the 
mistake  will  not  be  ground  for  any  relief  affirmative  or  defensive.' 

I\Ic(;('c.  2  Bibb,  .321 ;  ^  Am.  Dec.  GIO.  Whether  aOinnative  relief  be  peniiitted 
or  not,  the  omitted  verbal  portion  of  the  entire  agreement  may  be  set  up  by 
way  of  defense  in  equity,  when  an  attempt  is  made  to  enforce  the  written  part 
alone:  Jervis  v.  Berridge,  L,  R.  8  Ch.  S.jl  (a  very  important  case)  ;  and  see 
IMnrray  v.  Dake,  46  Cal.  644. 

'  Stapleton  v.  Stapleton,  1  Atk.  2.  2  Lead.  Cas.  Eq..  4th  Am.  ed.  1070:  Baxen- 
dale  V.  Scale.  10  Beav.  601.  2  Keener  043:  Cliicaiio  &  X.  W.  R.  Co.  v.  Wilcox. 
(C.  V.  A.)  110  Fed.  013  (full  and  able  discussion).  As  to  requisite  of  good 
faith,  see  Anthony  v.  Boyd.  1.'^  B.  T.  495,  8  All.  701.  10  All.  0.17. 

^Dambmann  v.  Sciiulting.  "n  X.  Y.  5.5,  03.  3  Keener  202.  IT.  &  B.  227:  Sim- 
mons v.  Palmer.  03  \'a.  380.  25  S.  E.  6.  3  Keener  303;  Kowalke  v.  Milwaukee  E. 


429  Mis'JAKE.  §  850 

As  a  second  retiuisite,  it  has  somelinies  been  said  in  very  general 
tt'inis  that  a  mistake  residting  from  the  complaining  j)arty's  own 
negligence  will  never  be  relieved.  This  proposition  is  not  sustained 
by  the  authorities.  It  would  be  more  accurffte  to  say  that  wliei'c 
the  mistake  is  wholly  caused  by  the  want  of  that  care  and  diligenci' 
in  the  transaction  wdiich  should  be  used  by  every  person  oi:'  reason- 
able prudence,  and  the  absence  of  which  would  be  a  violation  of 
legal  duty,  a  court  of  equity  will  not  interpose  its  relief;  but  even 
with  this  more  guarded  mode  of  statement,  each  instance  of  negli- 
gence must  depend  to  a  great  extent  upon  its  own  eircumstances.- 
It  is  not  every  negligence  that  will  stay  the  hand  of  the  court. 
The  conclusion  from  the  best  authorities  seems  to  be.  that  the 
neglect  must  amount  to  the  violation  of  a  positive  legal  duty.  The 
highest  possible  care  is  not  demanded.  Even  a  clearh^ 
established  negligence  may  not  of  itself  be  a  sufficient 
ground  for  refusing  relief,  if  it  appears  that  the  othei" 
party  has  not  been  prejudiced  thereby.^  In  addition  to  the  two 
foregoing  requisites,  it  has  been  said  that  ecpiity  would  nevei'  givt? 
any  relief  from  a  mistake,  if  the  party  could  by  reasonable  dili- 
gence have  ascertained  the  real  facts;  nor  where  the  means  of 
information  are  open  to  both  parties  and  no  confidence  is  reposed ; 
nor  unless  the  other  party  was  under  some  obligation  to  disclose 
the  facts  known  to  himself,  and  concealed  them.  A  moment's  re- 
flection will  clearly  show  that  these  rules  cannot  possibly  apply  to 
all  instances  of  mistake,  and  furnish  the  pre-reqnisites  for  all  species 
of  relief.*  Theii'  operation  is,  indeed,  quite  narroAV;  it  is  confined 
to  the  single  relief  of  cancellation,  and  even  then  it  is  restricted  to 
certain  special  kinds  of  agreements.^ 

R.  &  L.  Co.,  103  \^is.  472,  79  X.  W.  762,  74  Am.  St.  Eep.  877,  2  Scott  603  (pood 
discussion) . 

-Western  R.  R.  v.  Babcock,  6  Met.  346,  2  Keener  937:  Dinian  v.  riovidence 
R.  R.  5  R.  1.  130,  3  Keener  2.'>6;  Penny  v.  ]\Iartin,  4  Johns.  Ch.  .)66.  1  Scott 
454;  Seeley  v.  Bacon  (X.  J.  Eq.),  34  Atl.  139,  3  Keener  139.. Executing  an  instru- 
ment \vithout  reading  it;  negligence  held  fatal,  Kennerty  v.  Phosphate  Co.,  21  S. 
C.  226,  53  Am.  Rep.  669;  held  not  fatal;  Albany  City  Sav.  Inst.  v.  Burdick.  87 
X.  Y.  39,  3  Keener  378:  Palmer  v.  Hartford  Ins.  Co.,  54  Conn.  488.  9  Atl.  248, 
3  Keener  317;  Hitchens  v.  Pettingill,  58  X.  H.  3,  2  Ames  Eq.  Jur.  307,  2  Scott 
(;27,  3  Keener  1145.  Carelessness  excused  by  illiteracy:  Kinney  v.  Ensmcngcr.  87 
Ala.  340,  6  South.  72.  2  Scott  633. 

■•^  Kinney  v.  Ensmenger,  87  Ala.  340.  6  South.  72.  2  Scott   633    (quoting  tcxIK 

M\elly  V.  Solari,  9  :Meps.  &  \V.  54:  PoAvell  v.  Heisler.  16  Or.  412.  19  Pac 
lO't  ((]n()<iiig  text).  Ihe  utter  impossibility  of  applying  such  recpiisites  in 
all  instances  of  a  common  mistake  by  both  the  parties,  and  in  granting  the 
most  important  remedy  of  reformation,  is  evident:  there  is  a  contradiction  in 
terms  between  these  requirements  and  the  very  conception  of  a  conunon  mis- 
take. 

''Viz.  to  those  described   in   !?  855. 


§  859  EQUITY    JITHSPKUDEXCE.  43C 

^  858.  III.  Parol  Evidence  in  Cases  of  Mistake,  Fraud,  or  Sur- 
jjrise. — It  is  an  elementary  doctrine  that  parol  evidence  is  not,  in 
general,  admissible  between  the  parties  to  vary  a  written  instru- 
ment, whether  the  same  has  been  voluntarily  adopted,  or  made  in 
pursuance  of  a  legal  necessity.  It  is  equally  well  settled  that  mis- 
take, fraud,  surprise,  and  accident  furnish  exceptions  to  this  other- 
wise universal  doctrine.  Parol  evidence  may,  in  proper  modes  and 
within  proper  limits,  be  admitted  to  vary  written  instruments,  upon 
the  ground  of  mistake,  fraud,  surprise,  and  accidsiit.  This  excep- 
tion rests  upon  the  highest  motives  of  policy  and  expediency;  for 
otherwise  an  injured  party  would  generally  be  without  remedy. 
Even  the  statute  of  frauds  cannot,  by  shutting  out  parol  evidence, 
be  converted  into  an  instrument  of  fraud  or  wrong.* 

§  859.  Parol  Evidence  in  Suits  for  a  Reformation  or  Cancella- 
tion.— The  foregoing  exception  embraces  all  suits  brought  express- 
ly upon  the  mistake  for  the  purpose  of  obtaining  affirmative  relief 
from  its  conseciuences.  It  is  therefore  settled  that  in  the  suits, 
V'henever  permitted,  to  reform  a  Avritten  instrument  on  the  ground 
of  a  mutual  mistake,  parol  evidence  is  always  admissible  to  estab- 
lish the  fact  of  the  mistake,  and  in  what  it  consisted;  and  to  show 
how  the  writing  should  be  corrected  in  order  to  conform  to  the 
agreement  which  the  parties  actually  made.  Although  in  such 
cases  there  is  often  some  ancillary  writing  to  aid  the  court,  such  as 
a  rough  draught  of  the  agreement,  written  instructions,  and  the 
like,  yet,  in  the  absence  of  these  helps,  the  court  may  grant  relief 
upon  the  strength  of  the  verbal  evidence  alone.  The  same  is  true 
in  suits  brought  to  rescind  and  cancel  a  written  agreement  on  the 
ground  of  a  mistake  by  one  of  the  parties,  whereby  their  minds 
were  prevented  from  meeting  upon  the  same  matter,  and  no  agree- 
ment was  reallj^  made ;  and  a  fortiori  when  the  ground  of  the  relief 
is  fraud.  Parol  evidence  must  be  admitted  in  these  classes  of  cases, 
in  order  to  a  due  administration  of  justice.  If  the  general  doctrine 
of  the  law  or  the  statute  of  frauds  was  regarded  as  closing  the  door 
against  such  evidence,  the  injured  party  would  be  without  any 
f-ertain  remedy,  and  fraud  and  injustice  would  be  successful-.*  The 
jiuthorities  all  require  that  the  parol  evidence  of  the  mistake  and 

MValden  v.  Skinner,  101  U.  S.  577,  H.  &  B.  238;  Patterson  v.  Bloomer,  ,35 
Conn.  57,  95  Am.  Dec.  208,  2  Keener  956.  As  to  surprise,  see  Twining  v. 
JMorrice,  2  Brown  Vh.  320.  1  Ames  Eq.  Jur.  410:  Mason  v.  Armitajje.  13  Ves. 
25,  1  Ames  Eq.  .Inr.  374.  2  Keener  930.  2  Soott  270.  That  the  statute  of  frauds 
can  not  be  converted  info  an  instrument  of  fraud,  see.  per  Lord  Westbnry, 
in  McCormick  v.  Grogan.  E.  B.  4  H.  L.  82.  07.  1  Scott  241.  quoted  ante,  in 
§431. 

^Barrow  v.  P.arrow.  18  Beav.  529.  2  Ames  Eq.  .Tur.  199:  Carrard  v.  Frankel, 
30  Beav.  445,  451,  3  Keener  261j  and  see  cases  in  next  note. 


431  MISTAKE.  §  8G0 

of  the  alleged  modification  must  be  most  clear  and  convincing, — in 
the  language  of  some  judges,  "the  strongest  possible," — or  else 
the  mistake  must  be  admitted  by  the  opposite  party;  the  resulting 
proof  must  be  established  beyond  a  reasonable  doubt.  Courts  of 
equity  do  not  grant  the  high  remedy  of  reformation  upon  a  proba- 
bility, nor  even  upon  a  mere  preponderance  of  evidence,  but  only 
iil)on  a  certainty  of  the  error.- 

§  860.  Parol  Evidence  in  Defense  in  Suits  for  a  Specific  Perform- 
ance.— The  second  class  of  cases  embraces  those  in  which  parol  evi- 
dence of  mistake  is  offered  defensively.  The  equitable  remedy  of 
the  specific  enforcement  of  contracts,  even  when  they  are  valid 
and  binding  at  law,  is  not  a  matter  of  course ;  it  is  so  complete!} 
governed  by  equitable  considerations  that  it  is  sometimes,  though 
improperly,  called  discretionary;  it  is  never  granted  unless  it  is 
entirely  in  accordance  with  equity  and  good  conscience.  It  is 
therefore  a  well-settled  rule,  that  in  suits  for  the  specific  enforce- 
ment of  agreements,  even  when  written,  the  defendant  may  by 
means  of  parol  evidence  show  that,  through  the  mistake  of  both 
or  either  of  the  parties,  the  writing  does  not  express  the  real  agree- 
ment, or  that  the  agreement  itself  was  entered  into  through  a 
mistake  as  to  its  subject-matter  or  as  to  its  terms.  In  short,  a 
c(-urt  of  equity  will  not  grant  its  affirmative  remedy  to  compel  the 
defendant  to  perform  a  contract  which  he  did  not  intend  to  make. 
or  which  he  would  not  have  entered  into  had  its  true  effect  been 
understood.  What  is  thus  true  of  mistake  is  equally  true  of  a 
defense  based  upon  fraud  or  surprise.^  Wherever  the  defendant's 
mistake  was,  either  intentionally  or  not,  induced,  or  made  probable 
or  even  possible,  by  the  acts  or  omissions  of  the  plaintiff',  then,  on 
the  plainest  principles  of  justice,  such  error  prevents  a  specific  en- 
forcement of  the  agreement.-  Such  co-operation  by  the  plaintiff, 
however,  is  not  at  all  essential.     A  mistake  which  is  entirely  the 

-  Garrard  v.  Frankel,  30  Beav.  445.  3  Keener  201 ;  Stockbridge  Iron  Co.  v. 
Hudson  R.  Iron  Co.,  102  Mass.  45,  3  Keener  54,  397;  Canedy  v.  Jlarey,  13  Gray 
373,  2  Ames  Eq.  Jur.  256,  3  Keener  35,  2  Scott  552;  Hatliaway  v.  Brady, 
23  Cal.  122,  2  Ames  Eq.Jur.  299;  Sable  v.  Maloney,  48  Wis.  33],  2  Ames  Eq. 
Jur.  310.  Many  dicta  are  collected  in  Southard  v.  Curley,  134  N.  Y.  148,  31 
X.  E.  330,  30  Am.  St.  Rep.  642,  16  L.  R.  A.  561,  3  Keener  460,  2  Scott  640, 
which   rejects  the  "beyond  a  reasonable  doubt"  test. 

'.Toynes  v.  Statham,  3  Atk.  388,  2  Scott  253;  Manser  v.  Back,  6  Hare  443, 
2  Scott  274;  Falcke  v.  Gray,  4  Drew.  651,  H.  &  B.  655;  Webster  v,  Cecil,  30  Beav. 
62,  1  Ames  Eq.  Jur.  382,  2  Keener  954,  2  Scott  279;  Mansfield  v.  Shemiaii, 
81    Me.  365.  17  Atl.  300,  1  Ames  Eq.  Jur.  385,  2  Keener  995,  2  Scott  2S1. 

-Mason  V.  Armitarre.  13  Ves.  25.  1  Ames  Eq.  Jur.  374,  2  Keener  930.  2 
Scott  270:  Denny  v.  Hancock.  L.  R.  6  Ch.  App.  1,  2  Keener  969;  Bascoinbe 
V.  Beckwith.  L.  R.  8  Eq.  100,  2  Keener  963;  Matthews  v.  Terwilliger,  3  Barb, 
i>0    (surprise). 


§  860  EQUITY    jrKlSPRUDENCE.  432 

defendant's  own,  or  that  of  his  aaent.  and  for  which  the  plaintiff 
is  not  directly  or  indirectly  responsible,  may  be  proved  in  defense, 
j'.ud  may  defeat  a  specific  performance.  This  is  indeed  the  very 
essence  of  the  equitable  theory  concerning-  the  nature  and  effect  of 
mistake.-"  A  mistake  thus  set  up  by  the  defendant  is  not  merely 
a  ground  of  defense,  of  dismissing  the  suit.  If  the  plaintiff  alleges 
a  written  agreement,  and  demands  its  specific  performance,  and 
the  defendant  sets  up  in  his  answer  a  verbal  provision  or  stipuhi- 
tion,  or  variation  omitted  by  mistake,  surprise,  or  fraud,  and  sub- 
mits to  an  enforcement  of  the  contract  as  thus  varied,  and  clearly 
proves  by  his  parol  evidence  that  the  written  contract  modified  or 
varied  in  the  manner  alleged  by  him  constitutes  the  original  and 
li'ue  agreement  made  by  the  partiec,  the  court  may  not  only  reject 
the  plaintiff' 's  version,  but  may  adopt  that  of  the  defendant,  and 
may  decree  a  specific  performance  of  the  agreement  with  the  parol 
variation  upon  the  mere  allegations  of  his  answer,  without  requir- 
ing a  cross-bill.  The  court  will  either  decree  a  specific  execution 
of  the  contract  thus  varied  by  the  defendant,  or  else,  if  the  plaintiff' 
refuses  to  accept  such  relief,  will  dismiss  the  suit.*  Under  the  old 
chancery  practice,  the  action  of  the  court  in  such  cases  seemed  to 
have  been  discretionary.  Under  the  reformed  procedure,  which 
permits  affirmative  relief,  either  legal  or  equitable,  to  be  obtained 
by  defendants  through  a  counterclaim,  such  a  decree,  under  proper 
pleadings,  is  doubtless  a  matter  of  course  and  of  right.    Even  where 

•"  Malins  v.  Freeman,  2  Keen  25,  1  Ames  Eq.  Jur.  383,  2  Keener  033,  2  Scott 
272;  Manser  v.  Back,  6  Hare  443,  2  Scott  274;  Webster  v.  Cecil,  30  Beav. 
G2.  1  Ames  Eq.  Jur.  382,  2  Keener  954,  2  Scott  279:  Day  v.  Wells,  30  Beav. 
220.  1  Ames  Eq.  Jur.  380,  2  Keener  951.  Jn  applyino;  these  rules  of  the  text 
it  may  be  laid  clown  as  a  general  proposition  that  wlierever,  in  the  description 
of  the  subject-matter  or  in  the  terms  and  sti]inlations,  a  written  agreement 
is  ambiguous,  so  that  the  defendant  may  reasonaljly  have  been  mistaken  as  to 
tlie  subject-matter  or  terms,  or  is  susceptible  of  different  constructions,  so 
lliat  upon  one  construction  it  would  have  an  effect  which  the  defendant  may 
be  reasonably  supposed  not  to  have  contemplated  or  intended,  or  so  that  the 
defendant  may  have  reasonably  put  a  different  construction  upon  it  from  that 
which  was  understood  by  the  plaintiff,  in  either  of  these  cases  a  specific  per- 
formance Mill  be  tlenied  at  the  instance  of  tlie  defendant,  on  the  ground  that 
it  is  inequitable  to  enforce  the  apparent  agreement,  when  he  has  shown  that 
there  was  no  real  meeting  of  minds,  no  common  assent  upon  the  same  matters: 
Swaisland  v.  Dearsley,  29  Beav.  430,  1  Ames  Eq.  Jur.  376;  Denny  v.  Hancock, 
L.  R.  (i  Ch.  App.  1,  2  Keener  909;  Calverly  v.  Williams,  1  Ves.  210.  2  Scott 
2'59.  ,For  cases  where  the  defendant's  mistake  Avas  not  a  defense,  on  account 
of  his  culpable  negligence  in  making  inquiries,  or  because  it  did  not  affect  a 
vital  part  of  the  contract,  see  Tamplin  v.  James.  L.  B.  15  Ch.  Div.  215,  1 
Ames  Eq.  Jur.  388.  2  Keener  979.  2  Scott  277:  Western  B.  B.  Co.  v.  Babcock, 
«  Met.  340.  2  Keener  937:  r'aldwcll  v.  Depcw.  40  :\Iinn.  528.  42  X.  \Y.  479, 
2    Keener    1000. 

"Bedfield  v.  (Heason.  01  Vt.  220.  17  Atl.  1075.  15  Am.  St.  Rep.  889.  quoting 
te.xt ;    Bradford  v.   Tnion   j'anl--,   13   flow.  57.  SIi.   259. 


433  :mi.s'jak];.  >^  s6<J 

there  has  been  no  mistake,  surprise,  or  fraud,  if  in  such  a  suit  the 
defendant  alleges  and  proves  an  additional  parol  provision  or  stijni- 
lation  agreed  upon  by  the  parties,  the  court  will  decree  a  specific 
performance  of  the  written  contract  with  this  verbal  provision  in- 
corporated into  it,  or  else  will  dismiss  the  suit  entirely.'  It  is  not 
ever}'  mistake  which  will  defeat  the  enforcement  of  an  agreement. 
The  error  nmst  be  material,  and  must  possess  all  of  the  elements 
lieretofore  described  as  requisite  to  the  existence  of  the  eciuitable 
.jurisdiction. 

-<  861.  Parol  Evidence  of  Mistake  on  the  Plaintiff's  Part  in  Suits 
for  a  Specific  Performance — English  Rule. — AYe  come,  in  the  third 
place,  to  the  (jucstion  as  to  parol  evidence  of  mistake  on  the  part 
of  the  plaintift'  in  suits  brought  upon  written  agreements  seeking 
to  obtain  their  specific  enforcement.  It  has  been  shown  that  parol 
evidence  of  the  mistake  may  be  used  by  the  plaintiff  in  suits  brought 
directly  upon  it  and  seeking  the  remedy  of  a  reformation  or  a  can- 
cellation, in  order  to  be  relieved  from  its  consequences;  and  also 
that  in  suits  on  a  written  contract  the  defendant  may  resoi't  to 
parol  evidence  of  a  mistake  by  way  of  defense,  and  even  that  the 
court  may  decree  a  performance  of  the  contract  as  thus  varied  hij 
means  of  Iris  evidence.  The  cpiestion  now  presented  is,  whether,  in 
suits  of  the  same  nature  for  the  enforcement  of  a  written  agree- 
ment, the  plaintiff',  in  addition  tc  his  averment  of  the  written  con- 
tract, may  allege  a  mistake,  surprise,  or  fraud,  and  may  by  means 
of  parol  evidence  establish  the  verbal  modification  in  the  terms  of 
the  contract  which  would  result  from  such  error  or  fraud,  and  ma^^ 
obtain  in  the  same  suit  a  specific  performance  of  the  agreement  so 
modified  or  varied.  The  rule  is  well  established  in  England  that 
this  cannot  be  done,  unless  there  has  been  a  part  performance  of 
the  parol  variation.^  The  reason  originally  assigned  for  this  rule 
was,  that  the  admission  of  parol  evidence  as  the  foundation  for 
filial  relief  in  such  suits  would  be  a  violation  of  the  statute  of 
frauds.  If  this  reasoning  has  any  force,  it  is  difficult  to  see  why 
it  does  not  equally  forbid  the  enforcement  of  written  contracts 
as  modified  by  parol  evidence  at  the  instance  of  defendants,  or 
why  it  does  not  in  fact  strike  at  the  very  foundation  of  the  doctrine 
of  reforming  written  agreements  by  means  of  parol  evidence. 

§  862.  Same.  American  Rule — Evidence  Admissible. — The  Am- 
erican courts  have  pursued  a  more  simple  and  enlightened  course 
of  adjudication.  The  doctrine  is  well  settled  in  the  United  States 
that  where  the  mistake  or  fraud  in  a  Avritteu  contract  is  such  as 
admits  the   ef|uitable   remedy   of   reformation,   parol   evidence   may 

Mtartin   v.    Pvoroft,   2   De  Gex.  M.   &    C.    785. 

M^"nnla^1l  v.  llcarn.  7  Ves.  221.  2  Lead.  ("as.  Kq.,  41h  Aiii.  fd.  920.  2  Ames 
Eq.  .liir.  2n7.  2  Seott  2fi2 :  MAy  V.  Piatt    (lOOO),  1   Ch.  tilC.  2  Ames  Kq.  Jur.  300. 

28 


§  805  EQUITY    JUI!ISPUUDENCE.  434 

be  resorted  to  by  the  plaintiff  in  suits  brought  for  a  specific  per- 
formance. The  plaintiff  in  such  a  suit  may  allege,  and  by  parol 
evidence  prove,  the  mistake  or  fraud,  and  the  modification  in  the 
written  agreement  made  necessary  thereby,  and  may  obtain  a  de- 
cree for  the  specific  enforcement  of  the  agreement  thus  varied  and 
corrected.^  As  in  suits  for  a  reformation  alone,  the  evidence  must 
be  of  the  clearest  and  most  convincing  nature ;  the  burden  of  proof 
is  on  the  plaintiff,  and  he  must  prove  his  case  beyond  a  reasonable 
doubt.-  It  is  not  sufficient  merely  to  prove  a  mistake  which  might 
be  ground,  for  a  rescission.  The  plaintiff  must  establish  a  mistake 
of  such  a  character  as  entitles  him  to  a  reformation,  and  such  cir- 
cumstances as  render  a  reformation  possible.^     .... 

i;  863.  Evidence  of  a  Parol  Variation  Which  has  been  Part  Per- 
formed.— There  is  one  particular  case  with  respect  to  which  the 
English  and  American  courts  are  agreed, — the  part  performance 
by  the  plaintiff  of  the  parol  provision  which  he  alleges  in  variation 
of  the  written  agreement.  It  is  the  settled  rule,  both  in  England 
and  in  this  country,  that,  in  suits  for  a  specific  performance,  the 
plaintiff  may  allege  and  prove  a  verbal  addition  or  variation  of 
the  written  contract,  and  that  this  additional  verbal  stipulation  has 
been  part  performed  by  him,  and  may  then  obtain  a  decree  for  the 
specific  enforcement  of  the  entire  agreement  as  thus  modified.^ 
There  are  two  conditions  of  fact  to  which  this  rule  applies:  1.  The 
verbal  modification  may  be  contemporaneous  with  and  a  part  of 
the  original  agreement;-  2.  It  may  be  a  subsequent  alteration  of  or 
addition  to  the  original  written  agreement.  The  rule  applies  alike 
to  each  of  these  two  cases;  but  in  both  the  part  performance  must 
be  of  the  verbal  stipulation,  and  must  conform  to  all  requisities  as 
settled  with  respect  to  the  part  performance  of  any  verbal  agree- 
ment.""* 

i;  864.  Effect  of  the  Statute  of  Frauds  upon  the  Use  of  Parol 
Evidence, — 

§  865.  Two  Classes  of  Cases  in  Which  the  Use  of  Parol  Evidence 
may  be  Affected  by  the  Statute. — In  contracts  required  by  the  stat- 
ute of  frauds  to  be  in  writing,  all  possible  errors  requiring  a  verbal 
variation,  whether  arising  from  mistake,  surprise,  or  fraud,  may  be 

'  Keisselbrack  v.  Johnson,  4  Johns.  Ch.  144,  148,  2  Scott  GIG;  Smith  v. 
Allen,  1  N.  J.  Eq.  43,  21  Am.  Dec.  33. 

=  Hunter  v.  Bilyen,  .30  TU.  228.  H.  &  B.  248.     See  ante.  §8.59. 

^Tesson  v.  Atlantic  M.  Ins.  Co.,  40  Mo.  33.  (13  Am.  Dec.  293;  Keisselbraek 
V.   Livingston.   4  Johns.   Ch.    144.   2   Scott   GIG. 

^  Price  V.  Dyer.  17  Ves.  35G.  2  Scott  2GG.  and  cases  in  following  notes. 

-Moale  V.  Buchanan,  11  Gill  &  .T.  314. 

^  Cases  in  precedino-  notes:  Glass  v.  Hulhcrt.  102  ^lass.  24,  28,  3  Am.  Rep. 
418,  H.  &  B.  254,  3  Keener  327,  Sh.  264,  2  Scott  GIO:  Broughton  v.  Coffer,  18 
Gratt.  184. 


435  MLSTAKE.  §  865 

rtHluecd  to  two  general  classes:  1.  By  means  of  the  error  the  con- 
tract may  include  within  its  terms  certain  subject-matters — as,  for 
example,  lands — which  were  not  intended  by  the  parties  to  come 
within  its  operation,  in  which  case  the  parol  evidence  will  show 
tiiat  such  subject-matters  should  be  omitted,  and  the  relief  demand- 
ed will  be  a  correction  which  shall  exclude  them,  and  confine  the 
operation  of  the  agreement  to  the  remaining  subject-matters  men- 
tioned in  it,  and  to  which  alone  it  was  intended  by  the  parties  to 
^M^ply;  2.  By  means  of  the  error  the  contract  may  omit  certain  sub- 
ject-matters— as  lands — which  were  intended  by  the  parties  to  come 
within  its  operation;  and  in  this  ease  the  parol  evidence  will  show 
that  such  subject-matter  should  be  included,  and  the  relief  demand- 
ed Avill  be  a  modification  of  the  writing,  so  that  it  shall  embrace 
them,  and  shall  thus  extend  its  operation  to  particular  subject-mat- 
ters not  mentioned  in  it,  but  to  which  it  was  originally  intended 
to  apply.  So  far  as  the  statute  of  frauds  can  affect  the  parol  varia- 
tion of  wn'itten  instruments,  it  is  obvious  that  these  two  classes 
describe  all  possible  cases  which  can  arise.  Now,  it  has  been  as- 
serted— and  I  merely  state  the  position  at  present  without  inquiring 
into  its  correctness — that  a  reformation  and  enforcement  based 
upon  parol  evidence  in  the  first  of  these  classes  does  not  conflict 
with  the  statute  of  frauds,  since  the  relief  does  not  malr.  a  parol 
contract,  but  simply  narrows  a  written  one  already  made.  On  the 
other  hand,  as  it  is  asserted,  the  same  relief  in  the  second  class  does 
directly  conflict  with  the  statute,  since  it  is  a  virtual  making  of  a 
parol  contract  in  relation  to  land  or  other  subject-matter  specified 
in  the  statute.  In  short,  it  is  argued,  the  remedy  in  the  latter  in- 
stance is  a  parol  extension  of  a  written  contract,  so  that  it  shall 
embrace  a  subject-matter  not  otherwise  within  its  scope ;  in  the 
former  instance  it  is  the  withdrawal,  by  parol  evidence,  of  a  portion 
of  the  subject-matter  from  the  scope  of  a  written  contract  which 
is  left  in  full  force  as  to  the  remaining  portion  which  had  been  em- 
braced within  it  from  the  beginning ;  one  is  an  affirmative  process 
of  making  a  contract;  the  other  is  merely  a  negative  process  of 
limiting  a  contract  already  made.  The  conflict  of  decision  before 
mentioned  turns  upon  these  two  classes.  According  to  the  inter- 
pretation of  the  general  doctrine  maintained  by  one  group  of  deci- 
sions, the  admission  of  parol  evidence  is  confined  to  cases  falling 
within  the  first  class  ;^  according  to  the  other  view,  the  evidence 
is  admissible  alike  in  cases  belonging  to  l)oth  classes. - 

'Glass  V.  Hulh.Tl.  102  Mass.  24.  3  Am.  Rop.  41S.  P,  Koonor  327,  2  Scott  (ilO, 
H.  &  15.  2.54.  Slif'p.  204:  Davis  v.  Ely.  104  N.  ('.  IC.  10  S.  E.  13S,  17  .\ni.  St. 
Rep.  mi,  r.  ]..  R.  A.  810.  TT.  &   B.  2(52. 

^Gillospio  V.  JNIooii.  2  Jolins.  Ch.  585,  7  Am.  Doc.  550,  1  Scott  43;  Keisselbrack 


I  869  EQUITY    JUHlSPliLDEXCE.  436 

^5  867.  .  .  .  The  principles  which  underlie  the  theory  advo- 
cated by  the  Massachusetts  court,  if  carried  out  to  their  legitimate 
lesults,  would  work  a  virtual  revolution  in  equity  jurisprudence, 
would  confine  its  most  salutary  remedial  functions  within  very  nar- 
row limits,  and  would  overturn  doctrines  which  have  been  regarded 
;!s  settled  since  the  earliest  periods  of  the  jurisdiction.  They  would 
greatly  abridge  the  remedy  of  reformation;  they  would  prevent  the 
court  from  establishing  and  enforcing  parol  contracts  which  the 
defendant's  actual  fraud  had  prevented  from  being  pnt  into  writ- 
ii'.g;  and  in  fact,  these  principles  cannot  be  reconciled  with  the 
doctrines  upon  which  the  jurisdiction  of  equity  to  enforce  parol 
contracts  in  cases  of  part  performance  is  rested.  The  statute  of 
frauds  is  no  real  obstacle  in  the  way  of  administering  equital)le 
]  (Mnedies  so  as  to  promote  justice  and  prevent  wrong.  Equity  does 
not  deny  nor  overrule  the  statute;  but  it  declares  that  fraud  or 
mistake  creates  obligations,  and  confers  remedial  rights  which  are 
not  within  the  statutory  prohibition;  in  respect  of  them,  the  stat- 
ute is  uplifted.^ 

ij  868.  IV.  Instances  of  Equitable  Jurisdiction  Occasioned  by 
Mistake— By  Way  of  Defense.'— 

ij  869,  By  Way  of  Affirmative  Relief — Recovery  of  Money  Paid 
by  Mistake. — The  jurisdiction  to  confer  affirmative  relief  will  only 
be  exercised  in  cases  where  an  adequate  remedy  cannot  be  obtained 
at  law.  Whenever  money  has  been  paid,  or  chattels  have  been  de- 
livered, through  mistake,  the  legal  remedy  by  action  will  ordinarily 
be  adequate  and  certain;  in  fact,  the  action  to  recover  back  money 
j^aid  by  mistake  is  a  very  familiar  one  at  law.  Whenever  land 
has  been  conveyed,  or  contracted  to  be  conveyed,  through  mistake, 
the  adequate  remedy  of  the  grantor  or  vendor  would  generally 
require  the  equitable  relief  of  a  cancellation.  Although  an  action 
at  law  will  ordinarily  lie  to  recover  back  money  paid  through  mis- 
take, still,  if  the  circumstances  are  special,  and  such  that  an  action 
at  law  will  either  not  lie  at  all,  or  will  furnish  an  inadequate  relief. 


V.  Livingston,  4  Johns.  Ch.  144,  2  Scott  016:  Himter  v.  Bilyeu,  30  IIJ.  228,  H. 
&  B.  248;  Hitchins  v.  Pettingill,  58  N.  H.  386,  2  Ames  Eq.  Jur.  307,  3  Keener 
344,  371,  H.  &  B.  246,  2  Scott  627;  McDonald  v.  Yungbhith,  46  Fed.  836,  2  Scott 
()24;  Noel's  Ex'rs  v.  Gill,  84  Ky.  241,  3  Keener  241.  In  Neininger  v.  State,  50 
Ohio  St.  394,  34  N.  E.  633,  3  Keener  358,  the  principle  was  applied  to  the  refor- 
juation  of  a  contract  executed  by  a  surety.  The  weight  of  authority  is  in 
favor  of  this  view;  the  arguments  in  its  favor  are  fully  stated  in  2  Pom.  Eq. 
.Jur..   S  807,   note   4. 

'  See  the  language  of  Lord  Westlniry  in  McCormick  v.  Grogan,  L.  R.  4 
H.  L.  82,  97.  1   Scott  241,  quoted  ante,  §431. 

'  See  ante,   §  8G0. 


43T  MI.STAKK.  §  8T0 

a  L'ourt  of  equity  has  undoubted  jurisdiction,  and  will  entertain  a 
suit  for  the  recovery  of  the  money,  if  in  good  conscience  it  ought  to 
be  repaid.^ 

§870.  Affirmative  Relief — Reformation  and  Cancellation. — The 
most  important  affirmative  remedies  conferred  by  an  exercise  of  the 
equitable  jurisdiction  on  the  occasion  of  mistake  are  cancellation 
and  reformation.  Cancellation  is  appropriate  when  there  is  an  ap- 
x^arently  valid  written  agreement  or  transaction  embodied  in  writ- 
ing, while  in, fact,  bj^  reason  of  a  mistake  of  both  or  one  of  the  par- 
ties, either  no  agreement  at  all  has  really  been  made,  since  the 
minds  of  both  parties  have  failed  to  meet  upon  the  same  matters, 
or  else  the  agreement  or  transaction  is  different,  with  respect  to  its 
subject-matter  or  terms,  from  that  which  was  intended.^  Reforma- 
tion is  appropriate,  when  an  agreement  has  been  made,  or  a  trans- 
action has  been  entered  into  or  determined  upon,  as  intended  by 
all  the  parties  interested,  but  in  reducing  such  agreement  or  trans- 
action to  writing,  either  through  the  mistake  common  to  both  par- 
ties, or  through  the  mistake  of  the  plaintiff  accompanied  by  the 
fraudulent  knowledge  and  procurement  of  the  defendant,  the  writ- 
ten instrument  fails  to  express  the  real  agreement  or  transaction. 
In  such  a  case  the  instrument  may  be  corrected  so  that  it  shall 
truly  represent  the  agreement  or  transaction  actually  made  or  de- 
termined upon  according  to  the  real  purpose  and  intention  of  the 
parties.'-     ... 


'  Bingham  v.  Bingham,  1  Ves.  Sr.  12G,  2  Ames  Eq.  .Tur.  264,  2  Scott  543, 
.3  Keener  5;  Rogers  v.  Ingham,  L.  R.  3  Ch.  Div.  351,  356,  2  Scott  572,  3 
Keener  75,  Shep.  157;  Gould  v.  Emerson,  160  Mass.  438,  35  N.  E.  1065,  39 
Am.  St.  Rep.   501,  3   Keener  324. 

'  Cancellation  granted  where  the  subject-matter  of  the  agreement  had  no 
existence,  but  both  ])arties  supposed  tliat  it  existed  and  ti'eated  on  that  un- 
derstanding: Hitchcock  V.  Giddings,  4  Price  135,  2  Ames  Eq.  Jur.  192;  Allen 
V.  Hammond,  11  Pet.  03,  2  Scott  582;  see  Riegel  v.  American  Life  Ins.  Co., 
140  Pa.  St.  193,  23  Am.  St.  Rep.  225,  21  Atl.  392,  11  L.  R.  A.  857,  3  Keener 
191 ;  or  for  mistake  as  to  the  identity  of  the  subject-matter,  so  that  the  minds 
of  the  parties  never  met;  Crowe  v.  Lewin.  05  X.  Y.  423.  3  Keener  283. 

"Common  mistake:  That  the  mistake  must  occur  in  reducing  the  agree- 
ment to  M-riting,  and  not  in  the  original  agreement,  see  INIackenzie  v.  Coulson, 
L.  H.  8  Eq.  368.  3  Keener  267:  Barrow  v.  Barrow,  18  Beav.  5,  2  Ames  Eq.  Jur. 
199;  Whittemore  v.  Farrington.  76  N.  Y.  452,  2  Ames  Eq.  Jur.  208,  2  Scott 
600,  3  Keener  209;  Citizens'  Nat.  Bank  v.  Judy.  146  Tnd.  322.  43  X.  E.  259. 
3  Keener  433.  The  mistake  may  bo  either  as  to  the  contents  or  tlie  efTcct  of 
the  instnnnent;  but  a  mistake,  in  order  to  be  "common  to  both  parties," 
must  be  in  regard  to  the  same  matter:  Page  v.  Higgins,  150  Mass.  27,  22 
N.  E.  63,  5  L.  R.  A.  152.  Mistake  of  the  plaintifl'  accompanied  by  the  fraudulent 
knowledge  and  procurement  of  the  defendant:  See  Welles  v.  Yates,  44  X.  Y. 
525.   3   Keener  272,  H.   &-   B.   790.   Sliej).   247;    Kilmer  v.   Smith.   77   X.   Y.   226, 


§  871  EQUITY    JURISPRUDENCE.  438 

§  871.  Conditions  of  Fact  Which  are  Occasions  for  Affinnative 
Relief. — The  conditions  of  fact  which  furnish  occasions  for  the  exer- 
cise of  the  jurisdiction  to  grant  athrmative  relief,  either  of  reforma- 
tion, of  cancellation,  or  of  pecuniary  recovery,  are  manj-  and  vari- 
ous. The  following  are  some  of  the  most  important.  The  relief 
which  equity  gives  in  aid  of  a  defective  execution  of  powers  may 
be  occasioned  by  mistake  as  well  as  by  accident.^  Judgments  at 
hiw  recovered  through  mistake  may  be  a  ground  for  the  interposi- 
tion of  equity  in  enjoining  or  setting  aside  the  judianent,  to  the 
same  extent  and  under  the  same  limits  as  those  recovered  by  acci- 
dent.^ .  .  .  Equity  has  a  very  narrow  jurisdiction  to  correct 
mistakes  in  Avills,  but  only  when  the  error  appears  upon  the  face  of 
the  will  itself,  so  that  both  the  mistake  and  the  correction  can  be 
ascertained  and  supplied  by  the  context,  from  a  plain  interpreta- 
tion of  the  terms  of  the  instrument  as  it  stands.  A  resort  to  ex- 
trinsic evidence  is  never  permitted,  either  to  show  a  mistake  or  to 
ascertain  the  correction.  INIistakes  which  can  be  thus  corrected 
may  be  in  the  names  of  legatees  or  devisees,  in  the  description  of 
property,  or  in  other  terms.^  The  jurisdiction  to  grant  the  relief 
of  reformation  may  be  exercised  with  respect  to  written  instru- 
ments operating  inter  vivos,  whether  they  are  executed  contracts, 
such  as  deeds  of  conveyance,  mortgages,  leases,  or  executory  agree- 
ments, such  as  bonds,  policies  of  insurance,  notes,  bills  of  exchange, 
and  the  like.*     There  is,  of  course,  no  power  to  reform  wills.^     The 

3.3  Am.  Rep.  613,  3  Keener  283:  Town  of  E^sex  v.  Day,  :)2  Conn.  483,  3 
Keener  303;  Palmer  v.  Hartford  Fire  Ins.  Co..  r)4  Conn.  488,  9  Atl.  248,  3 
Keener  317;  Keister  v.  Myers,  115  Ind.  312.  17  X.  E.  101.  3  Keener  314; 
('leghorn  v.  Zumwalt.  S3  Cal.  155,  23  Pac.  294.  2  Ames  Eq.  Jur.  107.  3 
Keener  322.  A  mere  mistake  of  one  party,  not  known  to  or  sliared  by  the  other, 
is  not  a  p:i-oiind  for  reformation,  since  that  wonld  be  to  make  a  new  contract 
for  the  parties:  (5un  v.  McCarthy,  L.  R.,  Jr.,  13  Ch.  D.  304,  2  Ames  Eq. 
.Inr.  238;  Diman  v.  Providence,  etc..  R.  Co..  5  R.  1.  130.  3  Keener  1140; 
Fehlberg  v.  Cosine.  1(1  R.  1.  162,  13  Atl.  110.  3  Keener  312;  Moran  v.  :\rcLarty, 
75  N.  Y.  25,  3  Keener  280:  Doniol  v.  Commercial  Eire  Ins.  Co.,  34  X.  J.  Eq. 
30.  2  Ames  Eq.  dnr.  237.  In  snch  cases,  however,  the  court  has  sometimes 
made  the  decree  for  cancellation  conditional  upon  the  defendant's  refusal  to 
consent  to  reformation:  Carrard  v.  Frankel.  30  Beav.  445.  3  Keener  2G1 ; 
Paget  v.  Marshall.  L.  R.  28  Ch.  T).  255.  2  Scott  610.  3  Keener  295. 

^  .See  ante,  S§  589.  590.  834,  835,  where  this  particular  instance  of  the  juris- 
diction  is   explained. 

"See  ante,  S  836,  post,  §1364.  As  to  compromises  and  settlements,  see 
ante,  §§  8.50.  855. 

^Du   Rois  V.   Ray.   35  X.   Y.   162. 

^  See  cases  cited  ante,  under  §870. 

*  Sherwood  v.  Sherwood,  45  Wis.  357,  30  Am.  Rep.  757;  Binge!  v.  Volz, 
142  111.  214,  31  X.  E.  13,  34  Am.  St.  Rep.  64.  16  L.  R.  A.  321;  Sturgis  v. 
Work.   122    Ind.    134,  22  N.  E.   996.   17   Am.   St.   Rep.   349. 


439  MISTAKE.  §  871 

relief  of  cancellation  may  be  granted  with  respect  to  deeds  of  con- 
veyance, mortgages,  agreements  concerning  land,  and  other  similar 
transactions,  subject  always  to  the  important  limitation  that  the 
party  can  obtain  no  adequate  remedy  at  law."  With  respect  to 
mistakes  in  awards,  the  jurisdiction  exists,  but  will  be  exercised 
only  within  very  narrow  limits.  If  a  mistake  appears  on  the  face 
of  the  award  itself,  or  in  some  contemporaneous  writing,  or  is  vol- 
untarily admitted  by  the  arbitrator,  or  he  states  circumstances 
which  clearly  show  an  error,  equity  may  relieve  by  setting  aside 
or  perhaps  correcting  the  award ;  otherwise  there  is  no  ground  for 
interference.'^  A  court  of  equity  may,  perhaps,  under  special  cir- 
cumstances, exercise  its  jurisdiction  by  correcting  mistakes  in  judg- 
ments and  decrees  and  other  records,  where  the  error  is  clerical  or 
ministerial,  and  not  judicial,  and  there  is  no  other  means  of  ob- 
taining the  relief.^  Where  an  instrument  has  been  surrendered  or 
discharged,  or  an  encumbrance  or  charge  has  been  satisfied  through 
mistake,  the  jurisdiction  may  be  exercised  by  granting  such  relief 
as  Avill  replace  the  party  entitled  in  his  original  position,  either  by 
setting  aside  the  formal  discharge,  or  by  compelling  a  re-execution 
of  the  instrument.''  The  jurisdiction  extends  to  the  settlement  of 
accounts,  made  according  to  the  intention  of  the  parties,  but  based 
upon  or  involving  a  mistake.  Relief  will  be  granted  as  the  circum- 
stances may  require,  either  by  setting  aside  the  settlement,  or  by 
permitting  a  party  to  surcharge  or  falsify.^"  Finally,  the  equitable 
jurisdiction  may  be  exercised  by  the  relief  of  a  pecuniary  recovery 
for  money  paid  under  a  mistake,  whenever  no  adequate  remedj^  can 
be  obtained  by  an  action  at  law."  The  affirmative  reliefs  of  re- 
formation and  of  cancellation  are,  however,  subject  to  the  limita- 
tion that  they  are  never  conferred  against  a  bona  fide  purchaser 
for  value  and  without  notice.^^ 

«  See   ante,   §  870,   post.   §  1370. 

^Bnish  V.  Fisher,  70  Mich.  469,  38  N.  W.  446,  14  Am.  St.  Rep.  510;  Friek 
V.  Christian  Co.,  1  Fed.  2.')0.  If  the  award  is  within  the  submission,  no  mistake 
of  the  arbitrator,  either  of  law  or  fact,  established  by  extrinsic  evidence  will 
be  a  ground  for  the  interference  of  equity.  The  subject  of  awards  and  of  the 
proceedings  thereon  has  in  many  states  been  so  regulated  by  statute  tliat  the  ^ 
jurisdiction  of  equity  over  them  has  become  unimportant,  if  not  obsolete.  '' 

'Baniesly  v.  Powell,  1  Ves.  Sr.  119,  2S4,  289;  Greeley  v.  De  Cotter,  24 
Fla.  475.  5  South.  239;  Smith  v.  Butler.  11   Or.  46,  4  Pac.  517. 

"Riegel  V.  American  L.  Ins.  Co.,  140  Pa.  St.  193.  21  Atl.  392,  23  Am.  St. 
Rep.  225,  11  L.  R.  A.  857,  H.  &  B.  221,  3  Keener  101.  As  to  reinstatement  of 
mortgages  released  by  mistake,  see  the  valuable  monographic  note,  58  L.  R 
A.   788. 

'"  Cething  v.  Keighloy,  L.  R.  9  Ch.  Div.  547. 

"See   ante,    §§  851.    869. 

«See  ante,  §776. 


EQUITY    JUKISPRUDEXCE.  410 


SECTION  III. 

ACTUAL   FllAUD. 

ANALYSIS. 

§  872.  Objects  and   purposes. 

^  873.  Description ;  essential  elements. 

§  874.  Four  forms  and  classes  of  fraud  in  equity. 

§  875.  Nature  of  actual   fraud. 
§§  870-899.  First.     iMisrcpresentations. 

§   877.  1.  The  form :  an  ailirmation  of  fact. 

§   878.  Misrepresentation   of  matter  of  opinion. 

§   879.  11.  The  purpose  for  which  tlie  representation  is  made. 

§   880.  Presumption    of   the   jjurpose   to   induce   action. 

§   881.  False  prospectuses,  reports,  and  circulars. 

§   882.  111.   Lntruth   of   the   statement. 
§§  883-889.  IV.  .The    intention,    knowledge,   or   belief   of   the   party   making   tlie 
statement. 

§  884.  The  knowledge  and  intention  requisite  at  law. 

§   885.  The    knowledge    or   intention    requisite    in    equity., 
§§  886-888.  iSi.x    forms    of    fraudulent    misrepresentations    in    equity. 

§  889.  Kequisites    of    a    misrepresentation    as    a    defense    to    ihe    specific 
enforcement  of  contracts  in  equity. 
§§  890-897.  V.  Fllect  of  the  representation  on  the  party  to  whom  it   is   made. 

§   890.   Me   nuist   rely   on    it. 

§  891.  lie  must  he  justified  in  relying  on  it. 

§  892.   \\  hen   lie  is  or  is  not  justified  in  relying  on   it. 

§   893.  Information    or    means    of    obtaining   information    possessed    by    the 
parties    receiving    the    representation. 

§   894.  Knowledge    ))ossessed    by    him;    patent    defects. 

§  895.  \\'hen  tlie  knowledge  or  information  must  be  proved  and  not  i)re- 
sunied. 

§   89(j.   Words   of   general    caution. 

§  897.  Froiii])t    disalllrmance    necessary. 

§  898.   \T.  JMateriality    of    the    misrepresentation, 

§   899.  EtVects   of  a   misrepresentation. 
§§  900-907.  Second.      Fraudulent    concealments. 

§  901.  General  doctrine;    duty  to  disclose. 

§  902.  When  duty  to  disclose  exists. 

§   903.  Concealments    by    a    vendee. 

§   904.  Concealments   by   a   Aendor. 

§   905.  Non-disclosure    of    facts    a    defense    to    the    sjiecific    enforcement    of 
contracts    in    ciiuity. 

§   900.  Concealments    by    buyers    on    credit. 
•    S  907.  Contracts  and  transactions  essentially   fiduciary;   surctysliip. 
§§  908.  909.  Liability  of  principals   for  the  fraud  of  tiieir  agents. 
§§  910-92L  TJbird.     Jurisdiction    of   equity    in    cases    of    fraud. 

§  911.  Fundamental   principles   of  the  jurisdiction. 

§   912.  The    Fnglish    doctrine. 

§  913.  Fxception :    fraudulent   wills. 

§  914.  The  American  doctrine. 


441  ACTUAL    FRAUD.  §  872 

§  915.  Incidents  of  the  jurisdiction  and  relief. 

§  916.  The  same;   plaintiiV  particeps  doli ;   ratification. 

§  917.  The    same;    promptness;    delay    throu<ih    ignorance    of    the    fraud. 

§  918.  Persons    against    whom    relief    is    granted ;    bona    fide    purchasers. 

§  919.  Jfai'ticular  instances  of  the  jurisdiction:  judgments;  awards;  fraud\i- 

lent    devises    and    bequests;    preventing    acts    for   the    benefit    of 

othei's;   suppressing  instruments. 
§  920.  The  same;  appointment  under  powers:  marital  rights;  trusts. 
§  921.  The   statute  of   frauds   not  an   insti-ument   for  the  accomplishment 

of    fraud. 

^  872.  Objects  and  Purposes. — Fraud,  in  some  of  its  phases,  has 
long-  been  an  occasion  for  the  exercise  of  jurisdiction  both  at  law 
and  in  equity.  The  various  reliefs  on  the  ground  of  fraud  which 
are  possible  from  the  nature  of  the  legal  and  the  equitable  modes 
of  procedure  and  remedies  are  the  following:  At  law:  1.  The 
affirmative  relief  of  rescission,  whereby  the  defrauded  party  is  per- 
mitted to  rescind  the  contract  or  other  transaction,  or.  more  ac- 
curately, to  treat  it  as  rescinded, — to  restore  himself  thereby  to 
his  original  position  of  right,  and  by  means  of  an  appropriate  ac- 
tion to  recover  back  the  money  or  other  property  of  which  he  had 
been  deprived,  or  which  he  had  parted  with;  2.  The  affirmative 
relief  whereby  the  defrauded  party  suffers  the  transaction  to  stand, 
and  by  action  recovers  pecimiary  damages  as  compensation  for  the 
injury  sustained  by  him  from  the  deceit:  3.  Defensive  relief,  where- 
by the  party  sets  up  the  fraud  as  a  defense,  and  thereby  defeats 
any  action  brought  to  enforce  the  apparent  fraudulent  obligation. 
In  equity:  1.  The  affirmative  relief  of  cancellation,  whereby  the 
defrauded  party  procures  an  instrument,  obligation,  transaction,  or 
other  matter  affecting  his  rights  and  liabilities  to  be  set  aside  and 
annulled,  and  himself  to  be  restored  to  his  original  position  of 
right,  and  as  a  consequence  to  re-establish  his  title,  or  to  recover 
possession  and  enjoyment  of  property;  2.  The  affirmative  relief 
of  reformation  by  which  a  wantten  instrument  is  corrected,  and  per- 
haps re-executed,  when,  through  fraud  of  the  other  party,  it  failed 
to  express  the  real  relations  which  existed  between  the  two  parties; 
3.  The  affirmative  relief  of  a  pecuniary  recovery  where  the  liability 
arose  from  the  fraud  of  the  other  party,  and  no  cancellation  is 
necessary  as  the  foundation  of  the  recovery;  4.  Defensive  relief. 
Avhereby  the  fraud  is  set  up  by  way  of  defense  to  defeat  any  .suit 
b'fought  to  enforce  an  appa-'ent  obligation  or  liability.  .  .  . 
This  discussion  deals  with  fraud  in  equity,  and  will  only  refer  in- 
cidentally, and  by  way  of  illustration,  to  fraud  at  lav,-!  Whatever 
amounts  to  fraud,  according  to  the  legal  conception,  is  also  frand 
in  the  equitable  conception  ;  but  the  converse  of  this  statement  is 
not   true.      The   equitable   theory   of   fraud    is   nuich   more  eompre- 


§  873  EQUITY    JLin.Si'UUDENCE.  44:3 

hensive  thau  that  of  the  hiw,  and  contains  elements  entirely  ditit'er- 
ent  from  any  Avhich  enter  into  the  legal  notion. 

^  873.  Description — Essential  Elements. — It  is  utterly  impos- 
sible to  formulate  an}'  single  statement  which  shall  accurately  de- 
fine the  equitable  conception  of  fraud,  and  which  shall  contain  all 
of  the  elements  which  enter  into  that  conception;  these  elements 
are  so  various,  so  different  under  the  different  circumstances  ot 
equitable  cognizance,  so  destitute  of  any  common  bond  of  unity, 
tl'.at  they  cannot  be  brought  within  any  general  formula.  To  at- 
tempt such  a  definition  would  therefore  be  not  only  useless,  but 
actually  misleading.  It  has  been  shown  in  a  former  chapter^  that 
tlie  .jurisdiction  of  chancery  was  originally  rested  npon  two  funda- 
]>'ental  notions,  equity  and  conscience,  or  good  faith.  The  first 
of  these  embraced  all  cases  where  a  party,  acting  according  to  the 
rules  of  the  law,  and  not  doing  anything  contrary  to  conscience 
or  good  faith,  might  obtain  an  undue  advantage  over  another,  which, 
though  strictly  legal,  equity  would  not  permit  him  to  retain.  The 
second  embraced  all  those  cases  where  a  party,  although  perhaps 
still  keeping  within  the  limits  of  the  strict  law,  so  as  to  be  sustained 
by  the  law  courts,  had  committed  some  unconscientious  act  or 
iji'each  of  good  faith,  and  had  thereby  obtained  an  undue  advantage 
over  another,  which  advantage,  even  though  legal,  equity  would 
not  suffer  him  to  retain.  The  relief  given  by  equity  in  all  cases  of 
fraud  is  plainly  referable  to  this  second  head  of  the  original  juris- 
diction. Every  fraud,  in  its  most  general  and  fundamental  con- 
ception, consists  in  obtaining  an  undue  advantage  by  means  of  some 
act  or  omission  which  is  nneonscientious  or  a  violation  of  good 
faith  in  the  broad  meaning  given  to  the  term  by  equity, — the  bona 
fides  of  the  Roman  law.  Furthermore,  it  is  a  necessary  part  of 
this  conception  that  the  act  or  omission  itself,  by  which  the  undue 
advantage  is  obtained,  should  be  irillfuJ;  in  other  words,  should  be 
knowingly  and  intentionally  done  by  the  party;  but  it  is  not  essential 
in  the  equitable  notion,  although  it  is  in  the  legal,  that  there  should  be 
a  knowledge  of  and  an  intention  to  obtain  the  muhie  advantage  which 
results.  The  willfulness  of  the  act  or  omission  is  the  element  which 
distinguishes  fraud  from  other  matters  by  Avhich  an  undue  advan- 
tage may  be  obtained  so  as  to  furnish  an  occasion  for  the  equitable 
.iurisdiction.  Thus  it  has  been  shown  that  in  accident  an  occurrence 
e.riernal  to  the  parties  happens  without  any  intent  or  other  mental 
condition,  and  an  undue  advantage  thereby  accrues  to  one  of  them.^ 
In  mistake  ];here  is  indeed  a  mental  condition  or  conviction  of  the 
tniderstanding,  but  it  wholly  results  from  ignorance  or  misappre- 

'  Vol.    1    §  5o. 
■  See    §  823. 


4  la  ACTUAL    FRAUD.  §  875 

hcnsion,  and  prevents  the  fn'o  action  of  llie  will ;  there  is,  therefore, 
a  complete  absence  of  willfulness  or  intention  in  the  due  and  legal 
meaning'  of  those  terms.''  In  all  phases  of  fraud,  on  tlie  otlier  hand, 
there  is  a  mental  condition,  a  conviction  of  the  understanding,  a 
free  operation  of  the  will,  and  an  intention  to  do  or  omit  the  very- 
act  by  which  the  undue  advantage  is  obtained.  The  following  de- 
scription is  perliaps  as  complete  and  acc-nrate  as  can  be  given  so 
as  to  embrace  all  the  varieties  recognized  by  equity:  Fraud  in 
equity  includes  all  willful  or  intentional  acts,  omissions,  and  con- 
cealments which  involve  a  breach  of  either  lesal  or  equitable  duty, 
trust,  or  confidence,  and  are  injurious  to  another,  or  by  which  an 
undue  or  unconscientious  advantage  over  another  is  obtained. 

§  874.  Four  Forms  and  Classes  of  Fraud  in  Equity.— In  the  lead- 
ing and  celebrated  case  of  Earl  of  Chesterfield  v.  Janssen,  Lord 
ITardwicke,  while  not  attempting  to  formulate  any  general  defini- 
tion, arranged  all  the  forms  of  fraud  recognized  by  equity  in  four 
classes, — a  division  based  upon  their  instrinsic  qualities,  and  which 
has  been  followed  by  nearly  all  subsequent  writers  and  judges. 
These  classes  are:  1.  Frauds  which  are  actual,  arising  from  facts 
and  circumstances  of  imposition :  2.  Frauds  apparent  from  the  in- 
trinsic nature  and  subject  of  the  bargain  itself;  3.  Frauds  presumed 
from  the  circumstances  and  condition  of  the  parties;  4.  Frauds 
v>'hich  are  an  imposition  and  deceit  on  third  persons  not  parties  to 
the  transaction.-  In  pursuance  of  the  order,  which  seems  to  be 
simple  and  natural.  T  shall  include  and  treat  under  the  description 
of  actual  fraud  those  cases  only  which  belong  to  the  first  of  these 
four  classes.  In  all  of  them,  and  this  seems  to  be  the  essential  dis- 
tinction between  actual  and  constructive  fraud,  there  is  the  element 
of  falsity  in  fact,  and  the  knowledge  of  the  falsity  and  the  intention 
to  deceive  in  a  mocllfrd  and  partial  manner  at  least,  in  equity  no  less 
than  in  the  law.  In  the  three  other  classes  there  is  no  necessary 
element  of  falsity  in  fact,  and  the  fraud  in  each  of  them  arises 
rather  from  motives  of  expediency  and  policy  than  from  any  intent 
of  the  parties. 

§  875.  Nature  of  Actual  Fraud. — Although  it  is  not  possible  to 
give  any  complete  definition  of  fraud,  yet  it  is  possible  to  describe 
the  various  elements  which  are  essential  to  the  conception  of  actual 
fraud.  In  the  vast  majority  of  instances,  actual  fraud  occurs  in 
negotiations  or  dealings  which  are  incidents  of  some  agreement, 
executed  or  executory.  Even  in  transactions  whicli  are  not  auree- 
monts.  such  as  the  execution  of  a  will,  the  operation  and  effect  of 

*  See  §  830. 

'Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sr.  125,  1  Atk.  301,  1  Lead.  Cas.  Eq. 
4th  Am.  ed.  773,  1  Scott  455. 


§  877  EC2U1TY    JUKISPRUDENOE.  444 

fraud  are  the  same  as  iu  the  ease  of  agreements.  There  are  un- 
tloubtedly  some  special  traiisaetioiis  capable  of  being  affected  by 
fraud,  which  cannot  readily  be  brought  within  this  general  de- 
scription,— as,  for  example,  the  fraudulent  obtaining  of  a  judgment 
at  law.  These  special  cases  will  be  considered  by  themselves.  With 
all  these  varieties  of  external  form,  actual  fraud  in  the  numberless 
agreements,  transactions,  and  dealings  of  mankind  may,  in  its  in- 
trinsic Mature,  be  reduced  to  two  essential  forms, — false  rejiresenta- 
tion  and  fraudulent  concealments, — suggestio  falsi  and  suppressio 
veri.  The  discussion  of  actual  fraud  mainly  consists,  therefore,  in 
analyzing  these  two  forms  and  in  determining  their  necessary  con- 
stituents. 

§876.  First*  Misrepresentation^. — A  misrepresentation,  in  or- 
der to  constitute  fraud,  must  contain  the  following  essential  ele- 
ments: 1.  Its  form  as  a  statement  of  fact;  2.  Its  purpose  of  in- 
ducing the  other  party  to  act ;  3.  Its  untruth ;  4.  The  knowledge 
or  belief  of  the  party  making  it;  5.  The  belief,  trust,  and  reliance 
of  the  one  to  whom  it  is  made ;  6.  Its  materiality.  These  elements 
will  be  examined  separately. 

§  877.  I.  The  Form — An  Affirmation  of  Fact. — A  misrepresen- 
tation must  be  an  affirmative  statement  or  affirmation  of  some  fact, 
in  contradistinction  to  a  concealment  or  failure  to  disclose,  and  to 
a  mere  expression  of  opinion.^  In  the  great  majority  of  instances 
it  is  made  by  means  of  language  written  or  spoken ;  but  it  may  con- 
sist of  conduct  alone,  of  external  acts,  when,  through  this  instru- 
mentality, it  is  intended  to  convey  the  impression,  or  to  produce 
tlie  conviction,  that  some  fact  exists,  and  such  result  is  a  natural 
consequence  of  the  acts.-  A  misrepresentation  of  the  law  is  not 
considered  as  amounting  to  fraud,  because,  as  it  is  generally  said, 

'Hough  V.  Richardson,  3  Story  659,  Fed.  Cas.  Xo.  6,722;  Perkins  v.  Part- 
ridge, 30  N.  J.  Eq.   82,   Shep.    171. 

Mt  was  so  held  in  Lovell  v.  Hicks,  2  Younge  &  C.  46,  where  fictitious  and 
fraudulent  experiments  were  performed,  so  as  to  induce  a  party  to  enter 
into  a  contract  concerning  a  patent  right.  The  point  is  also  illustrated  by 
Denny  v.  Hancock,  L.  R.  6  Ch.  1,  2  Keener  1)69,  although  tlie  decision  was 
vested  upon  misdescription  rather  tlian  fraudulent  misi-epresentation.  A  pur- 
chaser was  so  misled  as  to  their  boundaries,  by  the  appearance  of  the  grounds, 
that  the  contract  was  not  enforced.  This  was.  of  course,  a  mistake  of  his; 
but  the  mistake  consisted  of  his  obtaining  from  the  appearance  an  impression 
which  was  natural,  but  was  at  the  same  time  contrary  to  the  real  fact ;  the 
appearance  thus  operated  as  a  misdescription.  When  two  parties  have  made  an 
agreement,  and  in  reducing  it  to  writing,  one  of  them  knowingly  alters  it  in 
a  material  manner,  and  procures  the  other  to  execute  or  to  accept  the  writing 
in  ignorance  of  the  alteration,  this  conduct  is  fraud:  Rethell  v.  Betliell,  92 
ind.  318;  Kilmer  v.  Smith,  77  N.  Y.  226,  33  Am.  Rep.  613,  3  Keener  283. 


445  ACTUAL    FRAUD.  j^  878 

all  persons  are  presumed  to  know  the  law;  and  it  might  perhaps  be 
added  that  such  a  statement  would  rather  be  the  expression  of  an 
opinion  than  the  assertion  of  a  fact.^  A  statement  of  intention. 
merely  cannot  be  a  misrepresentation  amounting  to  fraud,  since  suol- 
a  statement  is  not  the  affirmation  of  any  external  fact,  but  is,  a1 
most,  only  an  assertion  that  a  present  mental  condition  or  opinion 
exists.*  That  the  fact,  however,  concerning  which  the  statement  is 
made  is  future  does  not  of  itself  prevent  the  misrepresentation  from 
being  fraudulent.  Tlie  statement  of  matter  in  the  future,  if  affirmed 
as  a  fact,  may  amount  to  a  fraudulent  misrepresentation,  as  well  as 
a  statement  of  a  fact  as  existing  at  present.^ 

§  878.  Misrepresentation  of  Matter  of  Opinion. — Since  the  very 
corner-stone  of  the  doctrine  is  that  the  statement  must  be  an  affirm- 
ation of  a  fact,  it  has  sometimes  been  said,  but  very  incorrectly, 
that  a  misrepresentation  cannot  be  made  of  a  matter  of  opini<m. 
The  true  rule  is,  that  a  fraudulent  misrepresentation  cannot  itself 
be  the  mere  expression  of  an  opinion  held  by  the  party  making  it. 
The  reason  is  very  simple :  while  the  person  addressed  has  a  right 
to  rely  on  any  assertion  of  a  fact,  he  has  no  right  to  rely  upon  the 
mere  expression  of  an  opinion  held  by  the  party  addressing  him. 
in  whatever  language  such  expression  be  made;  he  is  assumed  to  be 
equally  able  to  form  his  own  opinion,  and  to  come  to  a  correct  judg- 
ment in  respect  to  the  matter,  as  the  party  with  whom  he  is  deal- 
ing, and  cannot  justly  claim,  therefore,  to  have  been  misled  by  the 
opinion,  however  erroneous  it  may  have  been.^  For  this  reason, 
the  fjenernl  praise  of  his  own  wares  by  a  seller,  eommonh'-  called 
"puffing."  for  the  purpose  of  enhancing  them  in  the  buyer's  estima- 
tion, has  always  been  allowed,  provided  it  is  kept  within  reasonable 
limits;  that  is,  provided  the  praise  is  general,  and  the  language  is 
not  the  positive  affirmation  of  a  specific  fact  affecting  the  qualit.y, 

^Eaglesfiekl  v.  Marquis  of  Londonderry,  L.  Tv.  4  Ch.  Div.  693;  Abbott  v. 
Treat,  78  .Me.  121,  125,  3  Atl.  44;  Jaggar  v.  Winslow,  30  Minn.  263.  1.5  X.  W. 
242.     See  ante,  §  847. 

*  Grove  v.  Hodges,  55  Pa.  St.  504,  519;  Lawrence  v.  Gayetty,  78  Cal.  12G, 
20  Pac.  382,  12  Am.  St.  Rep.  29.  That  a  promise  made  with  the  intention  in 
the  mind  of  the  promisor  not  to  perform  mny  be  a  misrepresentation  of  a 
subsisting-  fact,  and  hence  a  fraud,  see  Edging-ton  v.  Fitzmaurice,  L.  R.  20 
Ch.  Div.  459:  Brison  v.  Prison,  75  Cal.  527.  17  Pac.  691,  7  Am.  St.  Rep.  189. 
In  Edgington  v.  Fitzmaurice  occurs  Lord  BoAven's  well-kno\\Ti  dictum  tlmt 
"the  state  of  a  man's  mind  is  as  much  a  fact  as  the  state  of  his  digestion.  It 
is  true  that  it  is  veiy  diiricult  to  ]irovo  what  the  state  of  a  man's  mind  at  a 
particular  time  is,  but  if  it  can  l)e  ascertained  it  is  as  much  a  fact  as  anything 
else." 

^'Piggott  v.  Stratton,  1  De  Gex.  F.  &  .T.  33.  49:  Lobdell  v.  Baker,  3  Met.  469. 

'.Tohnson  v.  National  B.  &  L.  Ass'n.  125  Ala.  405,  28  South.  2,  82  Am.  St. 
Rep.  257;  Suessenguth  v.  Bingcnheimer.  40  Wis.  370. 


§  S79  EQUITY    JL'RISPRUDEXCE.  446 

SO  as  to  be  an  express  warranty,  and  is  not  the  intentional  assertion 
of  a  specific  and  material  fact,  known  to  the  party  to  be  false,  so  as 
to  be  a  fraudulent  misrepresentation.-  The  foregoing  rule  as  to 
expressions  of  opinion  cannot  be  pushed  beyond  the  plain  reasons 
ui)on  which  it  rests.  Wherever  the  statement,  although  relating  to 
matter  of  opinion,  is  the  affirmation  of  a  fact,  it  may  be  a  fraudu- 
lent representation.  Such  an  affirmation  might  be  made  in  several 
forms.  The  very  fact  concerning  which  the  statement  is  made,  may 
be  the  existence  of  an  opinion.  The  existence  of  an  opinion  ma}^  be 
a  fact  material  to  the  proposed  transaction,  and  a  statement  that 
such  an  opinion  exists  becomes  an  affirmation  of  a  material  fact, 
and  if  untrue,  it  is  a  misrepresentation.  The  opinion  might  either 
be  represented  as  held  by  a  third  person  or  as  held  by  the  very 
party  making  the  statement.  As  a  single  illustration,  either  the 
third  person  or  the  party  himself  might  be  an  expert,  and  their 
opinion  might  be  material,  so  that  the  representation  that  the  opin- 
ion was  held  might  be  the  affirmation  of  a  most  material  fact.  There 
is  still  another  and  perhaps  more  common  form  of  such  misrep- 
resentation. Wherever  a  party  states  a  matter,  which  might  other- 
wise be  only  an  opinion,  and  does  not  state  it  as  tJie  mere  expression 
of  ]iis  oivii  Opinion,  but  affirms  it  as  an  existing  fact  material  to  the 
transaction,  so  that  the  other  party  may  reasonably  treat  it  as  a 
fact,  and  I'ely  and  act  upon  it  as  such,  then  the  statement  clearly 
becomes  an  affirmation  of  fact  within  the  meaning  of  the  general 
rule,  and  may  be  a  fraudulent  misrepresentation.  The  statements 
which  most  frequently  come  within  this  branch  of  the  rule  are 
those  concerning  value.  The  foregoing  distinctions,  which  I  have 
attempted  to  explain,  and  which  have  sometimes  been  lost  sight  of. 
will  go  far,  I  think,  to  harmonize  whatever  apparent  conflict  of 
decision  may  be  found  in  some  of  the  r('poi't(Ml  cases. "^ 

§  879.  II.  The  Purpose  for  Which  the  Representation  is  Made. 
— It  is  an  essential  requisite,  both  in  equity  and  at  law%  that  the 
representation,  whatever  be  its  form,  must  be  made  for  the  pur- 
pose and  with  the  design  of  procuring  the  other  party  to  act, — ■ 
of  inducing  him  to  enter  into  the  contract  or  engage  in  the  trans- 
action.^    It  must  therefore  be,  of  necessity,  preliminary  to  the  ae- 

=  Hunter  v.   :\IcLaughHn,   4,3    hid.   38. 

■'  Statements  involving  value  held  to  be  mere  ex])ressions  of  opinion :  South- 
ern Development  Co.  v.  Silve,  12.5  U.  S.  247.  8  Sup.  Ct.  881.  II.  &  B.  282: 
held  representations  of  fact:  Haygai-th  v.  Wearintr.  L.  R  12  Eq.  320,  327, 
32S;  Jordan  v.  Volkennincr,  72  X.  Y.  300.  300;  Perkins  v.  Partridge,  30  N.  J. 
J']q.  82,  Sh.  171.  U'ith  respect  to  matters  of  opinion  stated  as  facts,  or  stated 
as  a  fact  to  be  held  l)y  a  certain  person,  see  Wakeman  v.  Dalley,  51  N.  Y. 
27,    10   Am.   Rep.   551:    Ihnlbert  v.   Kelloog   Co..    115    Wis.   225.   01    N.    W.   673., 

^  A?,  to  representations  made  to  influence  tliiid  ])ersons,  see  San  Antonio 
Nat.  Bank  v.  Bamberger,  77  Tex.  48,  13  S.  \V.  959,  19  Am.  St.  Rep.  738. 


447  ACTUAL    FRAUD.  §  8 SO 

tual  conekision  of  the  transartioii,  and  in  tlie  great  majority  oi' 
instances  it  is  made  during  and  forms  a  part  of  a  negotiation  bc- 
tAveen  the  parties,  which  terminates  in  the  contract  or  other  transac- 
tion.- There  are,  however,  very  important  exceptions  to  this  genera! 
statement.  There  are  eases  where  the  misrepresentations  cannot  he 
said  to  form  a  part  of  any  negotiation  or  treaty  between  the  f)ar- 
ties.  The  false  statements  may  be  made  with  the  design  that  they 
should  be  acted  upon  by  some  one,  but  without  any  design  or  knowl- 
edge of  their  being  acted  upon  by  any  particular  person.  For 
example,  it  is  now  well  settled  that  prospectuses  issued  by  pi'o- 
moters  or  directors  of  companies,  reports  or  en-culars  and  similar 
publications  addressed  to  all  whom  it  may  concern,  may  be  fraud- 
ulent misrepresenations  giving  rise  to  any  appropriate  equitable  or 
even  legal  relief.-^  Such  being  the  object  of  the  representation,  it 
must  relate  to  and  be  directly  connected  with  the  very  contract 
or  other  transaction  in  question ;  must  deal  with  its  subject-matter 
or  other  material  terms,  and  not  be  confined  to  other  and  distinct 
relations,  transactions,  or  matters  in  which  the  i)arties  are  con- 
cerned. In  the  language  of  an  eminent  judge,  a  misrepresentation 
concerning  any  subject-matter  "must  be  material  in  its  nature. — 
that  is  to  say,  one  which,  taken  as  true,  would  add  substantially  to 
th.e  value  or  promise  of"  that  subject-matter.'* 

§  880.  Presumption  of  the  Design  to  Induce  Action.^In  order 
that  a  statement  may  be  a  fraudulent  misrepresentation,  the  party 
making  it  need  not  have  any  malignant  feeling  toAvards  the  other, 
nor  any  desire  to  injure,  nor  need  he  be  actuated  by  any  corrupt  or 
wicked  motive;  for  equity  looks  at  the  relations  of  the  statement 
towards  the  real  facts,  and  the  results  which  will  naturally  flow 
from  it,  rather  than  at  the  mental  condition,  temper,  and  feelings 
of  the  person  who  makes  it.^  If,  therefore,  a  representation 
made  prior  to  the  transaction,  and  directly  relating  to  it,  is  of  sudi 
a  character  that  it  would  naturally  and  reasonably  induce,  or 
tend  to  induce,  any  ordinary  person  to  act  upon  it,  and  enter  into 
the  contract  or  engage  in  the  transaction,  and  is  in  fact  followed 
by  such  action  on  the  part  of  the  other  person,  then  it  will  be 
presumed  that  it  was  made  for  the  purpose  and  with  the  design 
of  inducing  that  person  to  do  what  he  has  done, — that  is,  to 
enter  into  the  agreement  orengage  in  the  transaction.     The  design 

=  Harris  v.  Kenible,  1   Sim.   111.   122,  per  Sir  .Tolin   Lench. 

••Kiseh  V.  Cent.  Ry.  of  Vonezuola,  .3  De  Gex,  J.  &  S.  122.  I..  K.  2  II.  L.  90; 
Rohrschneidcr  v.  Knickcrhockpr  Ins.  Co..  Tfi  X.  Y.  2U>.  .12  .\iii.  V.o]).  200.  See 
post,    §881. 

'Jpiiniiitrs  V.  Brouo-htoli.  •")  Dc  nos.  M.  &  G.   120.  130.     See,  also,  §§890,  898. 

'Traill   V.   JJarinir.  4  De  (Jox,  .1.  &  S.  318,  320,  328. 


§  861  EQUITY    JLIUSPRUDENCE.  448 

will  be  inferred  from  the  uatural  and  necessary  consequences, - 
It  is  not  necessary  that  all  the  representations  by  -which  a  party 
is  induced  to  act  should  be  untrue.  The  cases  hold  that  where 
certain  statements  have  been  made  all  in  their  nature  capable, 
more  or  less,  of  leading  the  party  to  whom  they  are  addressed 
to  adopt  a  particular  line  of  conduct,  and  any  one  of  them  is 
untrue,  the  whole  contract  or  other  transaction  is  considered  as 
having  been  obtained  fraudulently;  the  court  cannot  discriminate 
among  the  different  statements,  nor  say  that  the  untrue  representa- 
tion is  not  the  very  one  which  induced  the  party  to  act.  The  fore- 
going general  proposition,  that  it  is  sufficient  if  the  statement 
is  of  such  a  character  as  would  naturally  induce  any  ordinary  per- 
son to  enter  upon  a  particular  line  of  conduct,  and  is  actually  fol- 
lowed by  such  conduct,  is  the  practical  rule  by  which  the  courts 
determine  whether  a  misrepresentation  possesses  the  particular 
element  of  fraud — the  purpose  or  design — now  under  considera- 
tion." 

§  881.  False  Prospectuses,  Reports,  Circulars,  and  the  Like. — The 
iiature  of  fraudulent  misrepresentations,  their  requisite  element  of 
being  designed  and  naturally  operating  to  induce  third  persons  to 
act,  and  other  important  features  are  so  fully  illustrated  by  the  rules 
concerning  the  effect  of  prospectuses,  circulars,  reports,  and  other 
similar  documents  issued  by  the  promoters,  directors,  or  officers  of 
corporations,  as  established  by  ver^-  recent  decisions,  that  a  brief 
statement  of  these  rules  may  be  proper.  I  do  not  intend  at  present 
to  consider  the  general  subject  of  the  relations  subsisting  between 
corporations,  or  their  directors  or  officers,  on  the  one  side  and  stock- 
holders, creditors,  or  third  persons  dealing  with  them  on  the  other, 
but  simplj"  to  give  the  conclusions  which  have  been  settled  by  the 
courts  concerning  the  effect  of  such  documents,  published  by  or  in 
the  name  of  the  companj-,  addressed  to  all  whom  they  may  con- 
cern, which  have  misled  third  persons,  and  induced  them  to  pur- 
chase shares  of  stock  in  the  corporation.  These  conclusions  ca'i- 
not  be  better  expressed  than  in  the  very  language  which  has  been 
used  by  eminent  judges:  "Those  Avho  issue  a  prospectus,  holding 
out  to  the  public  the  great  advantages  which  accrue  to  persons 
who  will  take  shares  in  a  proposed  undertaking,  and  inviting  them 
to  take  shares  on  the  faith  of  the  representations  therein  contained, 

-'Torrance  v.  Bolton,  L.  E.  8  Ch.  118,  14  Eq.  124;  National  Exch.  Co.  v.  Drew, 
2  Maoq.  10.3;  Reyneli  v.  .Spiye,  1  De  Gex,  M.  &  G.  660. 

^  It  may  be  observed  that  the  two  requisite  elements  of  a  fraudulent  misrep- 
resentation which  have  been  examined — that  the  representation  must  be  an 
aflirmation  of  fact,  and  the  design  of  inducing  the  other  party  to  act — are 
recognized  and  adopted  alike  by  courts  of  law  and  of  equity;  decisions  at  law 
may   therefore   be   properly   cited   to   illustrate   these   two    requisites    in   equity. 


449  ACTUAL    FRAUD.  §  881 

are  bound  to  state  everything  with  strict  and  scrupulous  accuracy. 
and  not  only  to  abstain  from  stating  as  fact  that  which  is  not  so. 
but  to  omit  no  one  fact  within  their  knowledge  the  existence  of 
which  might  in  any  degree  affect  the  nature,  or  extent,  or  cjuaiity 
of  the  privileges  or  advantages  which  the  prospectus  holds  out  as 
inducements  to  take  shares."^  "While  niei-e  exaggerated  views  of  the 
prospects  and  advantages  of  the  company  contained  in  a  pros- 
pectus, circular,  or  report  might  not  be  fraudulent,  still  all  vState- 
ments  should  be  fair,  bona  fide,  and  honest.-  "If  it  can  be  shown 
that  a  material  representation  which  is  not  true  is  contained  in 
the  prospectus,  or  in  any  document  forming  the  foundation  of  the 
contract  between  the  company  and  the  share-holder,  and  the  share- 
holder comes  within  a  reasonable  time,  and  under  proper  circum- 
stances, to  be  released  from  that  contract,  the  courts  are  bound  to 
relieve  him  from  it.  Contracts  of  this  description  between  an 
individual  and  a  company,  so  far  as  misrepresentation  or  suppres- 
sion of  the  truth  is  concerned,  are  to  be  treated  like  contracts 
between  any  two  individuals."^  It  is  settled,  therefore,  that  a 
person  who  has  been  induced  by  the  misrepresentations  of  such 
documents  to  purchase  shares  of  stock  or  to  enter  into  a  contract 
with  the  company  for  their  purchase  may,  if  he  acts  without  delay 
upon  learning  the  truth,  obtain  relief  against  the  company,  either 
by  being  struck  off  from  the  list  of  stockholders  and  contributaries 
in  the  proceeding  instituted  for  its  winding  up  and  final  settlement, 
or  by  means  of  an  equitable  suit  brought  against  the  company 
for  the  purpose  of  rescinding  his  purchase  or  shares,  and  of  recover- 
ir;g  back  the  money  which  he  paid  for  them.  He  may  even,  in  a 
proper  case,  obtain  relief  against  the  fraudulent  directors  person- 
ally by  means  of  an  equitable  suit  for  an  accounting  and  repay- 
ment of  the  money,  or  by  means  of  an  action  at  law  for  the  re- 
covery of  damages  on  account  of  the  deceit.*  Relief  against  the 
directors  personally  requires  a  much  stronger  case  of  fraud  than 
relief  against  the  company.  The  purchase  of  shares  may  be  set 
aside,  and  the  purchaser  relieved  from  his  liability  as  a  contribu- 
tory, Avithout  any  knoMdedge  of  the  untruth  on  the  part  of  those 
who  issued  the  document.     Recovery  from  the  directors  personalh' 

^Xpw  Brunswick,  etc..  Pv'y  v.  :Mu,n:jreridore.  1  Drew.  &  S.  .'^03.  .381.  per 
Kindersley,  V.  C. 

-Kisch  V.  Cent.  Ry.  of  Von..  .3  Dp  (lo\.  J.  &  S.  122.  135.  por  Tiirnpr.  L.  .T. : 
Denton  v.  Macneil.  L.  Pv.  2  Eq.  352. 

Mn  re  Reese  River  Mining  Co.,  L.  R.  2  Ch.  004,  009,  per  Turner.  L.  J. 

*See  cases  in  last  three  notes:  Peek  v.  Gurney.  L.  R.  13  Eq.  79;  Mulliol- 
land  V.  Washington  Match  Co.  (Wash.),  77  Pac.  407.  Relief  refused  on  <T,ound 
that  representations,  being  simply  exaggerations,  were  not  fraudulent;  Denton 
V.   Macneil,   L.   R.   2  Eq.   3.52. 

20  - 


§  884  EQUITY    JURISPRUDENCE.  450 

requires  knowledge  of  the  imtruth  on  their  part,  or  else  that  the 
statement  should  be  made  under  such  circumstances  that  knowledge 
will  be  imputed  to  them.^  It  is  also  settled  that  the  stockholder 
must  take  the  requisite  proceedings  to  be  relieved  against  the 
company  at  once  upon  his  discovery  of  the  truth;  any  unreasonable 
delay,  and  any  act  on  his  part  tending  to  show  acquiescence,  will 
debar  him  of  relief.*' 

§882.  III.  Untruth  of  the  Statement.— The  statement  of  fact 
must  be  untrue,  or  else  there  is  no  laisrepresentation.  The  entire 
doctrine  of  the  law  and  of  equity  concerning  that  species  of  fraud 
which  consists  in  suggestio  falsi  is  based  upon  the  assumption  that 
the  representation  is  in  fact  untrue,  as  this  very  name  itself  shows. 
This  is  the  premise  of  fact  which  is  assumed  in  every  case  which 
discusses  the  nature  of  fraud,  and  decides  whether  it  does  or  does 
not  exist  in  any  particular  instance.  This  requisite  element  needs, 
therefore,  no  examination  and  no  citation  of  special  authorities; 
it   is  not   susceptible   of   any   exception    or  limitation. 

§  883.  IV.  The  Intention,  Knowledge,  or  Belief  of  the  Party 
Making  the  Statement. — This  element — the  mental  state  or  condi- 
tion of  the  party  making  the  representation— is  the  most  important 
and  characteristic  feature  of  fraud,  both  in  equity  and  at  law. 
It  is,  moreover,  that  constitutent  of  fraud  with  respect  to  which 
there  exists  the  principal  difference  or  divergence  between  the 
theory  wdiich  prevails  in  equity  and  that  which  forms  a  part  of  the 
law.  It  will  aid  us,  therefore,  in  obtaining  a  more  accurate  notion 
of  the  equitable  conception  by  comparison,  to  present  a  very  brief 
summary  of  the  doctrine  on  this  subject  which  has  been  settled  by 
courts  of  law. 

§  884.  The  Knowledge  and  Fraudulent  Intention  Requisite  at 
at  Law.  .  ,  .  It  is  now  a  settled  doctrine  of  the  law  that  there 
can  be  no  fraud,  misrepresentation,  or  concealment  without  some 
moral  delinquency;  there  is  no  actual  legal  fraud  which  is  not  also 
a  moral  fraud. ^  This  immoral  element  consists  in  the  necessary 
guilty  knowledge  and  consequent  intent  to  deceive, — sometimes 
designated  by  the  technical  term,  the  scienter.  The  very  essence 
of  the  legal  conception  is  the  fraudulent  intention  flowing  from 
the  guilty  know^ledge.  No  misrepresentation  is  fraudulent  at  law. 
unless  it   is  made  with  actual   knowledge  of  its  falsity,   or  under 

=  Carfjill  V.  Bowor.  L.  R.  10  Ch.  T).  ri02 :  Tlnbbnrd  v.  Won  re.  70  Towa  078, 
44   N.    W.   015.      See  post,   note  to   §  SS4. 

"Peek  \.  (^nrney.  L.  R.  13  Eq.  70:  Riirsress's  Case.  L.  R.  15  Ch.  D.  507; 
Karherjj's;   (^ase    (1802).  3  Ch.   1    (no  laches).     See.  also,   §§917.  065. 

'Onniod  V.  Hnth.  14  Mees.  c^-  W.  650:  Roddy  v.  Heniy,  113  Iowa  462.  85 
N.  W.  771,  53  L.  R;  A.  760:  Wakeiiian  v.  Dalley,  51  N.  Y.  27,  10  Am.  Rep.  .551. 


451  ACTUAL    IKAUU.  §  S8-i 

such  circumstances  that  the  law  must  necessarily  impute  such 
knowledge  to  the  party  at  the  time  when  he  makes  it.  It  is  well 
settled  that  fraudulent  misrepresentations  may  assume  the  three 
lollowing-  forms  or  phases  at  law:  1.  A  part}^  making  an  untrue 
statement  has  at  the  time  an  actual,  positive  knowledge  of  ity 
falsity;  he  states  what  he  absolutely  knows  to  be  untrue.  This 
is  the  simplest,  plainest,  and  most  direct  species  of  fraud.  2.  A 
jnirty  making  an  untrue  statement  does  not  at  the  time  have 
any  belief  that  it  is  true.-  The  making  an  untrue  statement, 
of  the  truth  of  which  the  party  of  course  has  no  knowledge,  and 
which  he  does  not  even  believe  to  be  true,  is  tantamount  to  the 
making  of  a  statement  which  the  party  knows  to  be  untrue.  3. 
Finally-,  a  party  making  an  untrue  statement,  having  at  the  time 
no  knowledge  whatever  on  the  subject,  and  no  reasonable  grounds 
to  Jtrliere  it  to  he  true,  is  guilty  of  fraud,  and  his  claiming  that  he 
believed  it  to  be  true  cannot  remove  its  fraudulent  character.  A 
definite  statement  of  what  the  party  does  not  know  to  be  true, 
where  he  has  no  reasonable  grounds  for  believing  it  to  be  true, 
Avill,  if  false,  have  the  same  legal  effect  as  a  statement  of  what  the 
party  positively  knows  to  be  untrue.^    In  each  of  these  three  phases 

Mliley  v.  Bell,  120  Iowa  618,  95  N.  W.  170. 

=  Taylor  v.  Ashton,  11  Mees.  &  W.  401;  Onnrod  v.  Huth,  14  Mees.  &  W.  650. 
This  third  rule  of  the  text,  at  one  time  supposed  to  be  Avell  established,  was 
overturned  in  the  ease  of  Deny  v.  Peek,  14  App.  Cas.  (H.  L. )  337,  reversing 
Peek  V.  Derry,  37  Ch.  Div.  541;  followed  in  Angus  v.  Clifford  (1891),  2  Ch. 
440:  Low  v.  Boiivorie  (1891),  3  Ch.  82,  1  Scott  565  (holding  that  Derry  v. 
I'eek  did  not  touch  the  law  of  estoppel).  The  house  of  lords,  in  Deny  v.  Peek, 
14  App.  Cas.  (H.  L.)  337.  v.nanimously  held  that  the  absence  of  reasonable 
grounds  for  belief,  while  it  may  be  evidence  of  a  fraudulent  intent,  does  not, 
of  itself,  constitute  such  fraud  as  will  justify  an  action  for  damages  either 
at  law  or  in  equity.  Lord  P)rnmwell  remarks  (p.  351)  :  "To  believe  witliout 
reasonable  grounds  is  not  moral  culpability,  but  (if  there  is  such  a  thing) 
mental  culpability."  Lord  Herschell.  who  delivered  the  leading  opinion,  sums 
Uji  (p.  374)  :  "First,  in  order  to  sustain  an  action  of  deceit,  there  must  be 
]iroof  of  fraud,  and  nothing  short  of  it  will  suffice.  Secondly,  fraud  is  proved 
when  it  is  shoAvn  that  a  false  representation  has  been  made  (1)  knowingly, 
or  (2)  without  belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be 
ti-ue  or  false.  Althoiigh  I  have  treated  the  second  and  third  as  distinct  cases, 
I  lliink  the  third  is  but  an  instance  of  the  second,  for  one  who  makes  a  state- 
ment under  such  circumstances  can  have  no  real  belief  in  the  truth  of  what 
he  states.  To  prevent  a  false  statement  being  fraudulent,  there  must,  I  think, 
always  be  an  honest  belief  in  ils  truth."  The  decision,  though,  of  course, 
binding  on  English  courts,  has  l)een  most  severely  criticised  both  in  England 
and  in  this  country:  see  especially  an  article  by  Sir  Frederick  Pollock  in  5 
Law  Quarterly  Review,  410.  The  disastrous  effects  anticipated  from  the 
decision,  as  far  as  com]iany  dii'ectors  and  promoters  issuing  a  prospectus  are 
concerned,  were  promi)lly. averted  by  the  Directors'  Liability  Act  of  1890.  See, 
also,  Nash  v.  Minnesota,  etc.,  Co.,  163  Mass.  574,  47  Am.  St.  Rep.  489,  40 
N.   E.   1039.  28   L.  R.   A.   753. 


§880  Ec^uiTY  jLiMsj'KrDKXci:.  452 

there  is  a  moral  wrong,  and  a  very  slight,  if  any,  difference  in  the 
degree  of  the  culpability.  In  each  there  is  actual  knowledge  of  the 
untruth,  or  else  the  law  conclusively  imputes  knowledge  to  the 
j)arty.  and  treats  him  as  though  actually  possessing  it. 

§  885.  Knowledge  or  Intention  Requisite  in  Equity. — There  are 
undoubtedly  some  authorities  which,  taken  literally,  would  make 
moral  wrong  a  necessary  ingredient  of  fraud  in  equity  as  well  as 
at  law,  since  they  require  a  guilty  knowledge  of  the  untruth  as  an 
essential  element.  This  view  is,  however,  certainly  incorrect.  It 
is  fully  settled  by  the  ablest  courts,  English  and  American,  that 
there  may  be  actual  fraud — not  merely  constructive  fraud — in 
equity  without  any  feature  or  incident  of  moral  culpability;  that 
the  actual  fraud  consisting  of  misrepresentation  is  not  necessarily 
immoral.  A  person  making  an  untrue  statement,  without  knowing 
or  believing  it  to  be  untrue,  and  without  any  intent  to  deceive, 
may  be  chargeable  wnth  actual  fraud  in  equity.^  Whatever  would 
be  fraudulent  at  law  wnll  be  so  in  equity;  but  the  equitable  doctrine 
goes  farther,  and  includes  instances  of  fraudulent  misrepresentations 
Avhicli  do  not  exist  in  the  law.  There  are,  however,  well-established 
limits  to  this  equitable  conception,  which  should  be  carefuly  ob- 
served. Every  wrongful  act,  even  by  persons  in  positions  of  trust 
and  confidence,  which  gives  occasion  for  a  remedy  is  not  fraudulent. 
Breaches  of  their  duty  by  persons  in  fiduciary  relations,  acts  of 
agents  in  excess  of  their  authoi'ily,  and  the  like,  are  not,  as  such, 
instances  of  actual  fraud,  although  they  may  sometimes  fall  wnthin 
the  division  of  "constructive  fraud."-  I  shall,  in  further  illustration 
of  this  subject,  enumerate  and  describe  the  different  phases  and 
forms  of  fraudulent  misrepresentations  recognized  by  equity,  some 
of  them  being  identical  with  those  found  in  the  law. 

§886.  Forms  of  Fraudulent  Misrepresentations  in  Equity, — 1. 
AVhere  a  party  makes  a  statement  which  is  untrue,  and  has  at 
the  time  an  actual,  positive  knowledge  of  its  untruth,  and  the  neces- 
sarily resulting  intent  to  deceive, — the  scienter  at  law.  This  is  the 
most   direct,    and    in    some  respects   the   highest   form    of   fraud. ^ 

Deny  v.  Peek  has,  of  course,  failed  to  receive  universal  recognition  in  this 
country;  thiis,  in  Gidding';  v.  Baker,  80  Tex.  308,  16  S.  W.  33,  it  was  held  tliat. 
a  party  making  false  representations  is  liable  at  law  if,  by  the  exercise  of 
ordinary  diligence  he  could  have  kno\\Ti  that  his  statement  was  not  true.  See, 
also,  Bullitt  V.  Farrar,  42  Minn.  8,  43  N.  W.  .5f)fi,  18  Am.  St.  Rep.  485,  6  L.  R. 
A.   149, 

^Traill  v.  Baring,  4  De  Gex,  J.  &  S.  318.  328;  Potter's  Appeal,  .56  Conn.  1, 
12   Atl.   513,  7   Am.   St.   Rep,   272, 

^Stewart  v.  Austin,  L.  R.  3  Eq.  200,  306.  liolding  thnt  an  act  in  excess 
of  authority  by  an  agent  is  not  equital)le  fi.iud. 

'Patch  V.  Ward,  L.  R.  3  Ch.  203,  207;  Smith  v!  Richards,  13  Pet.  26,  36. 
3    Keener  525,  2   Scott    652. 


453  ACTUAL    FKAUD.  §  888 

Wherever  the  facts  of  the  statement  are  the  acts  of  the  very  paity 
niakiug  it,  which  are  represented  as  having  been  done  by  him, 
if  the  statement  is  untrue,  the  knowledge  of  its  untruth  is  neces- 
sarily and  conclusively  imputed  to  the  party.  In  all  cases  involving 
such  kind  of  misrepresentation,  if  knowledge  of  the  untruth  be  a 
requisite  element  of  the  liability,  such  knowledge  will  be  conclusive- 
ly presumed.-  ...  2.  If  a  person  makes  an  untrue  statement,  and 
has  at  the  time  no  knowledge  of  its  truth,  and  even  has  no  belief 
in  its  truth,  he  is  chargeable  with  fraud  in  ecjuity  as  well  as 
in  law.  Making  a  statement  which  the  party  does  not  believe 
to  be  true  is  only  slightly  removed  in  culpability  from  the  making 
a  statement  which  the  party  knows  to  be  false.'* 

§  887.  The  Same. — 3.  Where  a  person  makes  an  untrue  state- 
ment, and  has  at  the  time  no  knowledge  of  its  truth,  and  there 
are  no  reasonable  grounds  for  his  believing  it  to  be  true,  he  is 
chargeable  with  fraud,  although  he  had  no  absolute  knowledge 
of  its  untruth,  and  may  claim  to  have  had  a  belief  in  its  truth. ^ 
This  is  the  mode  in  which  the  rule  is  ordinarily  laid  down  by  courts 
of  law,  and  sometimes  by  courts  of  equity.  The  equity  cases  have, 
however,  settled  the  rule  in  somewhat  broader  terms,  omitting 
entirely  the  qualification  ^'that  there  are  no  reasonable  grounds 
for  the  person's  believing  his  statement  to  be  true."  In  other 
words,  it  is  settled  in  equity  by  an  overwhelming  array  of  author- 
ity that  where  a  person  makes  a  statement  of  fact,  which  is  actuallj^ 
untrue,  and  he  has  at  the  time  no  knowledge  whatever  of  the  mat- 
ter, he  is  chargeable  with  fraud,  and  his  claim  to  have  believed 
in  tlie  truth  of  his  statement  cannot  be  regarded  as  at  all  material. 
The  definite  assertion  of  something  which  is  untrue,  concerning 
which  the  party  has  no  knowledge  at  all,  is  tantamount  in  its  effects 
to  the  assertion  of  something  which  the  party  knows  to  be  untrue.- 

§888.  The  Same. — 4.  Where  a  person  makes  a  statement  of  fact 
which  is  untrue,  but  at  the  time  of  making  it  he  honestly  believes 
it  to  be  true,  and  this  belief  is  based  upon  reasonable  grounds  which 
actually  exist,  the  misrepresentation  so  made  is  not  fraudulent 
(Mther  in  equity  or  at  law.^  This  general  proposition  is  subject, 
however,   to  the  two   following  important  limitations:    5.   W'here 

=  Henderson  v.  Laeon,  L.  E.  5  Eq.  249,  262. 

=>  Cabot  V.  Christie,  42  Vt.  121.  1  Am.  Eep.  313;  Fisher  v.  Mellen.  103  ^lass. 
.503   (asserting  as  fact  known  to  the  party  what  is  only  opinion). 

'Jennings  v.  Broughton,  5  Do  Ge\,  M.  &  G.  12fi.  K^O :  Sontlicrn  Dcvclopiiiont 
Co.  V.  Silva.  125  V.  S.  247.  R  Snp.  Ct.  881.  H.  &  T5.  282. 

-Eawlins  v.  Wickham,  3  De  Hex  &  J.  304;  Pnlsford  v.  Ricliards.  17  Beav. 
87.  !)4,  2  Scott  001  :  Smith  v.  Richards.  13  Pet.  20.  2  Scott  0.52.  3  Keener  52.5. 

'Wakeman  v.  Dalley,  51  N.  Y.  27,  10  Am.  Rep.  551;  Marsh  v.  Falker,  40 
N.  Y.  502,  500. 


§  889  EQUITY   JLTRISPRUDEXCE.  454 

such  au  untrue  statement  is  made  in  the  honest  belief  of  its 
truth,  so  that  it  is  the  result  of  an  innocent  error,  and  the  truth 
is  afterwards  discovered  by  the  person  who  has  innocently  made 
the  incorrect  representation,  if  he  then  sutlers  the  other  party 
to  continue  in  error,  and  to  act  on  the  belief  that  no  mistake  has 
been  made,  this,  from  the  time  of  the  discovery,  becomes,  in 
equity,  a  fraudulent  representation,  even  though  it  was  not  so  origi- 
nally.- 6.  Finally,  if  a  statement  of  fact,  actually  untrue,  is  made 
by  a  person  who  honestly  believes  it  to  be  true,  but  under  such 
circumstances  that  the  duty  of  knowing  the  truth  rests  upon  him, 
which,  if  fultilled.  would  have  prevented  him  from  making  the  state- 
ment, such  misrepresentation  may  be  fraudulent  in  equity,  and  the 
person  answerable  as  for  fraud;  forgetfulness,  ignorance,  mistake, 
cannot  avail  to  overcome  the  pre-existing  duiij  of  knowing  and 
telling  the  truth. ■• 

§  889.  Requisites  of  a  Misrepresentation  as  a  Defense  to  the  Spe- 
cific Enforcement  of  Contracts  in  Equity. — In  setting  up  a  material 
misrepresentation  to  defeat  the  specific  perfornumce  of  a  contract, 
the  element  of  a  scienter,  of  knowledge,  of  belief  with  or  without 
reasonable  grounds,  or  of  intent,  is  wholly  unnecessary  and  im- 
material. So  far  as  this  most  essential  element  of  a  fraudulent 
misrepresentation  is  concerned,  it  is  sufficient  to  defeat  a  specific 
performance  that  the  statement  is  actually  untrue  so  as  to  mislead 
the  party  to  whom  it  is  addressed;  the  party  making  it  need  not 
know  of  its  falsity,  nor  have  any  intent  to  deceive;  nor  does  his 
belief  in  its  truth  make  any  difference.  With  respect  to  its  effect 
upon  the  specific  performance  of  a  contract,  a  party  making  a 
statement  as  true,  however  honestly,  for  the  purpose  of  influencing 
the  eonduct  of  the  other  party,  is  bound  to  know  that  it  is  true, 
and  must  stand  or  fall  by  his  representation.^  The  point  upon  which 
the  defense  turns  is  the  foci  of  the  other  party  having  been  misled 
by  a  representation  calculated  to  mislead  him,  and  not  the  existence 
of  a  design  to  thus  mislead.  It  follows  as  a  plain  consequence 
of  this  general  doctrine  that  if  a  party  makes  a  misrepresentation, 
whereby  another  is  induced  to  enter  into  an  agreement,  he  cannot 
escape  from  its  effects  by  alleging  his  forgetfulness  at  the  time  of 

-Traill  v.  IJarini;.  4  De  Gex,  J.  &  S.  .318.  :V20.  .3:!0,  per  Turner.  L.  J.  Rescission 
for  innocent  misrepresentations,  believed  by  llif  ]iarty  wlio  was  induced  by  them 
to  act,  is  tantamount  to  rescission  for  mutual  mistake,  and  is  freely  granted; 
see,  for  example.  Weise  v.  (irove,   (Iowa)   09  N.  W.  191,  and  cases  cited. 

•' Burrowes  v.  Locke.  10  Ves.  470.  47.1,  1  Scott  o.59 :  Traill  v.  Baring.  4  P** 
Gex,  .).  &.  S.  .318.  829.  330:  I'rewilt  v.  Triml)l(-.  92  Ky.  170.  36  Am.  St.  hep. 
580,  17  S.  W.  3r)6.  H.  &  B.  2S7. 

'Wall  V.  Stubbs,  1  Madd.  80.  1  Ames  Eq.  -hir.  302,  2  Scott  239:  Ponnybackcr 
V.  Laidley,  33   W .   Va.  024,  li   S.  E.  39;   Holmes'  App.   77  Pa.   St.  50,  Sh.   100. 


4rir)  ACTUAL    FRAUD.  ji  SiJl 

the  actual  i'acts.-  Where  the  misrepresentation  does  not  extend 
to  the  entire  scope  of  the  agreement,  or  even  to  any  one  of  its 
most  important  parts,  but  relates  merely  to  some  incidental,  subordi- 
nate, or  collateral  feature  of  it,  the  court,  instead  of  denyint;^ 
all  relief  to  the  plaintift',  may  direct  a  specific  performance,  with 
an  abatement  of  the  price,  or  other  form  of  compensation,  to  the 
defendant.  Of  course,  when  the  representation  is  so  coupled  with 
knowledge,  or  want  of  belief,  or  intent,  as  to  constitute  actual 
fraud  in  any  of  its  phases,  it  will  a  fortiori  defeat  the  remedy  of 
specific  performance. 

§890.  V.  Effect  of  the  Representation  on  the  Party  to  Whom 
It  is  Made — His  Reliance  upon  it. — Another  element  of  a  fraudulent 
3nisrepresentation,  without  which  there  can  be  no  remedy-,  legal  or 
equitable,  is,  that  it  must  be  relied  upon  by  the  party  to  whom 
it  is  made,  and  must  be  an  immediate  cause  of  his  conduct  which 
alters  his  legal  relations.  Fnless  an  untrue  statement  is  believed 
and  acted  upon,  it  can  occasion  no  legal  injury.  It  is  essential, 
therefore,  that  the  party  addressed  should  trust  the  reprecentation, 
and  be  so  thorough]}^  induced  by  it  that,  judging  from  the  ordinary 
experience  of  manlvind,  in  the  absence  of  it  he  would  not,  in  all 
reasonable  probability,  have  entered  into  the  contract  or  other 
transaction.^  It  is  not  necessary  that  the  false  representation  should 
be  the  sole  inducement;  others  may  concur  with  it  in  influencing 
the  party.  Where  several  representations  have  been  made,  and 
one  of  them  is  false,  the  court  has  no  means  of  determining,  as 
was  well  said  by  Lord  Cranworth,  that  this  very  one  did  not  turn 
the  scale.-  The  misrepresentations  must,  however,  be  concerning 
something  really  material.  Statements,  although  false,  respecting 
matters  utterly  trifling,  which  cannot  affect  the  value  or  character 
of  the  subject-matter,  so  that  if  the  truth  had  been  known  the 
party  would  not  probably  have  altered  his  conduct,  are  not  an 
occasion  for  the  interposition  of  equity." 

§  891.  The  Party  must  be  Justified  in  Relying  on  the  Representa- 
tion,— The  foregoing  requisite,  that  the  representation  must  be  relied 
upon,  plainly  includes  the  supposition  that  the  party  is  justified, 
under  all  the  circumstances,  in  thus  relying  upon  it.     This  branch 

=  Burrowes  v.  Locke,  10  Ves.  470,  47G,  1  tScott  559;  Trice  v.  Macaulay,  2  De  Cex, 
M.  &  Li.  3.39.  The  same  is  true  in  suits  for  rescission  and  other  relief  based 
upon  actual  fraud. 

'Attwood  V.  Small,  G  Clark  &  F.  2.32,  447:  Pulsford  v.  Richards,  17  Beav. 
87.  96,  2  Scott  661;  Slaughter's  Adm'r.  v.  Gerson,  13  Wall.  379,  2  Scott  721; 
Hicks  V.  Stevens,  121  111.  180,  11  N.  E.  241,  H.  &  B.  273,  3  Keener  GW. 

=  See  ante,  §  880;  Reynell  v.  Sprye,  1  De  Gex,  M.  &  G.  660,  708.  709;  Hicks  v. 
Stevens,  121  111.  ISO,  11  X.  E.  241.  H.  &  B.  273,  3  Keener  Ol."). 

*Percival  v.  Harger,  40  Iowa  280.     See,  also,  SS  879,  898. 


§  891  EQUITY    JUKLSrEUDEXCE.  456 

(/f  the  rule  presents  by  far  the  greatest  practical  difficulties  in 
the  decision  of  cases,  because,  although  the  rule  is  well  settled, 
and  is  most  clearly  just,  its  application  must  depend  upon  the  facts 
of  each  particular  case,  and  upon  evidence  which  is  often  obscure 
and  conflicting.  In  determining  the  etfect  of  a  reliance  upon  repre- 
sentations, it  is  most  important  to  ascertain,  in  the  first  place, 
whether  the  statement  was  such  that  the  party  was  justified  in  rely- 
ing upon  it,  or  was  such,  on  the  other  hand,  that  he  was  hound 
to  inquire  and  examine  into  its  correctness  himself.  In  respect  to 
this  alternative,  there  is  a  broad  distinction  between  statements 
of  fact  which  really  form  a  part  of,  or  are  essentially  connected 
Avith,  the  substance  of  the  transaction,  and  representations  whicli 
are  mere  expressions  of  opinion,  hope,  or  expectation,  or  are  mere 
ueneral  commendations.  It  may  be  laid  doAvn  as  a  general  propo- 
sition that  where  the  statements  are  of  the  first  kind,  and  especially 
where  they  are  concerning  matters  which,  from  their  nature  or 
situation,  may  be  assumed  to  be  within  the  knowledge  or  under 
the  power  of  the  party  making  the  representation,  the  party  to 
whom  it  is  made  has  a  right  to  rely  on  them,  he  is  justified  in  rely- 
ing on  them,  and  in  the  absence  of  any  knowledge  of  his  own,  or  of 
any  facts  which  should  arouse  suspicion  and  cast  doubt  upon  the 
truth  of  the  statements,  he  is  not  bound  to  make  inquiries  and 
examination  for  himself.  It  does  not,  under  such  circumstances, 
lif  in  the  mouth  of  the  person  asserting  the  fact  to  object  or  com- 
plain because  the  other  took  him  at  his  word;  if  he  claims  that 
the  other  party  was  not  misled,  he  is  bound  to  show  clearly  that 
such  party  did  know  the  real  facts;  the  burden  is  on  him  of  re- 
moving the  presumption  that  such  party  relied  and  acted  upon  his 
statements.^  The  rule  is  equally  well  settled  with  respect  to  the 
.second  alternative.  Where  the  representation  consists  of  general 
commendations,  or  mere  expressions  of  opinion,  hope,  expectation, 
and  the  like,  and  where  it  relates  to  matters  which,  from  their  na- 
ture, situation,  or  time,  cannot  be  supposed  to  be  within  the  knowl- 
edge or  under  the  power  of  the  party  making  the  statement,  the 
party  to  whom  it  is  made  is  not  justified  in  relying  upon  it  and 
assuming  it  to  be  true;  he  is  bound  to  make  inquiry  and  examina- 
tion for  himself  so  as  to  ascertain  the  truth;  and  in  the  absence  of 
evidence,  it  wnll  be  presumed  that  he  has  done  so,  and  acted  upon 
the  result  of  his  own  inquiry  and  examination."    Any  representa- 

'  Dyer  v.  Hargrave,  10  Ves.  505,  1  Ames  Eq.  Jur.  245;  Wall  v.  Stubbs,  1 
Madd.  80,  1  Ames  Eq.  Jur.  362,  2  Scott  239;  Hicks  v.  Stevens,  121  111.  186,  11  N. 
E.  241,  H.  &  B.  273,  3  Keener  615;  and  especially  Redovave  v.  Ilind,  L.  R.  20 
Ch.  Div.  1,  13,  14  et  seq.,  2  Keener  896,  Sh.  173. 

-  Trower  v.  Newcome,  3  ]\Ier.  704,  2  Scott  238,  1  Ames  Eq.  Jur.  P,')2,  2  Keener 


457  ACTUAL    riJAL'D.  j  M'-i 

tion,  in  order  that  one  may  be  justified  in  lelyiug  upon  it,  must 
be,  in  some  degree  at  least,  reasonable;  at  all  events,  it  must  not  be 
so  selt'-eoutradietory  or  absurd  that  no  reasonable  man  could  believe 
it.  It  must  not,  also,  be  so  vague  and  general  in  its  terms  that  it 
conveys  no  certain  meaning.'' 

§  892.  When  He  is  or  is  not  Justified  in  Relying. — As  a  generali- 
zation from  the  authorities,  the  various  conditions  of  fact  and 
circumstance  with  respect  to  the  question  how  far  a  party  is  justi- 
fied in  relying  upon  the  representation  made  to  him  may  be  reduced 
to  the  four  following  cases,  in  the  first  tlii'ce  of  which  the  pai-ly  is 
not.  while  in  the  fourth  he  is,  justified  in  relying  upon  the  state- 
ments which  are  offered  as  inducements  for  him  to  enter  upon  cer- 
tain conduct.  1.  "When,  before  entering  into  the  contract  or  other 
transaction,  he  actually  resorts  to  the  proper  means  of  ascertain- 
in.g  the  truth  and  verifying  the  statement ;  2.  When,  having  the 
opportunity  of  making  such  examination,  he  is  charged  with  the 
knowledge  which  he  necessarily  would  have  obtained  if  he  had 
prosecuted  it  with  diligence;  3.  When  the  representation  is  con- 
cerning  generalities  equally  within  the  knowledge  or  the  means 
of  acquiring  knowledge  possessed  by  other  parties;  4.  But  when 
the  representation  is  concerning  facts  of  wdiich  the  party  making  it 
has,  or  is  supposed  to  have,  knowledge,  and  the  other  party  has 
no  such  advantage,  and  the  circumstances  are  not  those  described 
in  the  first  or  the  second  case,  then  it  will  be  presumed  that  he 
relied  on  the  statement;  he  is  justified  in  doing  so.^ 

§  893.  Information  or  Means  of  Obtaining  Information  Possessed 
by  the  Party  Receiving  the  Representation. — I  purpose  to  examiiu' 
under  this  head  the  first  two  cases  mentioned  in  the  foregoing  sum- 
mary; they  are  the  ones  which  present  by  far  the  greatest  practical 
difficulties  in  the  administration  of  justice.  If.  after  a  representa- 
tion of  fact,  however  positive,  the  party  to  whom  it  was  made  insti- 
tutes an  inquiry  for  himself,  has  recourse  to  the  proper  means  nl" 
obtaining  information,  and  actually  learns  the  real  facts,  he  cannot 

882:  Scott  v.  Hansou,  1  Sim.  13,  1  Russ.  &  M.  128,  2  Keener  887,  1  Ames  Eq. 
.hir.  o.i;],  2  IScott  240;  Southern  Development  Co.  v.  Silva,  125  U.  S.  247.  S 
Sup.  C't.  881,  H.  &  B.  282. 

■  Trower  v.  Newcome,  3  Mer.  704,  1  Ames  Va[.  Jur.  352,  2  Keener  882,  2 
Scott  2;?S. 

M'lapham  v.  Shillito,  7  Beav.  140,  140,  150.  The  author's  classificalioii  is 
quoted  in  Farnswortli  v.  Dutfner,  142  U.  S.  43,  12  Sup.  Ct.  164,  3  Keener  (121 
by  Mr.  Justice  BrcAver.  The  third  and  fourth  cases  in  the  text  above  are  dis- 
cussed in  the  preceding  paragraph  (S  801).  'i'he  first  and  second  are  in  rciilily 
only  one:  they  involve  the  same  juiiiciplc,  and  the  only  difTerence  between  tlicin 
is  in  tlie  mode  of  proof — a  ff^ct  being  direct  ly  proved  by  direct  evidence  in  the 
first,  which  is  irresistibly  inferred   by  a   legal   presumption   in  the  second. 


§  894  EQUITY    JURISPRUDENCE.  458 

claim  to  have  relied  iii)Oii  the  misrepresentation  and  to  have  been 
misled  by  it.  Such  claim  would  simpl^^  be  untrue.  The  same  re- 
sult must  plainly  follow  when,  after  the  representation,  the  party 
receiving  it  has  given  to  him  a  sufficient  opportunity  of  examining 
into  the  real  facts,  when  his  attention  is  directed  to  the  sources 
of  information,  and  he  commences,  or  purports  or  professes  to  com- 
mence, an  investigation.  The  plainest  motives  of  expediency  and  of 
justice  require  that  he  should  be  charged  with  all  the  knowledge 
which  he  might  have  obtained  had  he  pursued  the  inquiry  to  the 
end  with  diligence  and  completeness.  He  cannot  claim  that  he  did 
not  learn  the  truth,  and  that  he  was  misled.^ 

§894.  Knowledge  Possessed  by  the  Same  Party— Patent  De- 
fects.— The  same  principle  is  applied  under  a  somewhat  different 
condition  of  circumstances.  If  the  party  receiving  a  misrepresenta- 
tion is,  at  the  time  when  it  is  made,  either  from  knowledge  ac- 
(luired  previously  or  obtained  at  that  very  moment,  fully  aware 
of  the  truth,  acquainted  with  the  facts  as  they  really  are,  he  cannot 
claim  to  be  misled,  and  cannot  defeat  or  disaffirm  or  rescind  the 
transaction  on  the  ground  that  it  was  entered  into  through  false 
representations.  The  ease  of  patent  defects  is  merely  an  application 
of  this  equitable  doctrine.  If,  in  a  contract  of  sale  or  of  leasing, 
representations  are  made  by  the  vendor  concerning  some  incidents, 
(|ualities,  or  attributes  of  the  subject-matter  which  are  open  and 
visible,  so  that  the  falsity  of  the  .statement  is  patent  to  any  ordinary 
observer,  and  it  is  made  to  appear  that  the  purchaser,  at  or  shortly 
before  the  concluding  the  contract,  had  seen  the  thing  itself  which 
constitutes  the  subject-matter,  then  a  knoAvledge  of  the  facts  is 
chargeable  upon  such  party ;  he  is  assumed  to  have  made  the  agree- 
ment knowingly,  and  cannot  allege  that  he  was  misled  bv  the 
false  representations.^  This  special  rule  concerning  patent  defects 
requires  that  the  thing  concerning  which  the  statements  are  made 
should  be  seen  or  otherwise  personally  known  by  the  purchaser, 
and  that  the   defects  should  be  plainly  open  and  patent  to  ary 

'  One  ground  of  this  latter  brancli  of  the  rule  is  the  practical  impossibility  in 
any  judicial  proceeding  of  ascertaining  exactly  liow  much  knowledge  the  party 
obtained  by  his  inquiry;  and  the  opportunity  Avhich  a  contrary  rule  would  give 
to  a  party  of  repudiating  an  agreement  or  other  transaction  fairly  entered  into, 
with  which  he  had  become  dissatisfied;  Attwood  v.  Small,  G  Clark  &  F.  232; 
.Jennings  v.  Broughton,  5  De  Gex,  M.  &  G.  12G,  17  Beav.  234;  Lowndes  v.  Lane, 
2  Cox  363;  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  S  Sup.  Ct.  SS], 
H.  &  B.  282;  Farnsworth  v.  Duffner,  142  U.  S.  43,  12  Sup.  Ct.  1G4,  3  Keener 
G21. 

'Dyer  v.  Hargrave,  10  Ves.  .505,  1  Ames  Eq.  .Tur.  245:  Bowles  v.  Round.  5 
Ves,  508,  1  Ames  ]-2q.  Jur.  3G1,  2  Keener  853,  Slaughter's  Adm'r.  v.  Gerson, 
13  Wall.  379. 


459  ACTUAL    FRAUD.  §  895 

ordinary  observer,  and  especially  that  no  means  should  be  used 
to  L-oneeal  them,  or  to  divert  the  buyer's  attention  from  them,  or  in 
any  way  to  prevent  a  fair  in(juiry.- 

§  895.  When  the  Knowledge  or  Iilformation  must  be  Proved,  and 
not  Presumed. — The  principle  discussed  in  the  two  preceding  para- 
jiraphs^  is  subject,  however,  to  the  following-  most  important  quali- 
fication, w^hich  is  based  upon  the  proposition  heretofore  stated, 
that  whenever  a  positive  representation  of  fact  is  made,  the  party 
receiving  it  is,  in  general,  entitled  to  act  and  rely  npon  it,  and  is 
not  bound  to  verify  it  by  an  independent  investigation.  Where 
a  representation  is  made  of  facts  which  are  or  may  be  assumed 
to  be  within  the  knowledge  of  the  party  making  it,  the  knowledge 
of  the  receiving  party  concerning  the  real  facts,  which  shall  pre- 
vent his  relying  on  and  being  misled  by  it,  must  be  clearly  and 
conclusively  established  by  the  evidence.  The  nirre  existriice  of 
op  [tori  unities  for  examination,  or  of  sources  of  information,  is  not 
snffieient,  even  though  by  means  of  these  opportunities  and  sources, 
in  the  absence  of  any  representation  at  all,  a  constructive  notice  to 
the  party  would  be  inferred ;  the  doctrine  of  constructive  notice 
does  not  apply  where  there  has  been  such  a  representation  of 
fact."  If  one  party — a  vendor,  for  example — claims  that  the  inval- 
idating effects  of  his  misrepresentations  are  obviated,  and  that  the 
purchaser  was  not  misled  by  them,  either  because  they  were  con- 
cerning patent  defects  in  the  subject-matter,  or  because  he  was  fi'oni 
the  outset  accjuainted  with  the  real  facts,  or  because  he  had  made 
inquiry,  and  had  thereby  ascertained  the  truth,  the  foregoing 
qualification  plainly  applies;  it  is  plainly  incumbent  on  the  vendor 
to  prove  the  alleged  knowledge  of  the  purchaser  hy  clear  and 
])()sitive  evidence,  and  not  to  leave  it  a  matter  of  mere  inference 
or  implication;  an  opportunity  or  means  of  obtaining  the  liioirlodge 
is  not  enough."  The  qualification  applies  no  less  plainly  to  the 
case  where  the  party  receiving  a  representation  has  given  to  him 
an  opportunity  of  examining  into  the  real  facts,  or  where  his  at- 
tention is  directed  to  the  sources  of  information.  The  mere  op- 
portunity or  the  means  of  investigation  are  not  sufficient.     Un- 

^:\Ipa(l  V.  Bunn,  32  N.  Y.  275. 

'That  is,  the  pvincipk  inidoilying  the  first  and  secoiul  cases  mentioned 
ante,  in  §  802. 

==  Backer  v.  Pyne,  130  Tnd.  288,  30  N.  E.  21,  30  Am.  St.  Rep.  231  (vendor's 
statements  may  be  relied  on  thon<i;h  vendee  miglit  have  consulted  the  records)  ; 
Hoist  V.  Stewart,  161  Mass.  516,  37  N.  E.  755,  42  Am.  St.  Rep.  442.  See,  also, 
I  8 JO. 

■Price  V.  j\Tacaiilay.  2  Tio  nex.  :\r.  &  G.  33fl.  340;  Redornve  v.  TTnrd.  20  CI-. 
Div.  1.  21.  2  Keener  S'Hi.  Sh.  173;  Hicks  v.  Stevens,  121  HI.  ISO,  11  X.  K.  241, 
H.  &  B.  273,  3  Keener  01.5. 


§896  EQUITY    JUmSPULDEXCE.  .  460 

tloiibtedly;,  if  there  had  been  no  representation,  they  ■might  or 
■would  have  put  the  jjai'ty  upon  au  inquiry,  and  would,  therefore, 
amount  in  hiw  to  a  constructive  notice  of  the  facts  which  might 
have  been  learned  by  such  inquiry;  but  the  positive  representa- 
tion of  a  fact  cannot  be  counteracted  by  such  implication,  it  must 
be  shown  that  the  party  proceeded,  in  some  measure,  to  avail  him- 
self of  the  opportunity, — that  he  took  some  steps  in  making  an 
independent  investigation, — so  that,  although  his  examination  might 
not  have  been  complete  and  successful,  yet  he  must  be  charged 
with  the  knowledge  he  would  have  acquired  by  means  of  a  thor- 
ough investigation.  In  other  words,  it  must  appear  that,  through 
the  opportunity  and  means  of  inquiry,  he  received  some  information 
concerning  the  actual  facts,  so  that,  from  con?;iderations  of  expe- 
diency, he  .should  not  be  allowed  to  allege  his  failure  to  obtain 
all  the  knowledge  which  he  might  have  acquired/ 

§896.  Words  of  General  Caii.tion. — The  rule  that  some  inde- 
pendent kiioirlecUjc  of  the  true  facts  must  be  brought  home  to  the 
party  receiving  such  a  representation,  in  order  to  counteract  its  ef- 
fects in  misleading  him,  and  to  prevent  his  reliance  upon  it.  is  of 
wide  application.  Nothing  done  by  the  party  making  the  state- 
ment, and  no  extrinsic  circumstances,  will  avail,  unless  they  clearly 
lead  to  the  conclusion  that  the  transaction  was  concluded  upon 
the   strength   of   information,   or  su])stantial    grounds   for  forming 

^Attwood  V.  Small.  (5  Clark  &  F.  2.32;  Redgrave  v.  Hurd,  L.  R.  20  Ch.  D.  1, 
especially  at.  pj).  13.  14.  17.  23,  2  Keener  896,  Sh.  173:  Turner  v.  Houpt,  53  X.  J. 
Eq.  52G.  33  Atl.  28.  3  Keener  fi4(!.  Tlu're  is  no  contradiction  between  these  con— 
elusions  and  tlie  rules  stated  in  the  two  preceding  paragraphs  (§§  803,  S!)4 ) . 
'["he  question  is.  Did  the  party  rely  on  the  representation,  or  on  his  own  know- 
ledge? To  obviate  the  effect  of  the  representation,  it  nlu^^t  be  clearly  and  con- 
clusively shown  that  he  relied  on  his  oivn  knoirledge.  This  the  general  doctrine 
anil  the  qualification  both  demand.  But  neither  of  them  requires  that  this 
knowledge  be  perfect,  complete,  accurate.  \Miere  there  is  an  opportunity  nr 
means  of  examination,  the  party  may  decline  to  use  it,  for  he  has  a  right  to  rely 
on  the  representation  of  facts,  and  to  remain  personally  in  ignorance.  If. 
iiowever,  he  takes  steps  in  an  investigation,  and  thus  obtains  some  independent 
knowledge,  and  afterwards  concludes  the  agreement,  he  must  be  assumed  to 
have  concluded  it  upon  the  strength  of  that  acquired  knowledge,  however  partial 
and  deceptive,  and  not  upon  the  representation.  Where,  however,  there  is  no 
investigation  made  after  the  representation,  in  order  to  test  it,  but  the 
vendor  claims  that  his  statements  have  not  misled,  because  the  defects  were 
patent,  or  because  tlie  buyer  was,  from  the  outset,  acquainted  with  all  the 
facts,  there  it  is  the  completeness  and  acc\nacy  of  the  purchaser's  knowledge 
alone  which  counteracts  the  effects  of  the  representation  and  shows  that  it  was 
not  relied  upon  and  did  not  mislead:  in  such  case,  therefore,  it  must  be  shown 
tiiat  the  purchaser's  knowledge  of  all  the  material  facts  covered  by  the  misrep- 
resentation was  full,  accurate,  and  perfect.  The  vital  question  in  each  case, 
however,  is.  Did  the  party  receiving  the  representation  rely  ujion  it  in  conclud- 
ing the  agreement  or  other  transaction?  or  did  he  rely  upon  his  own  knowledge? 


4G1  ACTFAL    FHAUD.  §  898 

a  .iudgment,  other  than  the  representation  itself.  A  positive  repre- 
sentation of  fact  cannot  be  obviated  by  any  general  statement 
of  the  party  making  it,  or  by  any  extrinsic  v,'irenmstanees  which 
rnerelj"  admit  of  or  warrant  an  inference  contrary  to  the  representa- 
tion, even  thongh  of  themselves  snch  statements  or  such  circum- 
stances might  be  sufficient  to  put  the  other  party  upon  the  iiKjuii'v. 
This  is  .simply  another  application  of  the  principle  that  the  right 
of  a  party  receiving  a  representation  to  rely  upon  it  cannot  be 
taken  away  or  interfered  Avith  by  inference  or  implication.  If, 
therefore,  the  party  accompanies  or  follows  his  misrepresentation 
by  Avords  of  general  caution,  or  by  advice  to  the  other  that  he 
consult  his  friends  or  professional  advisers  before  concluding  the 
agreement,  he  does  not  thereby  counteract  any  effect  upon  tlie 
triinsaction  which  liis  untrue  statement  would  otherwise  produce.'   .  .  . 

§  897.  Prompt  Disaffirmance  Necessary.— All  these  considera- 
ticms  as  to  the  nature  of  misrepresentations  re(|uire  gi'eat  punctu- 
ality and  promptness  of  action  by  the  deceived  party  upon  his 
discover}^  of  the  fraud.  The  person  who  has  been  misled  is  re- 
(juired,  as  soon  as  he  learns  the  truth,  wutli  all  reasonable  diligence 
to  disaffirm  the  contract,  or  abandon  the  transaction,  and  give  the 
other  party  an  opportunit}^  of  rescinding  it,  and  of  restoring  both 
of  them  to  their  original  position.  He  is  not  allowed  to  go  on 
and  derive  all  possible  benetits  from  the  transaction,  and  then 
claim  to  be  relieved  from  his  own  obligations  by  a  rescission  or 
a  refusal  to  perform  on  his  own  part.  If  after  discovering  the 
untruth  of  the  representations,  he  conducts  himself  with  reference: 
to  the  transaction  as  thougrh  it  were  still  subsisting  and  binding, 
he  thereby  waives  all  benefit  of  and  relief  from  the  misrepresenta- 
tions.' 

§898.  VI.  Materiality  of  the  Misrepresentation. — The  last  ele- 
ment of  a  misrepresentation,  in  order  that  it  may  be  the  grounti 
for  any  relief,  affirmative  or  defensive,  in  equity  or  at  law.  is  its  ma- 
terialit}'.  The  statenient  of  facts  of  which  it  consists  must  not  oniy 
l)e  relied  upon  as  an  inducement  to  some  action,  but  it  must  also 
be  so  material  to  the  interests  of  the  party  thus  relying  and  acting 
upon  it,  that  he  is  pecuniarily  prejudiced  by  its  falsity,  is  placed  in  a 
worse  position  than  he  otherAvise  Avould  have  been.  The  party 
must  suffer  some  pecuniary  loss  or  injury  as  the  natural  conse- 
quence of  the  conduct  induced  by  the  misrepresentation.     In  shorty 

M^voyiiell  V.  fSprye,  1  De  (tcx,  :\I.  k  G.  fiGO,  709,  710;  Ilicks  v.  Stevens,  121 
111.  18G,  11  N.  E.  241.  11.  &  P..  27;i.  .3  Keener  (515. 

^Greenwood  v.  Fenn.  I'M;  111.  140,  20  N.  E.  487,  3  Keener  732:  Romanoff  Co. 
V.  Cameron.  137  Ala.  214,  33  South.  864;  Oppenheimer  v.  Clunie,  142  Cal.  313,  75 
Fac.  sno.    See.  also,  ante,  §§  817-820:  post,  §  917. 


I  899  Et^LiTv   JL  insi'ia  DKXCK.  4G2 

ihe  representation  must  be  so  material  that  its  falsity  renders  It 
unconscientious  in  the  i)erson  making'  it  to  enforce  the  agreement 
or  other  transaction  which  it  has  caused.  Fraud  without  resulting 
l)eeuniary  damage  is  not  a  ground  for  the  exercise  of  remedial 
jurisdiction,  equitable  or  legal;  courts  of  justice  do  not  act  as  viere 
tribunals  of  conscience  to  enforce  duties  Avhicli  are  purely  moral. ^ 
If  any  pecuniary  loss  is  shown  to  have  resulted,  the  court  will 
nut  inquire  into  the  extent  of  the  injury;  it  is  sufficient  if  the 
party  misled  has  been  very  slightly  prejudiced,  if  the  amount  is 
at    all    appreciable. - 

§899.  Effects  of  a  Misrepresentation. — Having  thus  descri1)ed 
tiie  elements  of  a  fraudulent  misrepresentation  in  equity,  I  will 
add,  in  order  to  complete  the  account,  a  brief  statement  of  its 
effects  upon  the  rights  of  the  defrauded,  and  the  duties  of  the  de- 
frauding party.  Wherever  an  agreement  or  other  like  transaction 
lias  been  procured  l)y  means  of  a  material  fraudulent  misrepresenta- 
tion by  one  of  the  parties,  the  other  has  an  election  of  equitable 
remedies.  The  injured  party  may,  at  his  option,  compel  the  fraud- 
ulent party  to  make  good  his  representation — that  is,  to  carry  it 
into  operation  in  the  nature  of  a  specific  performance — when  it  is 
of  such  a  nature  that  it  can  be  thus  performed;  or  he  may  rescind 
the  agreement,  and  procure  the  transaction  to  be  completely  canceled 
and  set  aside. ^  Such  a  fraudulent  misrepresentation,  even  though 
it  relates  only  to  a  portion  of  a  contract,  furnishes  a  complete 
defense  to  an  enforcement  of  the  whole  agreement.  The  fraud- 
ulent pax'ty  will  not  be  permitted,  against  the  objection  of  the 
other,  to  waive  that  particular  portion  with  which  the  false  state- 
ment  is   concerned,   and   to    obtain   a   specific   performance   of  the 

^Fellowe.s  v.  Lord  (4\vy(lyr.  1  Sim.  63,  1  Eiiss,  &  M.  83,  2  Keener  880;  Marsh 
V.  Cook,  32  N.  J.  Eq.  2()2.  3  Keener  G70. 

-  Cadnian  v.  Horner,  18  Vcs.  10,  2  Keener  881,  1  Ames  Eq.  Jur.  3.51,  1  Scott 
284,  2  Scott  236;  Wainscott  v.  Occidental,  etc.,  Ass'n,  98  Cal.  253,  33  Pac.  88, 
3  Keener  683,  2  Scott  729. 

^Rescission  and  cancellation;  see  Edwards  v.  iMcLeay,  2  Swanst.  287.  2  Scott 
718;  Neblett  v.  McFarland,  92  U.  S.  101,  3  Keener  693.  As  to  compelling  the 
fraudulent  party  to  make  good  his  representations,  see  Pulsford  v.  Richards, 
17  15pav.  87,  95,  2  Scott  661;  Piper  v.  Hoard,  107  N.  Y.  73,  13  N.  E.  626,  1 
Am.  St.  Rep.  785. '  Courts  of  equity  in  administering  these  two  principal  reme- 
dies, viz.,  either  cancellation  or  compelling  a  party  to  make  good  his  representa- 
tion by  a  specific  performance,  will  also  grant  whatever  additional  and  auxil- 
iary relief  may  be  necessary  to  render  these  remedies  completely  efl'ective. 
Thiis  when  a  person  has  through  fraud  obtained  tlie  legal  title  to  land  or  other 
property,  equity  constantly  treats  him  as  a  tnistee  for  the  one  equitably  en- 
titled, and  hence  has  sprimg  the  doctrine  of  constructive  trusts.  The  court  will 
also  grant  an  injunction  to  restrain  the  fraudulent  party  fi"om  disposing  of 
the  property,  or  from  entorcing  an  executory  contract  or  even  a  judgment  ob- 
tained by  fraud,  and  the  like.     See  §§  221,  914,  note,  1340,  1363. 


4Go  ACTUAL    it;ald.  §  Sd'a 

reniaiuder.-  A  material  luisstatenunit  of  fact,  made  innocently, 
and  therefore  not  fraudulent,  if  it  relates  to  the  substantial  terms 
of  the  agreement,  to  its  very  essence,  will  also  constitute  a  com- 
l>lete  defense  to  the  specific  execution  of  the  contract,  although  it 
may  not  be  a  sufficient  ground  for  any  affirmative  relief.''  On  the 
other  hand,  where  the  misrepresentation,  though  material  and  un- 
true, is  innocent,  made  in  a  bona  fide  belief  of  its  truth,  and  there- 
fore not  fraudulent,  and  it  relates  to  or  concerns  some  portion  only 
of  the  contract,  it  is  not  necessarily  nor  generally  a  complete  de- 
fense to  the  enforcement  of  the  contract.  Under  such  circum- 
stances, there  is  no  rule  of  equity  which  prevents  a  partial  enforce- 
ment of  a  contract  which  is  divisible,  or  the  specific  execution 
of  it  with  compensation  in  respect  of  its  portions,  incidents,  or 
features  which  do  not  correspond  with  the  description.^  The  de- 
structive effect  of  fraud  upon  any  contract,  conveyance,  or  other 
transaction  is  so  essential  and  far-reaching  that  no  person,  however 
free  from  any  participation  in  the  fraud,  can  avail  himself  of  what 
has  been  obtained  b}"  the  fraud  of  another,  unless  he  is  not  only 
innocent,  but  has  given  some  valuable  consideration.^'  Although 
the  burden  of  the  fraud  thus  passes  by  transfer  even  to  an  innocent 
person,  the  right  to  relief,  it  seems,  does  not  necessarily  pass  in 
the  same  manner.  The  general  rule  that  a  misrepresentation  must 
be  relied  upon  by  the  party  receiving  it,  in  order  that  it  may 
be  a  sufSeient  ground  for  impeaching  or  defeating  a  contract,,  ex- 
tends to  the  assignment  of  an  agreement  which,  as  between  the 
original  parties,  is  affected  by  a  misrepresentation.  If  a  contract 
between  A  and  B,  voidable  at  the  instance  of  B  on  account  of  A  's 

=  Viscount  Clermont  v.  Tasburgh,  1  Jac.  &  W.  112,  119,  1  Ames  Eq.  Jur.  .3.iS, 
2  Keener  883,  2  (Scott  241;  Cadman  v.  Horner,  18  Ves.  10,  1  Ames  Eq.  Jur.  351, 
2  Keener  881,  1  .Scott  284,  2  Scott  236. 

^  See  ante,  §  889,  and  cases  cited.  For  examples,  where  the  vendor's  untrue 
statement  was  as  to  his  title  to  the  whole  property  contracted  to  be  sold :  or 
where  it  concerned  tlie  nature  of  tUe  entire  estate,  as  representing  it  to  be  in 
foe  when  it  was  leasehold  or  for  life:  or  where  it  related  to  some  minor  feature. 
l)ut  that  feature  afi'ected  the  wliole  subject-matter  alike.  In  such  cases  a 
partial  enforcement  with  compensation  would  plainly  be  im])ossible.  See  Jacobs 
V.  Revell,   (1900)   2  Ch.  85S. 

n'owell  V.  Elliott,  L.  E.  10  Ch.  424;  ^Yhittemore  v.  Whittemore,  L.  R.  8  Va\. 
(i03;  Leyland  v.  lllingworth,  2  De  Gex,  F.  &  J.  248;  McMullins  Adm'r  v. 
Sanders,  79  Va.  350,  305.  Even  where  the  misrepresentation  is  intentional,  and 
the  remedy  of  rescission  would  be  granted,  still  the  contract  is  voidable,  and 
not  void,  and  in  accordance  with  the  rule  slated  in  the  former  part  of  the  above 
paragraph,  the  injured  party  may  waive  his  right  to  a  complete  defeat,  and  may 
insist  on  a  partial  specific  performance  with  com])ensalion  for  the  defect,  unless 
the  case  is  sucli  as  furnishes  no  foundation  for  estimating  the  amount  of  the 
compensation. 

*See  post,  S  91 S;  Huguenin  v.  Baseley,  i4  Ves.  273. 


i;  UOl  EtiLlTY    JUKJbl'KUDENCE.  464 

misrepresentation  made  to  him  in  procuring'  it,  is  assigned  by  B  to 
a  third  person,  C,  who  is  in  no  such  relations  with  the  original 
parties  that  he  is  affected  by  the  fraud,  and  to  whom  no  false 
statements  are  made  in  obtaining  the  transfer,  the  agreement  thus 
assigned,  if  otherwise  binding  upon  him,  would  be  valid  against 
C;  at  least  its  enforcement  against  him  would  not  be  hindered  by  A's 
original  misrepresentations,  since  he  had  not  acted  upon  their 
faith  and  credit/^ 

§900.  Second.  Fraudulent  Concealments. — Fraudulent  conceal- 
ment implies  knowledge  and  intention.  Although  there  are  some 
species  of  fraudulent  misrepresentations,  as  has  been  shown,  without 
these  qualities,  it  is  hardlj^  possible  to  conceive  of  a  fraudulent  con- 
cealment without  a  knowledge  of  the  fact  suppressed  possessed 
by  the  part}^  and  an  intention  not  to  disclose  such  fact. 

5;  901.  General  Doctrine — Duty  to  Disclose. — The  general  doc- 
trine with  respect  to  concealment  as  a  form  of  actual  fraud,  and  as 
distinguished  from  those  analogous  violations  of  fiduciary  duty 
Avhich  do  not  constitute  actual  fraud,  but  may  be  included  within 
the  term  "constructive  fraud,"  may  be  stated  as  follows:  If  either 
party  to  a  transaction  conceals  soine  fact  which  is  material,  which 
is  within  his  own  knowledge,  and  whicli  it  is  his  dvty  to  disclose,  he 
is  guilty  of  actual  fraud. ^  It  is  very  difficult  to  lay  down  any  gen- 
eral formula  which  shall  be  more  definite  than  this,  and  at  the 
same  time  accurate.  The  difficulty  consists  in  stating  a  general 
rule,  in  harmony  with  decisions  of  authority,  as  to  the  duty  of 
either  party  to  disclose  facts  which  are  within  his  knowledge.  It 
is  certain  that  every  concealment  or  failure  to  disclose  material 
facts  known  to  one  party  is  not  fraud  in  equity  or  at  law,  whatever 
(luality  it  may  have  before  the  tribunal  of  the  individual  conscience. 
It  has  never  been  contended,  in  our  system  of  jurisprudence,  that 
a  vendor  in  a  contract  of  sale  is  bound  to  disclose  all  facts  which, 
if  known  b,y  the  buyer,  would  prevent  or  tend  to  prevent  him  from 
liiaking  the  purchase.  ]\ruch  less  has  it  ever  been  maintained  that 
tlie  buyer  is  bound  to  discover  all  facts  known  to   himself  which 

■■' Smith  V.  Clarke,  12  Yes.  477,  484.  Fraud  only  renders  contracts  voidable,  and 
can  be  taken  advantage  of  only  by  the  person  defravided,  his  representatives  and 
privies;  the  right  to  a  remedy  is  personal:  Harris  v.  Kemble,  5  Bligh,  N.  S., 
730,  751.  The  proposition  of  the  text  assumes  that  the  contract  alone  is  assigned. 
If  a  cause  of  action  on  account  of  the  fraud  has  accrued  in  B's  favor,  and  that 
is  expressly  assigned  to  C  with  the  contract, — which  is  permissible  under  modern 
legislation  in  many  of  the  states, — the  result  would  be  different. 

^Dolman  v.  Xokes,  22  Beav.  402,  .3  Keener  .56.5;  B^o^^^l  v.  Montgomeiy,  20  X.  Y. 
2S7.  7.5  Am.  Dec.  404.  3  Keener  r)71  :  Dambmann  v.  Schulting.  75  X.  Y.  .55.  01.  H. 
^c  B.  227.  :>  Keener  202;  People's  Bank  v.  Bogart.  81  X.  Y.  101.  37  Am.  Bep. 
481,  3  Keener  575;  Keen  v.  -James,  39  X.  J.  Eq.  257,  51  Am.  Rep.  20,  3 
Keener  590. 


■  IGo  ACTUAL    FRAUD.  §  yOi 

would  enhance  tlie  value  of  the  article  sold  or  affect  the  conduct 
of  the  vendor.  Even  where  the  buyer  purchases  on  credit,  his  iiirrc 
failure  to  disclose  his  indebtedness,  or  his  embarrassed  financial 
condition,  is  not  necessarily  a  fraudulent  concealment.  The  same 
is  generally  true  of  all  other  species  of  contracts  and  transactions, 
except  of  those  species  of  agreements  or  engagements  which  ai'e 
in  their  very  essential  nature  intrinsically  fiduciary,  involving  a 
condition  of  absolute  good  faith.  While  the  decisions  admit  these 
propositions,  they  are  agreed,  on  the  other  hand,  that  it  is  only 
silence  which  is  permitted.  If  in  addition  to  th(>  party's  silence 
there  is  any  statement,  even  any  word  or  act  on  his  own  part,  which 
tends  affirmatively  to  a  suppression  of  the  truth,  to  a  covering  up 
or  disguising  the  truth,  or  to  a  withdrawal  or  distraction  of  the 
other  party's  attention  or  observation  from  the  real  facts,  then  the 
line  is  overstepped,  and  the  concealment  becomes  fraudulent.  The 
maxim  is,  Aliud  est  eelare,  aliud  taeere.^ 

§  902.  When  Duty  to  Disclose  Exists. — Concealment  becomes 
fraudulent  only  when  it  is  the  dutj-  of  the  party  having  knowledge 
of  the  facts  to  discover  them  to  the  other ;  and  this  brings  back  the 
([uestion,  When  does  such  duty  rest  upon  either  party  to  any  trans- 
action? All  the  instances  in  which  the  duty  exists,  and  in  Avhich 
a  concealment  is  therefore  fraudulent,  may  be  reduced  to  three 
distinct  classes.  These  three  classes  are,  in  general,  clearly  distinct 
and  separate,  although  their  boundaries  may  sometimes  overlap,  or 
a  case  may  fall  Avithin  two  of  them:  1.  The  first  class  includes  all 
th.ose  instances  in  which,  wholly  independent  of  the  form,  nature, 
or  object  of  the  contract  or  other  transaction,  there  is  a  previous, 
existing,  definite  fiduciary  relation  between  the  parties,  so  that 
the  obligation  of  perfect  good  faith  and  of  complete  disclosure  al- 
wa^'s  arises  from  the  existing  relations  of  trust  and  confidence,  and 
is  necessarily  impressed  upon  any  transaction  which  takes  place 
1). 'tween  such  persons.  Familiar  examples  are  contracts  and  other 
transactions  betAveen  a  principal  and  agent,  a  client  and  attorney, 
a  beneficiary  and  trustee,  a  ward  and  guardian,  and  the  like.^  2. 
The  second  class  endiraces  those  instances  in  Avhich  there  is  no 
existing  special  fiduciary  relation  between  the  parties,  and  the 
transaction  is  not  in  its  essential  nature  fiduciary,  but  it  appears 
that  either  one  or  each  of  the  parties,  in  entering  into  the  contract 
or  other  transaction,  crpres.sh/  re})oses  a  trust  and  confidence  in  the 
other;  or  else  from  the  circumstances  of  the  case,  the  nature  of 

=  Xickley  v.  Thomas,  22  Barb.  652:  Bench  v.  Sheldon.  14  Bnrb.  6(1.  See  Coak^s 
V.  Boswell,  11  App.  Ca«.   (H.  of  L.)   232.  3  Keener  5flfi. 

'Tate  V.  Williamson,  L.  1^.  1  Eq.  528,  2  Ch.  55,  H.  &  V,.  :V.i7.  Sh.  193;   Noyes 
V.   i,aii(!on,  5(1  Vt.  500,  10  Atl.  342. 
30 


§  903  EQUITY    JURISPRUDEXCE.  460 

their  dealings,  or  tlieir  position  towards  each  other,  such  a  trust 
and  confidence  in  the  particular  case  is  necessarily  implied.  The 
nature  of  the  transaction  is  not  the  test  in  this  class.  Each  case 
must  depend  upon  its  own  circumstances.  The  trust  and  confidence, 
and  the  consequent  duty  to  disclose,  may  expressly  appear  by  the 
very  language  of  the  parties,  or  they  may  be  necessarily  implied 
from  their  acts  and  other  circumstances.-  3.  The  third  class  includes 
those  instances  where  there  is  no  existing  fiduciary  relation 
between  the  parties,  and  no  special  confidence  reposed  is  ex- 
pressed by  their  words  or  implied  from  their  acts,  but  the  very 
contract  or  other  transaction  itself,  in  its  essential  nature,  is  in- 
trinsically fiduciary,  and  necessarily  calls  for  perfect  good  faith 
and  full  disclosure,  without  regard  to  any  particular  intention  of 
the  parties.  The  contract  of  insurance  is  a  familiar  example.  It 
will  be  found,  I  think,  that  all  eases  of  fraudulent  concealment 
may  be  referred  to  one  or  the  other  of  these  classes. 

§  903.  Concealments  by  a  Vendee. — As  instances  of  concealment 
are  inost  frequent  in  contracts  of  sale,  it  will  be  proper  to  apply 
the  foregoing  general  doctrine  to  the  vendee  and  the  vendor.  The 
decisions  recognize  a  marked  difference  between  the  two,  with 
reference  to  their  duty  to  disclose.  The  contract  of  sale  is  not  in- 
trinsically fiduciary,  and  does  not  fall  within  the  third  of  the  fore- 
going classes.  The  conclusion  is  clearly  established,  that  under 
ordinary  circumstances,  there  being  no  previously  existing  fiduciary 
relation  between  the  parties,  and  no  confidence  being  expressly 
reposed  by  the  vendor  in  the  very  contract,  no  duty  rests  upon 
the  vendee  to  disclose  facts  which  he  may  happen  to  know  advan- 
tageous to  the  vendor. — facts  concerning  the  thing  to  be  sold  which 
Avould  enhance  its  value,  or  tend  to  cause  the  vendor  to  demand 
a  higher  price,  and  the  like;  so  that  a  failure  to  disclose  wnll  not 
he  a  fraudulent  concealment.^  The  reason  is  evident.  The  law  as- 
sumes that  the  owner  has  better  opportunities  than  any  one  else 
to  know  all  the  material  facts  concerning  his  own  property,  and  is 
thus  able  under  all  ordinary  circumstances  to  protect  his  own 
interests.  The  duty  to  disclose  can  rest  upon  the  vendee  only  Avhen 
the  case  belongs  either  to  the  first  or  the  second  of  the  above-men- 
tioned classes.  If,  therefore,  there  is  a  confidence  reposed  by  the 
vendor  in  the  vendee,  by  reason  of  some  prior  existing  fiduciary 
relation  between  them,  the  vendee's  failure  to  disclose  a  material 
fact  would  undoubtedly  be   a   fraudulent   concealment.     Also,    if, 

-Brown  v.  Montgomery,  20  N.  Y.  287,  75  Am.  Dec.  404.  3  Keener  571;  Keen 
V.  James.  39  N.  J.  Eq.  257,  51  Am.  Rep.  29.  3  Keener  590. 

^Fox  V.  Mackreth.  2  Cox  320.  2  Bvown  Ch.  400,  420;  Harris  v.  Tyson,  24 
Pa.  St.  347,  3  Keener  5G1. 


467  ACTIAL    1-UAL'D.  §  904 

during  the  negotiation  ciiul  conclusion  of  the  sale,  confidence  is 
expressly  reposed  in  the  vendee,  or  if  from  the  circumstances  of 
the  contract  and  the  acts  of  the  parties  such  confidence  is  neces- 
sarily implied,  the  vendee's  silence  might  be  a  fraudulent  conceal- 
ment. In  instances  of  the  latter  kind,  a  much  stronger  and  clearer 
ease  of  confidence  and  consequent  duty  to  disclose  is  necessary 
against  the  vendee  than  would  be  required  under  analogous  eir- 
cuvnstances  against  the  vendor.- 

v;  904.  Concealments  by  a  Vendor. — A  broader  duty  certainly 
rests  upon  the  vendor;  a  duty  rests  on  him  to  disclose  material 
facts  under  far  more  circumstances  than  is  true  of  the  purchaser. 
This  duty,  however,  is  not  universal.  In  ordinary  contracts  of  sale, 
where  no  previous  fiduciary  relation  exists,  and  where  no  confi- 
dence, expressed  or  implied,  growing  out  of  or  connected  with  the 
very  transaction  itself,  is  reposed  on  the  vendor,  and  the  parties 
are  dealing  with  each  other  at  arms-length,  and  the  purchaser  is 
presumed  to  have  as  many  reasonable  opportunities  for  ascertain- 
ing all  the  facts  as  any  other  person  in  his  place  would  have  had, 
then  the  general  doctrine  already  stated  applies:  no  duty  to  dis- 
close material  facts  known  to  himself  rests  upon  the  vendor;  his 
failure  to  disclose  is  not  a  fraudulent  concealment.^  Of  course,  any 
affirmative  act  or  language  tending  to  conceal  or  withdraw  the  buy- 
er's attention  from  the  real  facts  will  turn  the  scale  and  render 
the  vendor's  conduct  fraudulent,  as  has  already  been  shown.  If, 
on  the  other  hand,  the  case  belongs  to  the  first  class  mentioned  in 
a  former  paragraph,  the  duty  of  disclosure  becomes  manifest  and 
stringent.  Whenever  the  vendor  occupies  an  established  fiduciary 
relation  towards  the  buyer,  independent  of  the  contract,  a  full  dis- 
closure is  demanded ;  any  suppression  or  silence  as  to  material  facts, 
v,hich  would  in  any  degree  tend  to  prevent  the  sale,  is  clearly  a 
fraudulent  concealment;  the  utmost  good  faith  and  openness  is  re- 
quired of  vendors  occupying  such  relations.  Equity  and  the  law 
go  farther  than  this.  Not  only  where  the  vendor  thus  occupies  a 
fiduciary  position  towards  the  purchaser,  independently  of  the  sale. 
but  also  when,  in  the  very  contract  of  sale  itself,  or  in  the  negotia- 
tions preliminary  to  it,  the  purchaser  expressly  reposes  a  tru.st  and 
confidence  in  the  vendor,  and  when,  from  circumstances  of  that 
very  transaction,  or  from  the  acts  or  relations  of  the  parties  in 
connection  with  it,  such  a  trust  and  confidence  reposed  by  the  pur- 
chaser is  necessarily  implied  in  the  contract  of  sale,  it  is  the  (lut\- 

=  Tate  V.  Williamson,  L.  R.  2  Ch.  5.5,  1  Eq.  528,  H.  &  B.  337,  Sh.  103;  Pliillips 
V.  Homfray,  L.  R.  6  Ch.  770. 

niaywood  v.  Cope,  25  Roav.  10;  People's  Bank  v.  Bof^art,  81  X.  Y.  101.  .-57 
Am.  Dec.  481,  3  Keener  575;  Mitcliell  v.  :\[oDoiigall,  62  111.  498,  H.  &  B.  279. 


§  906  EQUITY    JUKlsriilDENCE.  4G8 

of  the  vendor  to  make  a  like  disclosure,  and  his  failure  to  do  so  is 
a  fraudulent  conecalnient.- 

§  905.  Non-disclosure  of  Facts  a  Defense  to  the  Specific  Enforce- 
ment of  Contracts  in  Equity. — Although  the  discussion  relates  to 
fraudulent  concealments,  such  as  necessarily  imply  knowledge  and 
an  intent  not  to  communicate  the  fact,  it  is  proper  to  notice  one 
other  rule  affecting  the  relations  between  the  vendor  and  purchaser 
in  equity.  A  fraudulent  concealment,  defeating  a  contract  of  sale 
at  law,  and  furnishing  ground  for  its  cancellation  in  equity,  is,  of 
course,  a  complete  defense  to  its  specific  performance.  In  addition 
to  these  concealments  properly  so  called,  the  suppression  of  a  ma- 
terial fact,  or  the  failure  to  communicate  a  material  fact  by  the 
vendor,  without  any  purpose  of  deceiving  or  misleading  the  other 
party,  and  even  without  having  himself  any  knowledge  of  the  fact, 
while  not  affecting  the  validity  of  the  agreement  at  law,  and  not 
I'eing  sufficient  ground  for  its  cancellation  in  equity,  because  not 
fi'audulent,  may  still  render  the  agreement  so  unfair,  unequal,  or 
hard,  that  a  court  of  equity,  in  accordance  Avith  its  settled  prin- 
ciples in  administei'ing  the  remedy  of  specific  performance,  will 
refuse  to  enforce  the  contract  against  the  party  who  was  misled. 
The  two  contracting  parties  do  not  stand  upon  an  equality;  either 
one  had  a  knowledge  of  important  facts  of  which  the  other  M'.as 
ignorant,  or  else  there  was  a  mistake  by  one  or  perhaps  by  both. 
Such  misdescriptions,  consisting  of  omitting  material  particular^, 
however  free  of  wi'ongful  intent  they  may  be,  have  often  been  held 
a  sufficient  defense  to  suits  for  specific  enforcement.^ 

55  906.  Concealments  by  Buyers  on  Credit. — The  particular  case 
of  the  buyer  on  credit  who  conceals  his  bad  financial  condition  re- 
quires a  brief  additional  mention,  because  it  is  the  most  connnon 
species  of  fraud,  and  because  it  involves  one  or  two  special  rules. 
As  to  what  constitutes  a  false  representation  by  such  a  l)uyer,  noth- 
ing need  be  added,  except  that,  in  this  instance  especially,  the  state- 
ment of  the  buyer  nuist  be  something  more  than  the  mere  expression 
of  an  opinion  as  to  his  pecuniary  ability.  As  to  what  constitutes 
a  fraudulent  concealment  under  these  circumstances,  there  has 
been  some  uncertainty  and  even  confiict  of  decision  in  determining 
what  matters  such  buyer  is  bound  to  disclose,  so  that  his  failure 
to  do  so  would  be  a  fraud.     The  following-  rules  may  be  regarded 

-'  Dolman  v.  Xokes,  22  Beav.  402,  3  Keener  .565 ;  Bro^^^l  v.  Montgomery,  20 
N.  Y.  287.  .3  Keener  571:  People's  Bank  v.  Bo-rart.  81  X.  Y.  101.  .37  Am.  Rep. 
481.  ,3  Keener  575. 

^EUard  v.  Lord  IJandafl',  1  I5all  &  B.  241,  1  Ames  Eq.  Jnr.  303,  2  Keener  854, 
2  Scott  24(i:  liyars  v.  Stnbbs,  85  .\Ia.  25(1.  4  South.  755,  1  Ames  Eq.  Jur.  370; 
Woohuiis  V.  Iln)s](>y.  <)3  Ky.  5S2.  20  S.  W.  7S1.  2  Keener  026.  2  Scott  251; 
contra,  see  I'unier  v.  (hcen   (1895).  2  Ch.  205,  1  Ames  Eq.  .Tnr.  3G4. 


469  ACTUAL  j'lj.vrD.  >;  '.'10 

as  settled  by  the  decided  weis'ht  of  authority;  they  are  certainly 
sustained  by  courts  of  the  greatest  ability  and  influence:  1.  Tln' 
l)urehaser  when  buyinii-  on  credit  is  not  bound  to  disclose  the  facts 
of  his  financial  condition.  If  he  makes  no  actual  misrepresentation, 
if  he  is  not  asked  any  questions,  aiul  does  not  uive  thereto  any  un- 
true, evasive,  or  partial  answers,  his  mere  silence  as  to  his  o^eneral 
bad  pecuniary  condition,  his  indebtedness,  or  even  his  insolveupy. 
will  not  constitute  a  fraudulent  concealment.  2.  If.  however,  th'' 
former  good  financial  condition  of  the  buyer  has  been  known  to  the 
vendor  through  pi-ior  dealing's  or  othei'wise,  and  any  sudden  oc 
complete  change  has  happened  to  the  buyer,  sucli  as  his  sudden 
loss  of  property  by  fire  or  other  accident,  or  his  suckhm  insolvency 
or  embarrassment  by  the  failure  of  others,  or  a  general  assignment 
which  he  has  made  of  all  his  property,  and  the  like,  he  is  bound 
to  disclose  such  facts  to  the  vendor  previously  to  the  completion 
of  the  sale;  his  mere  silence  with  respect  to  such  changes  in  his 
condition,  even  when  no  questions  are  asked  of  him,  is  a  frauduk^nt 
concealment.  3.  Finally,  if  at  the  time  he  purchases  the  goods  on 
credit,  and  fails  to  disclose  his  general  insolvency,  embarrassed 
condition,  or  indebtedness,  the  buyer  forms  or  has  in  his  mind 
the  intention  or  desiun  of  not  paying  for  them,  this  is  a  fraud 
on  his  part.  In  other  words,  a  purchase  on  credit  with  a  precon- 
ceived design  on  the  buyer's  part,  formed  at  or  before  the  purchase, 
not  to  pay  for  the  thing  bought  constitutes  a  species  of  fraudulent 
concealment.^ 

§  910.  Jurisdiction  of  Equity  in  Cases  of  Fraud. — It  is  impos- 
sible, especially  in  the  United  States,  to  formulate  any  universal 
rules  concerning  the  extent  or  the  exercise  of  the  equitable  juris- 
diction in  matters  of  fraud,  since  the  decisions  of  different  courts 
and  in  different  states  are  directly  at  variance  with  respect  to  its 
existence  and  extent,  and  since  its  exercise  must  depend,  to  a  great 
extent,  upon  the  circumstances  of  particular  cases,  and  even  upon 
tlie  temperaments  and  opinions  of  individual  judges.  The  jurisdie- 
tion,  Avhen  it  exists,  may  be  exercised  by  granting  reliefs  whieh 
are  peculiarly  ecpiitable,  or  reliefs  which  are  wholly  pecuniary,  and 
therefore  legal.  In  conferring  these  reliefs  whieh  are  purely  equit- 
al)le.  and  therefore  exclusive,  the  power  of  equity  knows  no  limit. 
The  court  can  always  shape  its  remedy  so  as  to  meet  the  demands 
of  justice  in  every  case,  however  peculiai-.  The  most  important 
of  these  equitable  final  reliefs,  to  one  or  the  other  of  which  all 
special  instances  and  forms  may  be  rednced.  are  these:     Rescission 

^Nichols  V.  IMTiiior,  IS  X.  Y.  20.).  2?,  X.  V.  204;  llolclikin  v.  Tliiid  Xnl.  Bank, 
127  X.  Y.  320.  27  X.  E.  10.50,  ?.  Keener  nH]  ;  Oswego  JStarch  Factory  v.  Lendrum, 
57  Iowa  573,  10  X.  \V.  900,  42  Am.  Rep.  53. 


§910  EQUITY   .irinsriaDKXCE.  4T0 

or  cancellation,  as  applied  to  contracts,  conveyances,  judgments, 
find  all  fraudulent  transactions,  with  one  marked  exception;  re- 
formation of  written  instruments  improperly  drawn  through  fraud; 
and  specific  enforcement  by  which  the  fraudulent  party  is  com- 
pelled to  perform  the  very  specific  obligation  which  rests  upon 
him,  and  the  defrauded  party  obtains  the  enjoyment  of  the  very 
right  of  which  he  was  deprived  through  the  fraud.  This  latt.er 
class  of  remedies  may  assume  an  unlimited  variety  of  forms,  as  the 
circumstances  may  require.  It  includes,  among  others,  the  com- 
jielling  the  fraudulent  party  to  make  good  his  representations:  the 
treating  him  as  a  trustee  with  respect  to  the  property  which  he  has 
accjuired  by  his  fraud ;  the  enforcing  the  performance  of  their 
specific  duties  by  trustees,  directors,  and  officers  of  corporations, 
:!!id  all  others  who  stand  in  a  position  of  trust;  the  compelling  a. 
written  security  to  stand  good  for  what  is  actually  due  upon  it, 
and  the  like.  These  final  remedies  may  be  accompanied  and  aided 
by  auxiliary  reliefs,  such  as  injunction  or  a  receiver.  The  purely 
l)(^cuniary  relief  which  courts  of  equity  may  administer,  as  well  as 
courts  of  law,  in  matters  of  fraud,  are  an  accounting  in  all  its  vari- 
ous forms  and  conditions,  and  simple  recoveries,  without  an  ac- 
counting, of  specific  amounts  of  money  which  have  been  fraudulent- 
ly obtained,  or  which  are  equitably  and  perhaps  legally  due  on 
account  of  fraud.  In  administering  all  these  remedies,  pecuniary  as 
well  as  equitable,  the  fundamental  theory  upon  which  equity  acts 
is  that  of  restoration, — of  restoring  the  defrauded  party  primarily, 
{Mid  the  fraudulent  party  as  a  necessary  incident,  to  the  ]»ositions 
which  they  occupied  before  the  fraud  was  committed.  Assuming 
that  the  transaction  ought  not  to  have  taken  place,  the  court  pro- 
ceeds as  though  it  had  not  taken  place,  and  returns  the  ])arties 
to  that  situation.  Even  in  such  cases,  the  court  api)lies  the  maxim. 
He  who  seeks  equity  must  do  equity,  and  will  thus  secure  to  the 
A\rong-doer,  in  awarding  its  relief,  whatever  is  justly  and  equitably 
his  due.^ 

'  I'iie  remedies  of  cancellation,  reformation,  and  enforcing  fiduciary  duties  are 
s(i  familiar  tliat  they  require  no  citation  of  examples.  For  examples  of  com- 
pelling the  fraiululent  party  to  make  good  his  representations,  see  cases  cited 
ante,  under  !?  899.  Treating  a  fraudulent  party  as  a  trustee;  sec  po'^t,  section 
on  constructive  trusts.  Example  of  ordering  a  seciirity  to  stand  for  wliat  was 
really  due  on  it:  Xeilson  v.  McDonald,  6  Johns.  Ch.  201,  1  Scott  482,  .3  Keener 
7")1.  The  equitable  theory  of  restoring  the  parties  to  their  original  position: 
J^rown  V.  Norman,  6.5  Miss.  369,  4  South.  29.3.  7  Am.  St.  Eep.  663.  2  Scott  747. 
3  Keener  699;  Neblett  v.  Macfarland.  92  V.  S.  101.  .3  Keener  693:  Potter  v. 
Taggart,  59  Wis.  1,  16  X.  W.  5-'53,  632.  3  7\eener  673:  Ooodrieh  v.  Lathroji.  94 
Cal.  56,  28  Am.  St.  Rep.  91,  29  Pac.  .329.  2  Ames  Eq.  .Tur.  187;  Tliomas  v.  Beals 
I.")!  Mass.  51,  27  N.  E.  1004,  3  Keener  707.  For  circumstances  excusing  a  com- 
]  ';^te    restoration    of   the    parties   to    their   original    condition,    see   Hammond    v. 


471  .  ACTIAT.    FllArD.  §    912 

j^  911.  Fundamental  Principles  of  the  Jurisdiction.^ — 
§  912.  The  English  Doctrine. — The  doctrine  is  fully  settled  by 
aii  unbroken  line  of  decisions  extendino-  to  the  present  day,  that, 
with  one  remarkable  exception,  the  jurisdiction  of  equity  exists 
in  and  may  be  extended  over  evpry  ease  of  fraud,  whether  the  pri- 
mary rights  of  the  parties  are  legal  or  equitable,  and  whether  the 
remedies  sought  are  equitable  or  simple  pecuniary  recoveries,  and 
even  though  courts  of  law  have  a  concurrent  jurisdiction  of  the 
ease  and  can  administer  the  same  kind  of  relief.  The  English 
judges  have  virtually  said  that  in  every  case  of  fraud  the  reiiiody 
at  law,  either  from  the  nature  of  the  legal  relief  itself  or  from 
the  methods  of  legal  procedure,  is  inadequate.  The  only  question, 
therefore,  presented  to  an  English  court  is,  not  whether  the  ecpiit- 
able  jurisdiction  exists,  but  whether  it  should  be  exercised.^  As 
the  ablest  judges  have  often  said,  one  of  the  occasions  for  the  exist- 
ence of  a  separate  court  of  chancery  was  its  power  to  deal  with 
all  cases  of  fraud;  its  original  grant  of  jurisdiction  covered  fraud 
in  all  its  forms  and  phases.  The  law  courts,  on  the  other  hand, 
originally  had  very  little,  if  anj^,  jurisdiction  in  such  matters.  In 
the  early  forms  of  action  to  enforce  covenants,  debts,  and  other 
obligations  ex  contractu,  fraud  was  not  admitted  as  a  defense,  and 
there  was  no  form  of  action  appropriate  for  the  recovery  of  damages 
on  account  of  fraud.  The  jurisdiction  of  the  law  courts  in  such 
cases  was  of  later  origin,  and  was  of  gradual  growth.     It  was  not 


Pennock,  61  N.  Y.  145,  3  Keener  688;  Browii  v.  Norman,  Xeblett  v.  ^Macfarlaiid, 
(ioodricli  V.  Lathroj?,  supra.  In  some  iurisdictions  tlie  defrauded  party  must 
return  or  tender  the  consideration  received  by  him  before  suit  for  rescission; 
see  Rigdon  v.  Walcott,  141  J 11.  649,  .'U  X.  E.  158,  3  Keener  714;  but  in  most  it 
is  lield,  in  accordance  with  equitable  principles,  that  an  offer  in  the  bill  to  do 
equity  is  sufficient,  since  the  court  can  impose  suitable  terms  to  the  grantinj;  <>f 
relief;  see  BrowTi  v.  Norman,  supra;  Thackrah  v.  Haas,  119  U.  S.  490.  7  Sup. 
Ct.  311,  2  Scott  746,  3  Keener  697;  Carlton  v.  Hulett,  49  Minn.  308,  51  N.  W. 
1053,  3  Keener  709;  Thomas  v.  Bcals,  supra. 

'  See  ante,  §  222. 

^Anderson  v.  Eggers,  (N.  .J.  Eq.)  49  Atl.  578;  Hill  \.  Lane.  L.  R.  11  Eq.  215; 
Kamshire  v.  Bolton,  L.  R.  8  Eq.  294;  St.  Aubyn  v.  Smart,  L.  R.  5  Eq.  183,  3  Ch. 
646;  Slim  V.  Croucher,  1  De  Gex,  F.  &  .J.  518.  In  the  la-st  case  Turnei',  L.  .T.,  sai<! 
(p.  528)  :  "If  we  were  to  grant  any  relief  upon  this  ajjpeal,  we  should  he  very 
much  narrowing  an  old  jurisdiction  of  this  court,  by  conliiiing  it  to  cases  in 
which  the  jurisdiction  has  been  exercised.  We  should,  I  think,  be  taking  the 
cases  as  the  measure  of  the  jurisdwtion,  instead  of  as  the  examples  of  that  juris- 
flicfion."  These  words  contain  the  very  essence  of  the  true  theory  concerning 
the  function  of  decided  cases  to  operate  as  examples  of  all  legal  principles  and 
doctrines,  rather  than  as  being  their  sources  or  fountains.  They  deserve  to  be 
emblazoned  on  the  walls  of  every  court-room  in  the  country,  so  that  they  might 
be  under  the  constant  observation  of  all  judges  who  are  applying  precedents  in 
the  work  of  constructing  and  develo])iiig  the  law. 


§  913  EQUITY    JUK181'i;rD£XCE.  ^  472 

until  the  invention  of  the  actions  of  assumpsit,  ease,  and  ti'ovei-,  in 
which  equitable  principles  could  be  largely  admitted,  that  the  juris- 
diction at  law  in  matters  of  fraud  became  fully  developed.  The 
full  jurisdiction  of  equity  having  thus  been  established  from  the 
earliest  time,  it  should  not,  in  accordance  with  familiar  princii)les, 
be  at  all  aft'ected  by  a  subsequent  growth  of  a  similar  common-law 
jurisdiction.  To  say  that  the  full  jurisdiction  of  equity  has  been 
any  way  abridged,  impaired,  or  altered,  because  the  law  courts 
have  gradually  assumed  and  finally  acquired  a  like  jurisdiction, 
even  though  competent  in  many  cases  to  administer  adequate  relief. 
is  to  violate  one  of  the  most  fundamental  principles  reguhiting  the 
general  ecpiitable  jurisdiction.  The  sum  of  the  English  doctrine, 
therefore,  is,  that,  although  the  jurisdiction  always  exists,  whether 
it  will  be  exercised  depends  upon  the  circumstances  of  individual 
cases. - 

ji  913.  Exception — Fraudulent  Wills. — The  marked  exception  to 
the  jurisdiction  referred  to  in  the  foregoing  paragraph  is  that  of 
canceling  wills  obtained  by  means  of  fraud.  In  a  few  very  early 
decisions,  the  court  of  chancery  seems  to  have  asserted  such  a  jui'is- 
diction.  For  more  than  a  century,  however,  and  through  a  luim- 
series  of  cases,  the  judges  have  either  refused  to  exercise  the  juris- 
diction, or  denied  its  existence;  and  it  has  finally  been  settled  by 
the  tribunal  of  last  resort,  that,  under  their  general  jurisdiction, 
courts  of  equity  have  no  power  to  entertain  suits  for  the  purpose 
of  setting  aside  or  canceling  a  will  on  the  ground  that  it  was  pro- 
cured bj^  fraud.  The  same  rule  has  been  generally  adopted  in  the 
I'uited  States.  Under  the  common  system,  the  validity  of  wills 
of  real  estate  could  only  be  tested  in  an  action  at  law;  that  of  wills 

"  1  atld  several  cases,  most  of  tlieni  recent,  mciely  as  examples  of  the  exer- 
cise of  the  jurisdiction  when  some  remedy  miplit  also  have  heen  obtained  at 
law.  Pecuniary  I'ecoveries ;  jurisdiction  not  exercised:  Leather  v.  Simpson,  L. 
I  J.  11  lOq.  398  (to  recover  back  money  paid  for  a  forged  bill).  Pecuniary  recov- 
eries; jurisdiction  exercised:  See  cases  in  the  last  note,  and  also  ]Mclnl(ish  v. 
(Ireat  West.  K'y,  2  ilacn.  &  G.  74  (discovery  and  relief  on  a  contract,  although 
llu^re  was  a  remedy  at  law).  Cancellation  or  rescission  of  contracts,  sales  etc.: 
lioare  v.  Bremridge,  L.  R.  14  Eq.  522,  8  Ch.  22,  2  Ames  Eq.  Jur.  121  (cancella- 
1  ion  of  an  insurance  policy;  the  jurisdiction  certain,  although  the  remedy  at 
law  might  be  better).  Recovering  real  estate  to  which  the  plaintiff  Avas  en- 
titled, and  which  he  had  been  prevented  by  fraud  from  possessing  and  enjoying: 
Vane  v.  Vane,  L.  R.  8  Ch.  .S8.3  (lapse  of  time  no  bar  where  fraud  was  con-- 
cealed  from  the  plaintiff, — a  remarkable  case) .  Specific  enforcement  of  false  rep- 
resentations;  compelling  the  defendant  to  make  them  good:  Hutlon  v.  Rossiter, 
7  De  Gex,  M.  &  G.  9,  18.  19  (against  an  executor  who  had  represented  that  tlie 
assets  of  the  estate  were  sufficient,  and  that  a  certain  claim  would  be  paid). 
J<]nforcing  a  constructive  trust  against  a  party  who  has  fraudulently  obtained  the 
title  to  land:  Rolfe  v.  Gregory,  4  De  Gex,  J.  &  S.  57G  (delay  excused  by  con- 
cealed  fraud). 


473  ACTIAI.    JK'All).  §    914 

of  personal  estate  was  established  1)\-  the  decree  of  the  ecclesiastical 
court  in  the  proceedings  for  probate.  Under  the  statutory  system 
generally  prevailing  in  this  country,  both  wills  of  real  estate  and 
v.-ills  of  personal  estate  are  admitted  to  probate ;  in  some  of  the 
states  the  decree  of  the  probate  court  is  conclusive  with  respect  to 
both  kinds;  in  other  states  it  is  conclusive  only  with  respect  to 
those  of  personal  property.^ 

§  914.  The  American  Doctrine. — In  a  few  of  the  earlier  deci- 
sions the  English  rule  was  adopted  to  its  full  extent.^  This  cannot, 
however,  be  regarded  as  the  present  American  doctrine.  As  was 
sliowu  in  the  former  volume,  in  several  of  the  states  only  a  pai'tia] 
and  very  narrow  equitable  jurisdiction  was  for  a  long  time  con- 
ferred, and  this  was  strictly  limited  by  the  courts  to  the  very  mat- 
ters specified  by  the  statutes.  In  other  states,  the  equitable  juris- 
dietion  was  defined  by  statute  as  embracing  only  those  cases  for 
Avhich  there  was  no  adequate  remedy  at  law.  Influenced  jiartly  by 
the  tendency  of  this  legislation,  and  parth^  by  the  supposed  con- 
stitutional guaranties  of  the  jury  trial,  which  were  construed  to 
forbid  the  interposition  of  equity  in  controversies  wdiich  could  be 
determined  by  law,  the  equity  courts  of  the  United  States  and  of 
the  several  states  have  practicallj^  abandoned  a  large  part  of  the 
jurisdiction  in  matters  of  fraud  which  is  confessedly  held  by  the 
English  court  of  chancery.  The  doctrine  is  settled  that  the  exclus- 
ive jurisdiction  to  grant  purely  equitable  remedies,  such  as  cancel- 
lation, will  not  be  exercised,  and  the  concurrent  jurisdiction  to 
grant  pecuniary  recoveries  does  not  exist,  in  any  case  where  the 
legal  remedy,  either  affirmative  or  defensive,  which  the  defrauded 
party   might    obtain,    would    be    adequate,    certain,    and    eomplete.- 

Mones  V.  Gregory,  2  De  Gex,  J.  &  8.  83;  In  re  Broderiek's  Will,  21  W'aU. 
503;  Domestic  &  F.  M.  Soe,  v.  Eells,  68  Vt.  497,  35  All.  463,  54  Am.  St.  Rep. 
888.  As  to  jurisdiction  in  ease  of  a  lost  or  destroyed  will,  see  Dower  v.  Seeds, 
28  W.   Va.   113,  57   Am.   Rep.   046:    jxist,  note  to   §1154. 

^  Bacon  v.  Bronson,  7  dohns.  Ch.  201.  11  Am.  Dee.  440.  In  Xov.  .lerscy:  An- 
derson V.  Eggers,  (N.  J.  Eq.)  49  Atl.  578. 

"(jrand  Chute  v.  Winegar,  15  Wall.  273.  2  Ames  Eq.  .Tur.  116:  Insuranrc  C'n. 
V.  Bailey,  13  Wall,  616,  3  Keener  474:  Buzard  v.  Houston.  119  U.  S.  347.  7  Sup. 
(;t.  249,  H.  &  B.  268,  3  Keener  487:  Miller  v.  Scammon.  52  X.  H.  609.  11.  .(I  B. 
265.  Wampler  v.  Wampler^30  Gratt.  454,  3  Keener  480.  1  am  convinced  that  the 
])ractical  surrender  by  the  equity  courts  of  this  country  ot  so  large  a  ])ortion  of 
their  original  and  most  certain  jurisdiction  was  both  unfortunate  and  unne.-^cs- 
sary.  There  are  multitudes  of  cases,  even  for  the  recovery  of  money  alone,  in 
wliich  justice  could  be  administei-ed  and  the  rights  of  both  litigants  prolecicd 
far  better  by  a  trained  judge  than  by  leaving  everything  to  the  rough-and- 
ready  justice  of  an  ordinaiy  jury.  The  English  courts  have  perceived  and  ad- 
mitted this  truth.  Doubtless  the  influence  of  able  cotirts.  like  those  of  ^Massa- 
chuselts,   .Maine,  and    Pcnnsyhniiin.   li;is  been   very  jiowerfnl    in   shaping  the  dr^- 


§  l»l-i  EQUITY     JLKISI'HUDEXCE.  474 

The  language  on  this  subject  often  used  by  judges  represents  near- 
ly the  entire  jurisdiction  of  equity  in  matters  of  fraud,  whatever 
be  the  remedies  granted,  as  concurrent  with  that  at  the  law,  and 
as  not  mi'^in^  where  adequate  legal  relief  can  be  given.  The  inac- 
curacy of  this  mode  of  expression  has  been  shown  in  the  former 
volume.^  The  true  doctrine  is,  that  where  the  estate  or  interest 
is  equitable,  the  jurisdiction  exists  and  Avill  always  be  exercised; 
whrrj  the  estate,  interest,  or  right  is  legal,  and  the  remedies  are 
equitab]3,  the  jurisdiction  always  exists,  but  will  not  always  be 
f^xcrciscJ;  where  the  right  is  legal,  and  the  remedy  is  pecuniary 
anJ  legal,  the  jurisdiction  is  concurrent  and  only  exists  where  the 
remedy  at  law  is  inadequate.*  I  have  placed  in  the  foot-note  a 
rumber  of  recent  decisions,  arranged  in  groups  according  to  tlie 
nalure  of  their  reliefs,  merely  as  examples  and  illustrations  of  the 
doctrine  adopted  by  the  American  courts.^  The  question  whether 
equity  has  jurisdiction  of  suits  merely  for  the  recovery  of  money, 
or  whether  the  action  should  be  at  law,  has,  however,  ceased  to  be 
of  any  practical  importance  in  those  states  which  have  adopted 
the  reformed  procedure.  The  codes  provide  that  all  actions,  simply 
for  tlie  recovery  of  mcney,  without  making  any  exceptions,  must 
be  tried  by  a  jury,  and  the  same  general  rales  of  pleading  are  pre- 
scribed for  all  kinds  of  suits.  It  follows,  therefore,  that  there 
would  be  no  real  distinction  in  the  form,  pleadings,  procedure, 
mode  of  trial,  judgment,  and  execution,  in  those  states,  whether 
the  action  is  regarded  as  equitable  or  legal. 

cisions  of  other  state  tribunals,  the  narrow  and  purely  statutory'  jurisdiction 
of  the  former  states  not,  perhaps,  having  been  suHiciently  obseiTed. 

^See  §§  138.  140.  note,  175,  note,  188. 

*  Quoted  in  Buck  v.  Ward,  07  Va.  209,  33  S.  E.  513.     See  §  178. 

^Cancellation,  jurisdiction  exercised:  Thackrah  v.  Haas,  119  U.  S.  501,  7 
iSup.  Ct.  311,  3  Keener  097,  2  Scott  740;  Commercial  Mut.  Ins.  Co.  v.  McLoon, 
14  Allen  351,  3  Keener  472;   Fuller  v.   Percival,   120  Mass.   381,  3  Keener  483, 

2  Ames  Eq.  Jur.  Ill  ;  Free  v.  Buckingham,  57  X.  11.  05,  3  Keener  478;  Wampler 
V.  Wampler,  30  Gratt.  454,  3  Keener  480.  Same,  jurisdiction  not  exercised: 
Insurance  Co.  v.  Bailey,  13  Wall.  016,  3  Keener  474;  Globe  Ins.  Co.  v.  Keals.  79 
Js.  Y.  202,  3  Keener  485.  The  rule  is  generally  adopted  that  a  suit  will  not  be 
sustained  to  cancel  an  executory,  non-negotiable,  personal  contract, — e.  g.  a 
policy  of  insurance, — ^when  the  fraud  might  be  set  up  as  a  defense  to  an  action 
on  the  contract,  and  there  are  no  special  circumstances  which  would  prevent 
the  defense  from  being  available,  adequate,  and  complete.  Relief  against  judg- 
ments and  actions  at  law,;  see  post,  §  1364.  Pecuniary  recoveries,  jurisdiction  ex- 
ercised: Bosher  v.  Richmond,  etc.,  Co.,  89  Va.  455,  10  S.  E.  300,  37  Am.  St. 
Rep.  879  (recovery  of  money  paid  on  stock  subscription).  Same,  jurisdiction 
not  exercisetl:     Buzard  v.  Houston,  119  U.  S.  347,  7  Sup.  Ct.  249,  H.  &  B.  268, 

3  Keener  487;  Miller  v.  Scammon,  52  N.  H.  009,  11.  &  B.  265;  Teft  v.  Stewart,  31 
]\lich.  307,  H.  &  B.  271.  .Turisdiction  in  administration  matters.  See  post,  <} 
1154.     Impressing  a  trust  on  property  acquired  by  fraud.    See  post,  §S  1053-1056. 


475  ACTUAL    FRAUD.  §  91T 

§  915.  Incidents  of  the  Jurisdiction  and  Relief. — There  are  cer- 
tain incidents  which  are  requisilf  to  the  exercise  of  the  jurisdiction. 
and  to  the  granting  of  any  relief,  and  which  result  partly  from 
the  equitable  conception  of  fraud  itself  in  its  effects  upon  the 
rights  and  liabilities  of  the  two  parties,  and  partly  from  the  theory 
concerning-  remedies  and  their  administration.  These  incidental  re- 
(|uisites  are  referable,  therefore,  to  the  two  following  general  prin- 
ciples: 1.  Fraud  does  not  render  contracts  and  other  transactions 
absolutely  void,  but  merely  voidable,  so  that  they  may  be  either 
confirmed  or  repudiated  by  the  party  who  had  suffered  the  wrong.' 
2.  If  he  elects  to  repudiate,  and  to  seek  for  a  remedy,  then  equity 
proceeds  upon  the  theory  that  the  fraudulent  transaction  is  a  nul- 
lity; and  it  administers  relief  by  putting  the  parties  back  into  their 
oiio-inal  position,  as  though  the  transaction  had  not  taken  place, 
and  by  doing  equity  to  the  defendant  as  well  as  to  the  plaintiff. 
The  consequences  of  these  two  principles,  which  have  been  alluded 
to.  and  which  remain  to  be  considered,  are  as  follows: — 

§916.  The  Same.  Plaintiff  Particeps  Doli— Ratification.— 1  f  iho 
plaintiff  is  himself  a  party  to  the  fraud,  particeps  doli,  to  such  an 
extent  that  he  is  in  pari  delicto  with  the  defendant,  he  can  obtain 
no  relief;  equity  does  not,  in  general,  relieve  a  person  from  the 
consequences  of  his  own  actual  fraud.^  The  mere  fact,  however, 
that  the  plaintiff  was  a  party  to  the  wrong  in  any  degree,  and  is 
not  therefore  completely  innocent,  will  not  necessarily  deprive  him 
of  relief,  defensive  or  even  affirmative.  If  he  is  not  in  pari  de- 
licto, and  is  comparatively  the  more  innocent  of  the  tAvo,  he  may 
obtain  relief  by  doing  full  equity  to  those  parties,  if  any,  who  have 
sustained  injury  by  his  partial  wrong.-  While  the  party  entitled 
t()  relief  may  either  avoid  the  transaction  or  confirm  it.  he  cannot 
do  both ;  if  he  adopts  a  part,  he  adopts  all ;  he  must  reject  it  entirely 
if  he  desires  to  obtain  relief."  Any  material  act  done  by  him.  with 
knowledge  of  the  facts  constituting  the  fraud,  or  under  such  cir- 
cumstances that  knowledge  must  be  imputed,  which  assumes  that 
tlie  transaction  is  valid,  will  be  a  ratification.* 

§  917.  Promptness — Delay  throug-h  Ignorance  of  the  Fraud. — 
The  most  important  practical   consequence   of  the  two   princii)les 


'Noslcy  V.  Lindsay,  67  Pa.  St.  217,  228,  5  Am.  Rep.  427;  Howard  v.  Turner, 
155  Pa.  St.  349,  20  Atl.  723,  35  Am.  St.  Rep.  883. 

'Roman  v.  Mali,  42  Md.  513;  see  ante,  §  401. 

-Poston  V.  Paleh,  fin  Mo.  115;  see  post,  §  942. 

*  Potter  V.  Titcojiib,  22  Me.  300:  Dennis  v.  .Tones,  44  X.  J.  Eq.  f)!.!.  14  Atl.  913; 
a  Am.  St.  Rep.  8?9. 

*See  ante,  S  897:  posl.  S  9(i4.  Sliaj^pirio  v.  noldborg.  192  U.  S.  232,  24  Sup. 
Ct.  259;  Jlerrill  v.  Wilson,  ('.(i  Midi.  -r.Vl,  33  N.  \A'.  71(5. 


§  018  EQUITY    JUKlSPUrDEXCE.  '  47^ 

above  mentioned  is  the  requisite  of  promptness.  The  injured  party 
nmst  assert  his  remedial  rights  with  diligence  and  without  delay, 
upon  becoming  aware  of  the  fraud.  After  he  has  obtained  knowl- 
edge of  the  fraud,  or  has  been  informed  of  facts  and  circumstances 
from  which  such  knowledge  would  be  imputed  to  him,  a  delay  in 
instituting  judicial  proceedings  for  relief,  although  for  a  less  period 
than  that  prescribed  by  the  statute  of  limitations,  may  be,  and  gen- 
erally ■will  l)e;,  regarded  as  an  acquiescence,  and  this  may  be,  and  gen- 
erally will  be,  a  bar  to  any  equitable  remedy.^  To  this  rule  there 
is  one  limitation:  it  applies  only  when  the  fraud  is  known  or  ought 
to  have  been  knoAvn.  No  lapse  of  time,  no  delay  in  bringing  a 
suit,  however  long,  will  defeat  the  remedy,  provided  the  injured 
party  was,  during  all  this  interval,  ignorant  of  the  fraud.  Tlie 
duty  to  com.menee  proceedings  can  arise  only  upon  his  discovery  of 
the  fraud;  and  the  possible  effect  of  his  laches  will  begin  to  operate 
only  from  that  time.- 

§  918.  Persons  against  Whom  Relief  is  Granted. — The  remedy 
which  equity  gives  to  the  defrauded  person  is  most  extensive.  It 
reaches  all  those  who  wove  actually  concerned  in  the  fraud,  all 
who  directl.y  and  knowinglj^  participated  in  its  fruits,  and  all  those 
who  derive  title  from  them  voluntarily  or  with  notice.  "A  court 
of  equity  will  wi'cst  property  fraudulently  accjuiird,  u^t  only  from 
the  perpetrator  of  the  fraud,  but,  to  use  Lord  Cottenham's  lan- 
guage, from  his  children  and  his  children's  children,  or,  as  else- 
where said,  from  any  persons  amongst  whom  he  may  have  parceled 
out  the  fruits  of  his  fraud. "^  There  is  one  limitation:  if  the  property 
M'hich  was  acquired  by  the  fraud  has  come  by  transfer  into  the 
hands  of  a  bona  fide  purchaser  for  a  valuable  consideration  and 
without  notice,  even  though  his  immediate  grantor  or  assignor  was 
the  fraudulent  party  himself,  the  hands  of  the  court  are  stayed,  and 
the  remedy  of  the  defrauded  party,  wnth  respect  to  the  property' 
itself,  is  gone;  his  only  relief  must  be  personal  against  those  who 
committed  the  fraud."  To  this  limitation  there  is,  however,  an  ex- 
ception, where  the  general  rule  giving  relief  applies  even  as  against 
a  bona  fide,  purchaser.  Where  an  owner  has  been  apparently  de- 
prived of  his  title  by  a  fraudulent  conveyance  or  assignment  which 

^Badger  v.  Badoer,  2  Wall.  87,  2  Scott  706;  Allore  v.  Jewell,  04  V.  8.  500, 
512.  H.  &  B.  320.  Sli.  100;  Calhoun  v.  Millard,  121  N.  Y.  77.  24  X.  E.  27.  S  L. 
R.  A.  248,  1  fScott  388;  Milms  v.  Pabst  Brewing  Co.  03  Wis.  153,  GO  N,  W.  518; 
57  Am.  St.  Rep.  SUC.     See  ante,  §§  817.  810.  820.  807. 

=  Rolfe  V.  Gregory.  4  De  Gex,  J.  &  S.  570:  Mielinnd  v.  Oirod.  4  How.  503.  501, 
Sh.  181 ;  Phalen  v.  Clark,  10  Conn.  421.  50  Am.  Dec.  203. 

^  Vane  v.  Vane,  L.  R.  8  Ch.  383,  307,  per  James,  L.  J.     See  ante.  S  800. 

^Stephens  v.  Board,  70  X.  Y.  183.  35  Am.  Rep.  511;  Martin  v.  Robinson.  67 
Tex.  308,  3  S.  W.  550.     See  ante.  §  777. 


477  ACTUAL   i'i:aud.  §01'> 

ia  void,  as  where  he  was  procured  to  execute  it  by  the  fraudulent 
representation  and  under  the  conviction  that  it  was  an  entirely  dif- 
ferent instrument,  or  where  it  was  fraudulently  executed  in  his 
name  without  any  authority  express  or  implied,  or  where,  after  be- 
ing executed  by  him  for  one  purpose,  it  was  fraudulently  altered 
without  his  knowledge  oi-  authority,  so  as  to  include  the  property, 
or  where  ^t  was  a  forgery,  and  he  has  done  no  collateral  act  with 
reference  to  it  which  might  amount  to  an  equitable  estoppel  by 
conduct,  and  the  property,  by  means  of  such  transfer,  comes  into 
the  hands  of  a  purchaser  for  value  and  without  notice,  the  original 
defrauded  owner  is  not  barred  of  his  remedy."  Equity  will  relieve 
by  canceling  the  fraudulent  apparent  transfer,  and  by  compelling 
a  reconveyance  or  reassignment,  even  as  against  the  holder  who  is 
innocent  of  wrong;  the  doctrines  of  equitable  estoppel  and  of  bona 
fide  purchase  do  not  apply  under  these  circumstances.  Such  is  the 
doctrine  announr-ed  by  decisions  of  the  highest  authority. 

§  919.  Particular  Instances  of  Jurisdiction. — I  shall  conchulc 
this  discussion  of  actual  fraud  by  enumerating  some  well-settled 
instances  of  the  jurisdiction  which  deserve  a  special  mention.  In 
several  of  them  the  fraud  atfects  third  persons  rather  than  the 
inimediate  party  to  the  transaction;  but  in  all  a  fraudulent  inten- 
tion, or  what  equity  regards  as  tantamount  to  such  an  intention,  is  a 
necessary  element,  and  they  may  all,  therefore,  be  properly  grouped 
under  the  head  of  actual  fraud.  Judgments:  When  a  judgment  o)' 
decree  of  any  court,  whether  inferior  or  superior,  has  been  ob- 
tained by  fraud,  the  fraud  is  regarded  as  perpetrated  upon  the 
curt  as  well  as  upon  the  injured  party.  The  judgment  is  a  mere 
nullity,  and  it  may  be  attacked  and  defeated  on  account  of  the 
fi'aud.  in  any  collatoi-al  proceeding  brought  upon  it  or  to  enforce 
it.  at  least  in  the  same  court  in  which  it  was  rendered.^  .... 
Although  the  fraud  may  thus  be  set  up  by  way  of  defense,  the 
equitable  jurisdiction  to  cancel  and  set  aside  or  to  restrain  judg- 
ments and  decrees  of  any  court  which  have  been  obtained  by  a 
fi'aud  practiced  upon  the  court  and  the  losing  party,  is  well  settled 
and  familiar."  Awards:  The  jurisdiction  to  set  aside  and  cancel 
awards  was  settled  at  a  very  early  day,  and  it  still  exists,  except 


•'Tay!©!'  v.  Great  Indian  PvV..  4  Do  Hex  &  .T.  550,  574;  County  of  Schuylkill  v. 
Copley,"  07  Pa.  St.  .386,  5  Am.  Rep.  441. 

'Hojjff  V.  Link.  00  Tnrl.  34fi:  Eltin^  v.  First  Nat.  T?ank.  173  Til.  ''fiS,  ^0  X.  E. 
1005.    See  tnrl  her.  as  to  relief  apfainst  judgments  obtained  by  fraud,  post,  <?  /364. 

=  A  jndsinenl  will  not,  liowevor.  be  set  aside  on  llie  tironnd  of  fraud,  when 
the  ver^-  same  fraud  alleijod.  and  llie  same  questions  eoneernins;  it.  were  pre- 
sented by  the  issues,  litiiraied.  and  rlooided  by  the  enui-ts  in  the  judgment 
which  is  attacked:     United  States  v.  Throckmorton,  OS  U.  S.  61. 


§  931  EQUITY     JUlUSrRUDEXCE. 


478 


so  far  as  it  has  been  regulated  or  taken  away  by  statute.'-     Fraudu- 
Icni  bequests:*     ... 

§  920.  The  Same.  Trusts:  One  of  the  most  important  effects  of 
fraud,  and  most  striking  illustrations  of  the  equity  jurisdiction,  is 
found  in  the  theory  of  trusts  arising  by  operation  of  law.  When 
property  subject  to  a  trust  is  fraudulently  transferred,  or  when 
one  person,  in  fraudulent  violation  of  his  fiduciary  duty,  acquires 
property  which  equitably  belongs  to  another,  or  Avhen  one  person 
by  his  actual  fraud  obtains  the  title  to  property  in  which  another 
is  beneficially  interested,  equity  may  work  out  and  protect  the 
rights  of  the  beneficial  owner  by  regarding  the  property  as  though 
it  were  actually  impressed  with  a  trust  in  the  hands  of  the  one 
who  holds  the  legal  title,  by  treating  such  person  as  though  ho 
were  an  actual  trustee,  and  by  enforcing  such  trust  by  means  of 
a  conveyance,  accounting,  payment,  injunction,  and  other  appro- 
priate remedies.  There  is  no  other  effect  of  fraud  more  remark- 
able, and  none  which  exhibits  more  clearly  the  power  of  courts  of 
equity  to  deal  with  the  substantial  realities  under  the  appearance 
of  external  forms. ^ 

^  921.  The  Statute  of  Frauds  not  an  Instrument  of  Fraud. — It 
is  a  most  important  principle,  thoroughly  established  in  equity, 
and  applying  in  every  transaction  where  the  statute  is  invoked,  that 
the  statute  of  frauds,  having  been  enacted  for  the  purpose  of  pre- 
venting fraud,  shall  not  be  made  the  instrument  of  shielding,  pro- 
tecting, or  aiding  the  party  who  relies  upon  it  in  the  perpetration 
of  a  fraud,  or  in  the  consummation  of  a  fraudulent  scheme.^  This 
most  righteous  principle  lies  at  the  basis  of  many  forms  of  equit- 
able relief,  among  which  are  the  specific  enforcement  of  verbal 
agreements  for  the  sale  of  land  which  have  been  partly  per- 
formed, the  reformation  and  enforcement  of  agreements  and  con- 
veyances imperfect  through  fraud  or  mistake,  the  cancellation  of 
fraudulent  agreements  and  conveyances,  and  tlie  like.  One  parti- 
cular instance  of  relief  will  be  mentioned  as  an  illustration.  Where 
an  agreement  has  been  verbally  made  which  the  statute  requires 
to  be  in  writing,  and  through  the  actual  fraud  of  one  party  the 
execution  of  the  written  instrument  is  prevented,  and  the  other 
part}'  is  induced  to  accept  and  rely  upon  the  verbal  agreement  as 
valid  and  binding,  a  court  of  equity  will  not  permit  the  frauduhmt 

•■'Smith  V.  Whitiiiore,  2  De  (tpx,  J.  &  S.  297:  Hartford  Fire  Ins.  Co.  v.Boniipr 
(\)..  44  Fed.  1;"T,  11  J..  E.  A.  02.3:  Brusli  v.  Fisher,  70  .Alieh.  4(i<),  .38  N.  W.  440, 
14  Am.  St.  Kep.  510. 

*  See  post,  !$  1054. 

'See   post,   the    sections    on    fonslructive    trusls. 

MVoodbury  v.  Gardner,  77  Me.  08;  ^Yood  v.  Rabe,  9G  X.  Y.  414,  48  Am. 
Eep.   640. 


ild  CO-XtiTKLCTlVK   IKAUD. 

party  to  set  up  the  statute  ui'  liaucLs  as  a  defense,  but  will  enforce 
die  agreement  against  liini,  although  it  is  merely  verbal.  Of  course, 
there  must  be  actual  fraud  as  the  distinguishing  feature  of  the 
transaction, — something  more  than  the  mere  omission  to  put  the 
contract  into  writing.  The  plaintiff  must  be  induced  through  the 
vleceit,  false  statements,  or  concealments  of  the  other  party  to  waive 
a  written  instrument,  and  to  rely  upon  the  parol  undertaking.  The 
same  relief,  it  seems,  will  be  given  when  the  execution  of  a  written 
c-ontract,  otherwise  fully  agreed  upon,  is  prevented  bj'-  an  inevit- 
able accident,  as  by  the  death  of  a  party.- 


SECTION  IV. 

C0XSTRUCT1\'E   FRAUD. 

ANALYSIS. 

§  922.  Definition:    ertscntijil    clcnicnts. 

§   923.  Three   principal    classes. 
§§   924-942.  First.     Constructive  fraud   apparent   from   the  inlrinsie   nature  and 
.subject  of  the  transaction  itself. 

§   925.  1.  Inadequacy   of   consideration. 

§   926.  Inadequacy  pure  and  simple. 

S  927.  Gross  inadequacy  amounting  to  fraud. 

S   92S.   Inadeqiuicy    coupled   with   other   inequitable    incidents. 
§§   929-930.  11.  Illegal   contracts   and   transactions. 

§   930.   1.  Contracts    illegal    because    contrary    to    statute:    usury,    gaining, 
smuggling. 
§S   931-935.  2.  Transactions    illegal    because    opposed    to    jmblic    policy. 

S  931.  A.  Contracts  interfering  with  the  freedom  of  marriage;  marriage 
brokerage;  in  restraint  of  marriage;  rewards  for  marriage; 
secret  contracts  in  fraud  of  marriage;  secret  contracts  to  marry: 
rewards    for    jirocuring    wills. 

§   932.  Agreements   for  ;i   se])aration. 

S  933.  B.  Conditions  and  limitations  in  restraint  of  marriage. 

§  934.  C.  Contracts  directly  belonging  to  and  affecting  business  relalinns; 
restraint  of  trade:  inteifering  with  bidding  at  auctions  and 
governnicnta!  Idtiiigs:  ])u(lers;  fraudulent  trade-marks;  violat- 
ing policy  of  statutes  prescribing  business  methods;  trading  with 
alien    eiiemies. 

§  935.  D.  Contracts  atTecting  public  relations;  interfering  with  the  elcf- 
tion  or  appointment  of  officers:  interfering  with  legislative  jirn- 
eeedings ;  ditto,  executive  proceedings;  ditto,  judicial  iirocccd- 
ings. 

^Montacute  v.  :\laxwel].  1  \\  Wms.  OlS,  1  Strange  23(1.  1  Eq.  Cas.  Abr.  19. 
1  Ames  Eq.  Jur.  27,  2  Keener  623;  Cookes  v.  Mascall,  2  Vernon  200,  2  Keener 
748;  \\o(»(l  V.  .Midgh'v.  5  De  (lex,  M.  &  C.  41,  2  Keener  750,  1  Scott  402:  Peek 
V.  Peek.  77  Cal.  10(i,  11  Am.  .St.  Rep.  244,  19  Pae.  227,  1  L.  R.  A.  185,  1  Scott 
403,  2  Keener  750. 


§  923  EQUITY    Jl'RISPr.UDEXCE.  480 

§   930.  3.  Contracts    illegal    because    opposed    to    good    morals:     for    illicit 
intercourse;    champerty    and    maintenance;    compounding    with    a 
felony  or  preventing  a  prosecution. 
§S   937-942.   111.   Equitable  jurisdiction  in  case  of  illegal  contracts. 

S   937.  In  usurious  contracts;   usurious  mortgages. 

§  938.  In  gaming  contracts. 

§  939.  In  other  illegal  contracts;  explanation  of  maxim,  In  pari.  etc. 

S  940.  In  pari  delicto,  general  rules. 

S   941.   In  i)ari  delicto,  limitations  on  general  rules. 

§  942.  Not  in  pari  delicto. 
§§   943-965.  Second.  Constructive   fraud    inferred   from   the   condition   and   rela-- 
tion.s  of  the  immediate  parties  to  the  transaction. 

S  943.  General  description  and  divisions. 
§§  944-954.  1.  Transactions  void   or  voidal^le   with   persons   wholly   or   partially 
incapacitated. 

S   945.  Coverture:   infancy. 

§   946.  Insanity. 

§   947.  Mental   weakness. 

?!   948.  Persons  in  vinculis;  ditto,  illiterate  or  ignorant. 

S   949.    Intoxication. 

§   950.  Duress. 

§   951.   Indue   influence. 

§   952.  Sailors. 

§  953.  Expectants,  heirs,  reversioners. 

§   954.  Post  obit  contracts. 
§§  955-905.  II.  Transactions  presumptively  invalid  between  persons  in  fiduciary 
relations. 

§   955.  Circumstances  to  which  the  principle  applies. 

§  956.  The  general  principle. 

§   957.  Two  classes  of  cases  in  which  it  operates. 

§   958.  Trustee  and  beneficiary. 

§   959.  Principal  and  agent. 

§  960.  Attorney  and   client. 

§  9(il.  Guardian  and  ward. 

§   902.  Parent   and   child. 

§   963.  Other   relations;    executors   and   administrators;    physician   and   pa- 
tient:   spiritual  advisors:    husband  and  wife:    partners,   etc. 

§   904.  Confirmation  or  ratification. 

S   905.  Acquiescence  and  lapse  of  time. 
§§   966-974.  Third.     Frauds   against   third    ]iers(ms   who   are   not    parties   to   the 
transaction. 

§   967.  Secret   bargains   accompanying   compositions   with    creditors. 

§   968.  Conveyances   in   fraud   of   creditors. 

§   969.  The  consideration. 

§   970.  The  fraudulent  intent. 

§  971.  Modes  of  ascei'taining  the  intent. 

§  972.  Existing  creditors. 

§  973.  Subsequent  creditors. 

§   974.  Conveyances  in  fraud  of  subseqiu-nt  jnirchasers. 

§  922.  Definition — Essential  Elements. — The  term  ''constructive 
fraud"  is  not  a  very  appropriate  one.  but  has  been  used  so  lonof 
that  any  attempt  to  substitute  another  in  its  place  Avould  be  useless. 


481  COXSTKUCTIVK    FlIAUD.  §  1>23 

It  is  important,  however,  to'  form  an  accurate  notion  of  the  mean- 
ing yiven  to  it  in  equity,  and  of  the  peculiar  element  or  criterion 
which  distinguishes  the  various  classes  of  cases  belonging  to  it.  The 
distinguishing  element  of  actual  fraud,  as  has  been  shown,  is  al- 
ways untruth  between  the  two  parties  to  the  transaction,  so  that 
actual  fraud  may  be  reduced  to  misrepresentations  and  conceal- 
ments. This  untruth  at  law  must  be  virtually  intentional, — a  false- 
hood ;  in  equity  the  intention  is  not  so  essential.  Untruth  is  not  the 
distinguishing  element  of  constructive  fraud;  it  is  never  essential 
tliat  there  should  be  untruth  between  the  immediate  parties  to 
a  transaction,  in  order  that  it  may  come  within  the  denomination 
of  constructive  fraud;  in  a  great  many  instances  it  would  be  im- 
possible to  predicate  untruth  of  the  wrong-doer's  conduct.^  Con- 
structive fraud  is  simply  a  term  applied  to  a  great  variety  of  trans- 
actions, having  little  resemblance  either  in  form  or  in  nature,  wdiieh 
e(iuity  regards  as  wrongful,  to  which  it  attributes  the  same  or  sim- 
ihir  ett'ects  as  those  which  follow  from  actual  fraud,  and  for  whieli 
it  gives  the  same  or  similar  relief  as  that  granted  in  cases  of  real 
fraud.  It  covers  different  grades  of  wrong.  It  embraces  contracts 
iiU^gal,  and  therefore  void  at  law  as  well  as  in  equity;  transactions 
voidable  in  equity  because  contrary  to  public  policy;  and  transac- 
tions which  merely  raise  a  presumption  of  wrong,  and  throw  upon 
the  party  benefited  the  burden  of  proving  his  innocence  and  the 
absence  of  fault. - 

§  923.  Three  Principal  Classes.— In  the  great  case  of  Chester- 
fit'ld  V.  Janssen,  cpioted  in  the  preceding  section,  Lord  Hardwicke, 
after  mentioning  actual  fraud,  added  the  three  other  following 
classes:  1.  That  apparent  from  the  intrinsic  nature  and  subject  of 
the  bargain  itself;  2.  That  presumed  from  the  circumstances  and 
(M)iidition  of  the  immediate  i^arties  to  the  transaction;  3.  That 
Avhieh  is  an  imposition  on  third  persons  not  parties  to  the  trans- 
action.    As  these  three  groups  constitute  the  constructive  fraud  of 

'  11  siioiilcl  be  carpfully  observed  liowever,  that  in  certain  instances  of  con- 
st met  ive  fraud,  althouyli  there  is  no  element  of  untruth  whatever  between  the 
two  immediate  parties  to  the  transaction — the  grantor  and  s'ni"<pc.  donor  and 
donee,  promisor  and  promisee — there  is  such  an  element,  and  even  ]ierha])s 
an  intention  to  deceive,  towards  a  third  person,  not  a  party  to  tlie  transaction, 
who  is  the  one  defraiided,  and  who  obtains  relief:  e.  p..  a  conveyance  by  A  to  T> 
witli  intent  to  defraud  A's  creditors.  This  particular  species  has.  thej'efore.  a 
stronpf  analogy  to  actual  fraud,  and  the  cases  belonging  to  it  are  governed,  to  a 
great  extent,  by  the  rules  of  actual   fraud. 

■■'The  term  "presumptive  fraud"  is  sometimes  used  as  a  substitute  for  ''con- 
structive fraiul."  but  improperly.  In  a  great  number  of  instances  tltere  is  no 
presumption  of  fraud,  in  the  true  sense  of  that  word;  and  no  such  presumption 
could  possibly  arise. 

31  ._ 


§  9;;?G  Et^UlTV    JUiasil'KLDEXCE.     '  482 

equity,  the  classification  of  the  great  chancellor  will  be  adopted  in 
I  he  discussions  of  the  p^-esent  section. 

§  924.  First.  Constructive  Fraud  Apparent  from  the  Intrinsic 
Nature  and  Subject  of  the  Transaction  Itself. — This  class  includes 
tliree  principal  subjects:  1.  Inadequacy  of  consideration;  2.  Con- 
tiacts  illegal  because  opposed  to  statute,  or  to  public  policy,  or  to 
eood  morals;  and  3.  Certain  transactions  which,  in  analogy  with 
contracts,  equity  regards  as  contrary  to  public  policy,  and  therefore 
illegal.  I  shall  specify  these  various  instances  with  as  much  ex- 
planation as  may  be  needed  to  exhibit  the  doctrines  peculiar  to 
equity,  and  shall  then  describe  the  equitable  jurisdiction  which  they 
occasion,  and  the  reliefs,  defensive  or  affirmative,  which  may  be 
obtained  by  its  means. 

§  925.  I.  Inadequacy  of  Consideration. — Inadequacy  of  consid- 
eration must  ordinarily  occur  either  in  conveyances,  executed  or 
executory  contracts  of  sale,  or  in  agreements  analogous  to  sale 
where  there  is  a  subject-matter  transferred  or  dealt  Avith,  and  a 
price  paid  or  to  be  paid.  It  may  exist  in  the  price  or  in  the  sub- 
ject-matter, the  latter  ease  being  the  same  as  exorbitancy  of  price. 
It  necessarily  implies  that  the  price  is  either  too  small  or  too  great. 
The  former  is  the  condition  ordinarily  meant  by  inadequacy,  and 
is  plainly  more  susce^^tible  of  judicial  investigation  than  the  other. 
En  both  these  forms  inadequacy  of  consideration  will  be  considered  : 
1.  By  itself  free  from  any  other  fact;  2.  As  connected  with  other 
inecjuitable  facts  and  circumstances. 

§  926.  Inadequacy  Pure  and  Simple. — The  rule  is  well  settled 
that  where  the  parties  were  both  in  a  situation  to  form  an  indepen- 
dent judgment  concerning  the  transaction,  and  acted  knowinoly 
i'.nd  intentionally,  mere  inadequacy  in  the  price  or  in  the  subject- 
matter,  unaccompanied  by  other  inequitable  incidents,  is  never  of 
itself  a  sufficient  ground  for  canceling  an  executed  or  executory 
[•ontract.  If  the  parties,  being  in  the  situation  and  having  the 
fibility  to  do  so,  have  exercised  their  own  independent  judgment 
fi«  to  the  value  of  the  subject-matter,  courts  of  equity  should  not 
and  Avill  not  interfere  with  such  valuation.^  In  some  of  the  earlier 
;lecisions,  mer.e  inadequacy,  either  in  the  price  or  in  the  value  of 
the  subject-matter,  was  held  to  be  a  sufficient  hardship  which  might 
lefeat  the  specific  performance  of  an  executory  contract  when  set 
ap  as  a  defense.-    The  doctrine,  hoAvever,  is  now  settled,  that  mere 

^Seymour  v.  Delancey,  3  Cow.  445,  1.5  Am.  Dec.  270,  2  Keener  772:  PViillips 
V.  Pullen,  45  N.  J.  Eq.  5,  IG  Atl.  9,  H.  &  B.  .308;  Pennybacker  v.  Laidley, 
33  W.  Va.  024,  11   S.  E.  30,  3  Keener  493. 

'■'Diiy  V.  Newman,  2  Cox  77,  and  cited  10  Ves.  300,  2  Scott  227;  Seymour 
V.  Delancey,  5  Jolms.  Ch.  222,  224,  225,  per  Kent,  Ch- 


i83  coxsTi;rcT[VK  ruAUD.  §  927 

inadequacy — that  is,  inequality  iii  value  between  the  subject-matter 
and  the  price — is  not  a  ground  for  refusing  the  remedy  of  specific 
performance;  in  order  to  be  a  defense,  the  inadequacy  must  either 
be  accompanied  by  othei  inequitable  incidents,  or  must  be  so  gross 
as  to  show  fraud.  In  short,  inadequacy  as  a  negative  defense,  and 
ns  an  affirmative  ground  for  a  cancellation,  is  governed  by  one  and 
the  same  rule.^  When  a  sale  is  made  at  public  auction,  conducted 
in  a  fair  and  open  manner,  with  opportunity  for  real  competition, 
the  rule  is  even  stronger,  for  fraud  cannot  then  be  inferred  from 
any  inadequacy  in  the  price,  without  other  circumstances  showing- 
bad  faith.*  The  particular  case  of  selling  an  expectancy  or  rever- 
sion for  an  inadequate  price,  which  is  in  some  respects  an  exception 
to  the  foregoing  general  rule,  is  considered  in  the  subsequent  sec- 
tion.^ 

;^  927.  Gross  Inadequacy  Amounting  to  Fraud. — Although  the 
actual  cases  in  which  a  contract  or  conveyance  has  been  canceled 
on  account  of  gros>j  inadequacy  merely,  without  other  inequitable 
incidents,  are  very  few,  yet  the  doctrine  is  settled,  by  a  consensus 
of  decisions  and  dicta,  that  even  in  the  absence  of  all  other  cir- 
cumstances, when  the  inadequacy  of  price  is  so  gross  that  it  shocks 
the  conscience,  and  furnishes  satisfactory  and  decisive  evidence 
of  fraud,  it  will  be  a  sufficient  ground  for  canceling  a  convej^anee 
or  contract,  whether  executed  or  executory.  Even  then  fraud,  and 
not  inadequacy  of  price,  is  the  true  and  only  cause  for  the  inter- 
position of  equity  and  the  granting  of  relief.^ 

•  Coles  V.  Trecothick,  9  Ves.  24G,  2  Keener  768 ;  Buirowes  v.  Lock,  10  Ves. 
470,  1  Ames  Eq.  Juv.  263;  Abbott  v.  Sworder,  4  De  Gex  &  S.  448,  2  Keener 
793;   Seymour  v.  Delancey,  3  Cow.  445,  1.")  Am.  Dee.  270,  2  Keener  772. 

MVhite  V,  Damon,  7  Ves.  30;  Garden  v.  Lane,  48  Ark.  219,  2  S.  W.  709,  .•? 
Am.  St.  Rep.  228. 

^  See  post,  §  953, 

^  G\\ynne  v.  Heaton,  1  Brown  Ch.  1,  9,  3  Keener  505,  per  Lord  Thui-low: 
"An  inequality  so  strong,  gross,  and  manifest  that  it  must  be  impossible  to 
state  it  to  a  man  of  common  sense  Avithout  pi'odiieing  an  exclamation  at  the 
inequality  of  it."  Coles  v.  Trecothick,  9  Ves.  234,  246,  2  Keener  708;  Summers. 
V.  Crilliths,  35  Beav.  27,  3  Keener  509;  Falcke  v.  Gray,  4  Drew.  651,  H.  &  K 
(-.55;  Phillips  v.  Pullen,  45  N.  J.  Eq.  5,  16  Atl.  9,  H.  &  B.  308;  Butler  v.  Haskell, 
4  Desaus.  Eq.  051,  2  Scott  074. 

'File  rule  is  ordinarily  stated  that  the  inadequacy  must  be  so  gross  that 
it  is  conclusive  evidence  of  fraud.  It  is  so  laid  down  by  earlier  judges,  and 
by  ^Ir.  Kerr.  The  rule  had  its  origin  at  a  time  when  fraud  was  generally 
inferred  by  presumptions  of  law,  and  often  by  conclusive  presumptions.  In 
tlic  present  condition  of  the  law  on  the  subject  of  fraud,  Ihis  mode  of  for- 
mulating the  rule  seems  to  he  erroneous.  Tin-  principle  is  now  almost 
universally  adopted,  that  fraud  is  a  fact,  inferred,  like  other  eonclusicms  of 
fad,  from  Ihe  evidence:  no  rule  of  law  can  therefore  ho  laifl  down  as  to 
+  ''t>  qniount  of  inadequacy  necessary  1o  produce  Iho  re-iulting  fraud.  Inadequacy 
■>i    consideration    niav    be    evidence    of    fr;niil.    -light     ov    ucnverfid.    yct^ordini;-    to 


^  \):iii  EQi'iTY   J  I  i;isi'i;ri)i;xcK.  484 

§  928.    Inadequacy  Coupled  with  Other  Inequitable  Incidents.— 

1l  there  is  notlnng  but  mere  inadeciuacy  of  price,  the  case  must  be 

its  amount,  and  other  circumstances.  When  it  is  satisfactory  and  decisive 
evidence — when  from  the  proof  of  inadequacy  the  court  or  juiy  are  convinced 
Ihat  fraud  as  a  fact  did  exist — then  the  relief  is  granted.  Instead,  therefore, 
of  repeating  the  usual  formula  which  has  been  handed  down  for  generations,  that 
1  iic  inadequacy  must  be  conclusive  evidence  of  fraud,  I  have  said  in  the  text 
it  must  be  satisfactory  and  decisive  evidence;  the  former  mode  represented 
fraud  as  the  result  of  a  conclusive  legal  presumption;  the  latter  treats  it  as 
a  conclusion  of  fact  drawn  from  the  evidence,  and  is  therefore  in  perfect 
liariiiony  with  the  theory  which  now  prevails  in  most,  if  not  all,  of  the 
stales.  The  following  seems  to  be  the  true  rationale  of  the  doctrines  concerning 
iiiatlequacy  of  price.  Whenever  it  ajipears  that  the  parties  have  knowingly  and 
deliberately  fixed  upon  any  price,  however  great  or  however  small,  there  is  no 
occasion  nor  reason  for  interference  by  courts,  for  owners  have  a  right  to  sell 
property  for  what  they  please,  and  buyers  have  a  right  to  pay  what  they  please: 
.See  Harris  v.  Tyson,  24  Pa.  St.  347,  360,  64  Am.  Dec.  661,  3  Keener  .561. 
lUit  where  there  is  no  evidence  of  such  knowledge,  intention,  or  deliberation 
by  tlie  parties,  the  disproportion  between  the  value  of  the  subject-matter 
and  tlie  price  may  be  so  great  as  to  warrant  the  court  in  inferring  therefrom 
the  fact  of  fraud.  Such  a  gross  inadequacy  or  disproportion  will  call  for  ex- 
planation, and  will  shift  the  burden  of  proof  upon  the  party  seeking  to 
enforce  the  contract,  and  will  require  him  to  show  affirmatively  that  the 
l)rice  was  the  result  of  a  deliberate  and  intentional  action  by  the  parties;  and 
if  the  facts  do  prove  such  action,  the  fact  of  fraud  will  be  more  readily  and 
clearly  inferred.  I  do  not  mean  that  judges  and  juries  are  no  longer,  under 
any  circumstances,  aided  by  legal  presumptions  in  dealing  with  fraud.  The 
juimber  of  instances,  however,  in  which  legal  presumptions  are  invoked  has  been 
very  much  lessened;  the  issue  of  fraud  or  no  fraud  is  generally  decided  in  the 
same  manner  as  any  other  issue  of  fact. 

The  llonian  law  adopted  a  fixed  standard  by  which  to  determine  all  cases 
of  inadequacy,  which  was  one— lialf  of  the  real  value  of  the  subject-matter 
when  that  consisted  of  immovable  property.  If  the  price  was  less  than 
one-half  of  the  real  value,  the  seller  could  compel  the  buyer  to  elect  either 
to  rescind,  restore  tiie  thing  and  take  back  the  price,  or  to  affirm  and 
make  up  the  deficiency:  Code,  lib.  14,  tit.  44,  sec.  2;  and  see  Burrowes  v.  Lock, 
TO  Ves.  470,  474,  1  Ames  Eq.  Jur.  263,  per  Sir  William  Grant.  A  like  method 
is  found  in  the  French  law.  fSuch  arbitrary  rules  are  entirely  contrary  to 
llie  spirit  of  our  law,  and  our  metliods  of  administeri'ig  justice.  If  the  pricei 
was  less  than  one-half  of  the  value  of  the  subject-matter,  and  there  were  no 
circumstances  showing  an  intention  on  the  part  of  the  vendor  to  confer  a 
bounty  or  favor,  the  sale  would  doubtless  be  set  aside.  Wliere  the  circum- 
stances show  that  a  favor  or  bounty  was  intended,  the  inference  of  fraud  is 
necessarily  destroyed;  even  a  pure  gift  would  be  sustained:  \\halley  v.  Whalley, 
1  Mer.  436.  As  to  the  time  of  tlie  inadequacy,  in  order  that  it  may  ever  be  fatal, 
it  must  exist  at  the  concluding  of  the  contract.  If  there  was  no  inadequacy 
at  the  making  of  tlie  contract,  none  can  arise  from  subsequent  events  or  change 
of  circumstances:  Batty  v.  Lloyd,  1  Vern.  141,  2  Scott  672,  3  Keener  504: 
hee  V.  Kirby,  104  Mass.  420,  2  Scott  300.  See,  however,  the  somewhat  re- 
markable case  of  Willard  v.  Tayloe,  8  Wall.  557,  1  Ames  Eq.  Jur.  404,  2  Scott 
33,  2  Keener  1026,  Shep.  112,  wln'ch  was  really  an  instance  of  the  price  becoming 
inadequate  liy  snlisoquent  cvc^nts. 


485  *        coNsi'i;!  (  ri\  K   fkatd.  §  930 

extreme,  in  order  to  call  for  the  interposition  of  eiiuity.    Where  the 
inadequacy  does  not  thus  stand  alone,  but  is  accompanied  by  other 
inequitable  incidents,  the  relief  is  much  more  readily  granted.    But 
even  here  the   courts  have  established  clearly  marked  limitations 
upon  the   exercise   of  their   remedial   functions,   which    should   be 
carefully  observed.     The  fact  that  a  conveyance  or  other  transac- 
tion wf-s  made   without   professional   advice   or  consultation   with 
friends,  and  was  improvident,  even  coupled  with  an  iuade(iuacy  of 
price,  is  not   of  itself  a  sufficient  ground  for   relief,   provided  the 
parties  were  both  able  to  judiie  and  act  independently,  and  did 
act  upon  equal  terms,  and  fully  understood  the  nature  of  the  trans- 
action, and  there  was  no  undue  influence  or  circumstance  of  oppres- 
sion.^    When  the  accompanying  incidents  are  inequitable  and  show 
bad  faith,  such  as  concealments,  misrepresentations,  undue  advan- 
tage, oppression  on  the  part  of  the  one  who  obtains  the  benefit,  or 
ignorance,  weakness  of  mind,  sickness,  old  age,  incapacity,  pecu- 
niar}^ necessities,  and  the  like,  on  the  part  of  the  other,  these  cir- 
cumstances, combined  with  inadequacy  of  price,  may  easily  induce 
a  court  to  grant  relief,  defensive  or  atfirmative.     It  would  not  be 
correct  to  say  that  such  facts  constitute  an  absolute  and  necessary 
ground  for   equitable   interposition.      They   operate   to   throw   the 
heavy  burden  of  proof  upon  the  party  seeking  to  enforce  the  trans- 
action or  claiming  the  benefits  of  it,  to  show  that  the  other  acted 
voluntarily,   knowingly,   intentionally,   and   deliberately,   with    full 
knowledge  of  the  nature  and  effects  of  his  acts,  and  that  his  con- 
sent Avas  not  obtained  by  any  oppression,  undue  influence,  or  undue 
advantage  taken  of  his  condition,  situation,  or  necessities.     If  the 
pai'ty  upon  whom  the  burden  rested  should  succeed  in  thus  sho^v- 
ing  the  perfect  good  faith  of  the  transaction,  it  would  be  sustained ; 
if  he   should   fail,   equity  would    grant   such   relief,    affirmative    or 
defensive,  as  might  be  appropriate.- 

§  929.  II.  Illegal  Contracts  and  Transactions. — 
§  930.  1.  Contracts  Illegal  because  Contrary  to  Statute. — I 
place  under  this  head  those  few  instances  in  which  the  illegality 
is  wholly  or  chiefly  the  result  of  statutory  prohibition.  Very  many 
of  the  contracts  illegal  at  the  common  law,  because  opposed  to 
public  policy  or  to  good  morals,  have  also  been  brought  within  the 
domain  of  positive  legislation  in  the  various  states;  and  a  very  few 
which  are  illegal  by  the  English  common  law  are  not  generally 

'  Harrison  v.  Guest,  6  De  Gex,  M.  &  G.  424 ;  Pennybacker  v.  Laidley,  33 
W.  Va.  624,  11  S.  E.  39,  3  Keener  30. 

»Tate  V.  Williamson,  L.  R.  2  Ch.  65,  1  Eq.  rrZS.  II.  &  B.  337,  Sh.  103; 
Summers  v.  Griffiths,  35  Beav.  27,  3  Keener  .500;  Fish  v.  Leser,  60  111.  304, 
H.  &    r..  050;  Craffam  v.  Burgess,  117  U.  S.  184,  0  Sup.  Ct.  686,  3  Keener  512. 


§  !»31  EQUITY     jrUI;;PUUDENX^i:.  '  486 

iiuide  so  by  the  law  of  this  country.  The  impoVtant  species  which 
fall  under  the  present  head  are  usurious,  gaming,  and  smuggling 
contracts.  The  policy  of  prohibiting  usury  has  been  abandoned, 
and  the  statutes  concerning  it  repealed,  in  England  and  in  several 
o*""  the  American  states.  In  some  of  the  states  which  still  adhere 
to  the  policy,  the  usurious  contract  itself,  the  instrument  by  which 
it  is  evidenced,  and  all  its  securities,  are  declared  to  be  utterly 
v(.id;  in  others,  the  stipulation  for  the  usurious  excess  over  the 
legal  interest  is  alone  made  void:  while  in  others  a  further  penalty 
is  added  to  this  usurious  excess.^  Although  at  the  common  law 
cei'tain  kinds  of  contracts  based  upon  wagers  w^ere  not  unlawful, 
while  those  made  upon  a  gaming  consideration  were  illegal,  the 
modern  legislation  of  England  and  of  the  United  States  declares 
all  gaming  and  wagering  agreements,  and  the  instruments  by  which 
t!icY  are  cviJonced  or  secured,  to  be  illegal,  null,  and  void.-  .  .  . 
§  931.  2.  Transactions  Illegal  because  Opposed  to  Public  Pol- 
icy. — A.  Contracts  Interfering  with  the  Freedom,  of  Marriage.— 
The  law  of  England  and  our  own  law  regard  the  marriage  relation 
as  the  very  foundation  of  society.  Since  the  true  conception  of 
marriage  assumes  and  requires  a  perfectly  free  consent  and  union 
of  the  two  spouses,  equity  has,  from  its  earliest  periods,  treated 
all  agreements,  executory  or  executed,  between  the  immediate  par- 
ties or  between  third  persons,  w^hich  might  directly  or  indirectly 
iMterfere  in  any  degree  with  this  absolute  freedom,  either  by  pro- 
moting or  restraining  marriage,  as  opposed  to  public  policy  and 
illegal,  and  has  therefore  declared  them  null  and  void.  Although 
a  court  of  equity  will  apply  this  principle  in  whatever  kind  of 
a'^reement  the  illegality'  may  appear,  yet  there  are  certain  wel!- 

M^arker  v.  \^ansommer,  1  Brown  Ch.  149;  Fanning  v.  Dunham,  5  Jolins. 
Ch.    122,   142,    143,  0  Am.  Dec.  283,   1   Scott  271.     See  post,   §037. 

M\ilkinson  v.  Toiisley,  16  Minn.  299,  10  Am.  Rep.  139;  Kuhl  v.  Gaily 
Universal  Press  Co.,  123  Ala.  452,  2G  South.  ,535,  82  Am.  St.  Rep.  135.  citinj^^ 
many  cases  (contract  of  sale  of  a  gambling  device  or  machine)  ;  and  the 
interesting  caSe  of  Barclay  v.  Pearson  (1893),  2  Ch.  154,  holding  tliat  a 
"missing  word  competition"  was  a  lotteiy,  and  that  the  court  would  not  admin- 
ister or  distribute  the  fund  contributed  by  the  competitors.  The  ordinary 
so-called  time  contiacts  purporting  to  be  for  the  purchase  of  stocks,  but  in 
reality  wholly  speculative,  and  without  any  intention  to  sell  or  buy  specific 
stocks,  but  only  to  gain  or  lose  the  difi'erence  resvilting  from  the  rise  or  fall 
of  the  market  price,  are  clearly  within  tlie  definition  "gaming  contracts." 
and  therefore  void:  Embrey  v.  Jemison.  131  U.  S.  330,  9  Sup.  Ct.  770.  If 
thov  are  made  in  good  faith,  with  the  intent  of  actually  selling  and  buying 
certain  specific  stocks  to  be  obtained  l)v  the  vendor  in  the  future,  they  have 
no  element  of  invalidity:  Irwin  v.  Williar,  110  U.  S.  510,  4  Sup.  Ct.  160. 
I'.iisiness  of  training  horses  for  racing  purposes,  legal,  but  bettir.^f  on  races 
ilU'oal:  Central  Trust  &  S.  D.  Co.,  112  Ky.  606,  66  S.  \V.  421,  99  Am.  St. 
Rep.   317. 


487  coNSTurc'iivK  fuaud.  §  933 

defined  forms  of  these  eontracts  which  have  received  judioial  eon- 
denmation.  The  following'  are  the  most  important:  ^larriage  brok- 
ei'age  contracts,  by  which  one  party  agrees,  for  a  consideration,  t(-< 
jiegotiate  or  procure  a  marriage  for  the  other.  Courts  of  equity 
have  condemned  these  agreements  with  an  especial  emphasis.  They 
ai'e  absolutely  void,  without  the  slightest  regard  to  the  situation 
of  the  spouses  or  the  fitness  of  the  marriage  between  them  in  the 
particular  case.  They  are  so  utterly  null  that  they  cannot  be  rati- 
fied and  confirmed;  and  it  has  even  been  held  that  money  paid  in 
jmrsuauce  of  them  may  be  recovered  back/  Contracts  in  restraint 
of  marriage:  While  mutual  promises  by  a  man  and  a  woman  to 
marry  each  other  are,  of  course,  valid,  although  they  are  there])y 
prevented  from  marrying  others,  agreements  not  to  marry  at  all, 
or  not  to  marry  any  one  unless  it  be  the  promisee,  without  any  cor- 
responding stii)ulation  by  that  party,  as  well  as  more  general  forms 
of  contract  restraining  the  freedom  and  power  of  marriage,  are 
A'oid.-  .  .  .  Secret  contracts  in  fraud  of  marriage :  Secret  agree- 
ments of  any  kind  or  form,  concealed  from  one  or  both  of  the 
spouses,  the  object  of  which  is  to  promote  a  particular  marriage, 
or  to  induce  one  or  both  the  parties  to  enter  into  a  marriage,  are 
plainly-  opposed  to  public  policy  and  void.^  .  .  .  Analogous 
to  marriage  brokerage  contracts,  and  depending  upon  the  same  rea- 
sons, are  agreements  to  pay  a  compensation  to  a  person  for  using 
Lis  influence  with  a  testator  to  procure  a  will,  devise,  or  bequest 
to  be  made  in  favor  of  the  promising  party.^ 

§  932.  Agreements  for  a  Separation. — Whatever  may  have  been 
the  opinion  at  an  earlier  day,  it  is  now  thoroughly  settled  that 
agreements  for  a  separation  between  husband  and  wife,  if  valid  in 
form,  made  upon  a  sufficient  consideration,  and  executed  by  parties 
legally  capable  of  contracting,  are  not  illegal;  they  will  even  be 
specifically  enforced  in  equity,  by  decreeing  the  execution  of  the 
proper  deed,  and  by  restraining  either  party  from  personally  inter- 
fering with  the  other  in  violation  of  their  covenants.^ 


*HaIl  V.  Potter,  Show.  Pari.  C.  7G,  3  Lev,  411,  2  Scott  G63;  Duval  v.  Wellman, 
124  N.  Y.  1.58,  20  N.  E.  343;  Morrison  v.  Rogers,  115  Cal.  2.32,  4(i  Pae.  1072. 
5(5  Am.  St.  Rep.  95, 

-England  v.  Downs,  2  Beav.  522  White  v.  Equitable  Nuptial  Benefit  liiidii, 
7-  Ala.  251,  52  Am.  Rep.  325. 

=■  Palmer  v,  Neave,  11  Ves.  105:  Gale  v.  Lindo,  1  Vevn.  475,  2  Scott  732. 

'  Debenham  v.  Ox,  1  Ves.  Sr.  270,  2  Scott  GOO.  While  such  contracts  arc 
clearly  void,  agreements  between  the  heirs  or  near  relatives  of  a  testator,  in 
jiiit  icipation  of  a  will,  stipulating  to  share  equally  the  ]iro])('riy  which  may  be 
bequoathcd  to  thoni,  are  valid,  and  arc  rallicr  favored  by  courts  of  equity: 
VVetlicred  v.   ^Vetherc(l.  2  Sim.    IS.S. 

»Huut  V.  Hunt,  4  De  Gex,  F.  &  J.  221,  2.3.1,  1  Ames  Kq.  Jur.   131;   Clark  V. 


§  933  EC^UITY    JUIUSPRUDEXCE.  488 

§  933.     B.     Conditions  and  Limitations  in  Restraint  of  Marriage. 

— Intimately  connected  with  contracts  in  restraint  of  marriage,  and 
depending  npon  the  same  principle,  are  conditions  and  limitations 
operating-  in  like  manner  annexed  to  or  forming  part  of  testamen- 
tary dispositions,  or  of  family  settlements,  or  similar  gifts.  Al- 
though the  subject,  in  some  of  its  special  applications  and  phases, 
is  still  more  confused  and  uncertain  than  perhaps  any  other  branch, 
of  equity  jurisprudence,  yet  certain  general  rules  have  been  estab- 
lished beyond  all  further  controversy.  Tavo  propositions  lie  at  the 
foundation,  and  are  recognized  by  all  the  authorities :  1.  It  is  ordi- 
narily said  that  all  conditions  annexed  to  gifts  which  prohibit  mar- 
riage generally  and  absolutely  are  void  and  inoperative.  This,  how- 
ever, is  a  very  inaccurate  mode  of  statement,  since  a  condition 
precedent  annexed  to  a  devise  of  land,  even  if  in  complete  restraint, 
will,  if  broken,  be  operative  and  prevent  the  devise  from  taking 
effect.  With  this  limitation  all  conditions  in  general  restraint  are 
void.  Also,  if  a  condition  is  not  in  absolute  restraint,  but  is  of 
such  form  that  it  will  prohahly  operate  as  a  general  prohibition,  it 
is,  under  the  same  limitation,  void.^  2.  On  the  other  hand,  condi- 
tions annexed  to  testamentary  or  other  gifts,  in  partial  and  reason- 
able restraint  of  marriage,  are  valid  and  operative;  such,  for  ex- 
ample, as  that  a  devisee  or  legatee  should  not  marry  under  age,  or 
should  not  marry  without  the  consent  of  parents,  guardians,  or 
trustees,  or  should  not  marry  a  particular  person,  or  a  person 
belonging  to  a  particular  religious  communion.'-  In  the  application 
of  these  two  propositions,  certain  si)ecial  rules  have  been  settled 
with  more  or  less  certainty,  depending  upon  the  facts  of  the  con- 
dition being  precedent  or  subsequent,  of  there  being,  or  not,  a 
gift  over  upon  its  breach,  and  of  the  original  gift  to  which  the  con- 
dition is  annexed  being  one  of  real  or  of  personal  estate.  The  sys- 
tem which  has  been  developed  is  a  partial  compromise  between  the 
technical  common-law  rules  concerning  conditions,  and  the  (ioc- 
trines  of  the  Roman  law,  \vhich  made  void  all  attempts  to  restrict 
the  perfect  freedom  of  marriage;  and,  like  most  compromises,  it* 
has  some  incongruous  features.  If  a  condition  is  precedent  and 
annexed  to  a  gift  of  land,  it  operates  as  at  the  common  law;  when 

Fosdick,  lis  N.  Y.  14,  22  X.  E.  1111,  16  Am,  St.  Rep.  73.3,  0  L.  R.  A.  132. 
An  agreement  by  a  wife  to  relinquish  all  right  of  siipiiort  in  case  a  divorce 
is  granted  is  illegal:  Birch  v.  Anthony,  100  Ga.  349,  34  S.  E.  .jGI,  77  Am. 
St.  Rep.  379. 

'Scott  V.  Tyler,  2  Bro^\^l  Ch.  431,  2  Dick.  712,  2  Lead.  C'as.  Eq.  4th  Am.  ed. 
429,  475. 

^  Scott  V.  Tyler,  supra;  Stackpole  v.  Beaumont,  3  Yes.  89;  .Jenner  v.  Turner, 
16  Ch.  Div.  188  (condition  against  marrying  a  domestic  servant);  Gra;^don 
V.  Graydon,  23  N.  .7.   Kq.  229. 


489  COXSTKUCTIVK    FliAUD.  §  933 

broken,  it  prevent>  the  estate  from  vestin<i-,  wliatever  be  its  nature;' 
when  annexed  to  a  gift  of  personal  property,  if  general  or  unrea- 
sonable, it  is  Avholly  void,  and  the  gift  take^  effect;  if  partial  and 
reasonable,  it  is  operative.*  When  a  condition  is  subsequent  and 
annexed  to  a  gift  of  land,  if  general,  it  is  void,  and  although  brok- 
en, the  estate  of  the  donee  continues;  if  partial  and  reasonable,  it 
is  operative,  and  on  its  breach  the  estate  of  the  donee  is  defeated." 
AVhen  a  subsequent  condition  is  annexed  to  a  gift  of  personal 
property,  if  general,  it  is  void:*'  if  partial  and  reasonable,  and 
there  is  a  gift  over,  it  is  operative,  and  upon  its  breach  the  interest 
of  the  first  donee  ceases,  and  the  gift  over  takes  effect;'  but  if 
there  is  no  gift  over,  then  the  condition  is  said  to  be  in  terrorcm 
merely,  and  is  inoperative.^  It  seems  to  be  settled  by  an  over- 
whelming weight  of  authority  that  limitations  and  conditions,  pre- 
cedent or  subsequent,  tending  to  restrain  the  second  marriage  of 
women  are  valid, ^  and  by  the  most  recent  decisions  the  same  rule 
has  been  applied  to  the  second  marriages  of  men.^''     .     .     . 

'Pliillips  V.  Fergnson,  85  Va.  509,  8  S.  E.  241,  17  Am.  St.  Rep.  78,  1  L.  R. 
A.    837. 

*  Youno;  V.  Furse,  8  De  Gox,  M.  &  G.  7.56;   Phillips  v.  Ferguson,  supra. 

^  Comniomvealth  v.  Stauffer,  10  Pa.  St.  350,  51  Am.  Dec.  489. 

^Bellairs  v.  Bellairs,  L.  R.  18  Eq.  510. 

"Clarke  v.  Parker,  19  Ves.  1,  13;  Hotz's  Estate,  38  Pa.  St.  422,  80  Am. 
Dec.  49. 

'Parsons  v.  Winslow,  6  !Mass.  169,  4  Am.  Dec.  107.  See  In  re  Dickson's 
Trvists,   1   Sim.,  X.  S.,  37,  43.  44. 

'■•Phillips  V.  Jledbury,  7  Conn.  508;  Knight  v.  ^ilahoney,  152  3Iass.  523,  25 
,\.  E.  971,  9  L.  R.  A.  573;  Eeekman  v.  Hudson,  20  Wend.  53. 

^'^  Allen  V.  Jackson,  L.  R.  1  Ch.  Div.  399.  LUnUaiions  us  distinguisJied  from 
condilions. — It  appears  to  be  the  tendency  of  the  English  cases  to  draw  a 
material  distinction  between  conditions  in  restraint  of  marriage  annexed  to 
testamentary  dispositions,  and  restraints  on  marriage  contained  in  the  very 
terms  of  the  limitation  of  the  estate  given,  and  to  hold  such  limitations  valid 
although  the  restraint  if  imposed  in  the  form  of  a  condition  might  be  void. 
See  this  question  fully  discussed  in  the  English  editor's  note  to  Scott  v.  Tyler, 
2  Lead.  Cas.  Eq.  483-485;  Little  v.  Birdwell,  21  Tex.  597,  73  Am.  Dec.  242;  Mann 
V.  .lackson,  84  Me.  400,  30  Am.  St.  Rep.  358.  24  Atl.  886,  16  L.  R.  A.  707. 
Ill  my  opinion,  this  theory,  as  maintained  by  the  English  courts,  is  directly 
opposed  to  the  spirit  of  equity  jurisprudence.  X'ndoubtedly  the  common-law 
rules  are'  well  settled  which  establish  a  distinction  between  a  limitation  and 
a  condition  subsequent.  If  land  is  devised  to  a  widow  "for  and  during  her 
widowliood,  and  if  she  marries,"  then  over;  and  in  another  case  land  is  devised 
to  a  widow  "for  and  during  her  natural  life,  but  if  she  marries,"  then  over; 
at  the  common  law  the  nature  and  oj)eration  of  these  two  dispositions  aro 
quite  difl'eront.  These  niles  belong  to  the  law  of  conveyancing,  of  future  and 
expectant  estates,  of  contingent  remainders  and  conditional  limitations;  they 
are  in  the  higliest  degree  arbitrary  and  technical.  To  adopt  them  and  apply 
them  in  equity,  for  the  jJurjKiso  of  determining  the  validity  of  restraints 
imposed  upon  marriage,  and  especially  in  bequests  of  personal  property,  seems 


§  93-1  EQUITY    JURISPRUDEXCE.  490 

§  934.  C.  Contracts  Directly  Belonging  to  and  Affecting  Busi- 
ness Relations. — It  has  been  the  policy  of  the  law  to  promote  the 
fi-eedoni  of  engaging'  in  and  carrying  on  all  kinds  of  business  which 
are  beneficial  to  the  public,  and  to  maintain  fairness  and  honesty 
towards  the  public  in  all  business  transactions.  The  monopolies  which, 
were  so  frequent  in  the  early  periodr.  of  English  history  resulted 
in  most  instances  from  the  exercise  of  the  royal  prerogative  or 
from  legislation.  The  common  law  and  equity  would  prevent,  as 
far  as  possible,  all  contrivances  and  means  by  which  the  public 
would  be  deprived  of  the  skill,  industry,  or  economic  and  product 
ive  labor  of  individual  citizens,  or  by  which  the  public  would  bo 
deceived  in  business  dealings.  The  following  are  the  important 
applications  of  the  principle:  Contracts  in  restraint  of  trader 
Contracts  in  general  restraint  of  trade,  whatever  be  their  form  or 
the  nature  and  immediate  object  of  their  stipulations,  are  void  at 
laAV  as  well  as  in  equity.  The  term  "general"  is  not  synonymous 
with  "universal."  The  criterion  is  the  unreasonahlcness  of  the 
restraint;  and  this  is  alwa3^s  a  matter  of  law  to  be  determined  by 
the  court.  This  unreasonableness  may  be,  and  often  is,  in 
respect  to  the  amount  of  territory  over  which  the  restriction 
extends,  or  it  may  be  in  respect  alone  to  the  number  of  per- 
sons with  whom  the  trading  is  debarred,  or  in  respect  to  the 
duration  of  the  restraint.  Where  the  agreement  is  thus  void,  a 
court  of  equity  may  always  exercise  its  jurisdiction  defensively, 
bj-  defeating  a  suit  brought  for  the  enforcement  of  the  contract; 
or  affirmatively,  by  granting  the  remedy  of  cancellation  or  of  in- 
junction when  the  defensive  remedy  at  law  would  not  be  certain, 
complete,  and  adequate.^     On  the  other  hand,  contracts  in  partial 

to  violate  the  sjiirit  of  (-(juity  jurispnulenoe  in  dealinu;  with  kindred  questions. 
It  is  the  settled  and  familiar  policy  of  courts  of  equity,  except  when  they  are 
prevented  by  some  compulsory  legal  dogma,  to  disregard  the  me7-e  form  in  which 
the  intention  of  parties  is  expressed,  to  ascertain  that  intention  as  correctly  as 
possible,  and  then  to  carry  out  the  actual  intention  unrestricted  by  technical 
niles  which  relate  solely  to  external  form.  If  it  is  considered  that  the  common- 
law  doctrines  concerning  limitations  and  conditions  in  dispositions  of  real 
estate  are  too  firmh'  established  to  be  disregarded,  there  is  certainly  no 
necessity  for  extending  those  rules  to  dispositions  of  personal  propei'ty.  Such 
a  course  of  decision  is  not  only  unnecessary — it  is  improper;  for  it  tends  to  sub- 
vert some  of  the  fiuidamental  principles  of  equity. 

^  Since  the  illegality  does  not  depend  upon  tlie  form  of  the  agreement,  it 
is  impossible  to  describe  the  kinds  of  contracts  which  might  operate  in  a  gen- 
eral restraint  of  trade  within  the  principle.  The  simplest  and  ordinary  species 
is  a  contract  between  A  and  B.  whereby  B  agrees  not  to  carry  on  a  trade 
within  a  specified  territory.  The  principle  extends  to  combinations  among 
workmen  for  the  purpose  of  forcing  a  higher  rate  of  wages  from  employers, 
by  preventing  others  from  working  or  being  employed,  etc.;  analogous  combina- 
tions  and   agreements    among    employers    for    the    purpose    of   forcing   a    lower 


491  CONSTRUCTIVE    ITJAUD.  §  934 

restraint  of  trade  are  valid.  To  this  eud,  they  must  be  partial 
with  respect  to  the  territory  included;  reasonable  with  respect  to 
the  amount  of  territory,  the  circumstances  and  rights  of  the  party 
burdened  and  the  one  benefited  by  the  restriction,  and  the  number 
and  interests  of  the  public  whose  freedom  of  trading  is  circum- 
scribed; and  made  upon  a  valuable  and  sufficient  consideration. 
The  jurisdiction  of  equity  h  generally  exercised,  in  respect  to  these 
contracts,  for  the  purpose  of  indirectly  compelling  their  specific 
performance,  by  means  of  an  injunction  preventing  their  viola- 
tion.-    Interfering  with  bidding   at   auctions :     AA^here   property   is 

rate  of  wages,  by  stipulating  not  to  carry  on  their  business,  etc. ;  combinations 
and  agreements  by  partiec  engaged  in  the  same  business  to  enhance  prices 
by  compelling  the  public  to  deal  with  themselves,  and  preventing  it  from 
trading  with  others  who  ara  engaged  in  the  same  employment;  combinations 
by  two  or  more  ])arties  in  the  same  business  to  prevent  other  persons  from 
carrying  on  the  business,  and  thus  to  create  a  monopoly  for  themselves; 
similar  combinations  and  agreements  between  several  parties,  foi-  the  purpose 
of  preventing  some  of  them  from  engaging  in  the  business,  so  that  the  other 
might  secure  a  monopoly;  combinations  by  several  parties  to  enhance  the  price 
of  an  article  by  temporarily  withdrawing  it  from  the  market  and  preventing 
any  dealing  with  it  by  the  public  in  open  market,  often  called  "making  a 
corner";  combinations  and  agreements  between  persons  engaged  in  the  same 
business  for  the  express  purpose  of  destroying  competition,  and  thus  defeating 
the  natural  results  of  economic  laws  when  left  to  their  free  operation.  This 
last  species  of  agreement,  so  common  at  the  present  day,  and  which  is  doing 
much  to  overthrow  the  entire  system  of  economic  science,  in  my  opinion,  falls 
directly  within  the  operation  of  the  general  principle ;  more  than  any  other 
kind,  perhaps,  it  tends  to  defeat  the  freedom  of  trade  which  the  principle  pro- 
tects. The  following  cases  are  illustrations:  Mitchel  v.  Reynolds,  1  P.  Wms. 
181;  1  Smith's  Lead.  Cas.  705;  Brewer  v.  Marshall,  19  X.  J.  Eq.  537;  97  Am. 
Dec.  103,  2  Keener  557:  Pacific  Postal  Tel.  Cable  Co.  v.  Western  Union  Tel.  Co., 
50  Fed.  493;  Chicago  Gas  Light  Co.  v.  Gas  Light  Co.,  121  IlL  530,  13  N.  E. 
169,  2  Am.  St.  Rep.  124;  Chapiu  v  Brown,  83  Iowa  156,  48  N.  W.  1074,  32 
Am.  St.  Rep.  297,   12  L.  R.  A.  428. 

-  Such  contracts  are  frequently  made  in  connection  with  a  sale  of  a  business 
and  good-will,  the  vendor  stipulating  that  he  will  not  carry  on  the  same  busi- 
ness within  a  specified  distance  from  the  old  place,  or  for  a  specified  time,  or 
will  not  solicit  the  old  customers  for  their  trade,  and  the  like.  These  kinds 
of  stipulations,  if  reasonable  as  to  territory  and  time,  will  be  enforced  against 
the  vendor,  often  by  an  injunction.  See  Catt  v.  Tourle,  L.  E.  4  Ch.  654,  2 
Scott  493;  Nordenfelt  v.  Maxim-Xordenfelt  Co.,  [1894]  App.  Cas.  535;  Dia- 
mond :\ratch  Co.  V.  Roeber.  106  N.  Y.  473,  13  N.  E.  419,  f)0  Am.  Rep.  464; 
Williston's  Cas.  Contracts;  Robinson  v.  Suburban  Brick  Co.,  (C.  C.  A.)  127 
Fed.  804;  McClurg's  Appeal,  58  Pa.  St.  51,  H.  &  B.  751;  Rakestraw  v.  Lanier, 
104  Ga.  188,  30  S.  E.  735,  69  Am.  St.  Rep.  154,  H.  &  B.  310.  See,  also,  §  1344. 
Analogous  to  the  sale  of  a  good-will  is  the  sale  of  a  trade-secret,  or  secret 
recipe  or  ]n-ocess  of  manufacture,  with  an  agreement  by  the  vendor  not  to  use 
the  secret  in  his  business,  or  not  to  make  or  vend  articles  by  its  means,  and 
the  like.  Sucli  a  contract  will  be  enforced  by  enjoining  its  violation.  Bryson 
V.  Whitehead,  1  Sim.  &  St.  74,  2  Scott  124;  Peabody  v.  Norfolk,  OS  Mass.  452, 
96  Am.  Dec.   664,  2  Keener  241.     See,  also,   §    1340. 


§  934  EQUITY  JLiasrijrDE^'CE.  492 

1()  he  sold  at  public  auction,  and  especially  where  the  siile  is  by 
order  of  a  court,  or  is  made  in  the  course  of  governmental  adminis- 
tration, a  secret  combination  and  agreement  among  persons  inter- 
ested in  bidding,  whereby  they  stipulate  to  refrain  from  bidding 
it.  order  to  prevent  competition  and  to  lower  the  selling  price  of 
the  property,  is  illegal,  according  to  the  uniform  course  of  deci- 
sion in  this  country.  The  stipulations  of  the  buyer  to  pay  compen- 
sation to  the  others  in  consideration  of  their  promise  not  to  bid,,  or 
to  share  the  property  witli  them,  are  void,  and  the  sale  itself,  made 
as  the  result  of  the  combination,  is  also  tainted  with  the  frauds, 
and  Avill  be  set  aside  at  the  suit  of  the  vendor.^  Where,  in  pnrsu- 
ance  of  its  general  policy  of  letting  contracts  for  public  works  or 
for  supplies  to  the  lowest  bidder,  the  governmental  officers  issue 
proposals  for  bids,  a  secret  combination  and  agreement  among  con- 
tractors, to  refrain  from  bidding  and  to  prevent  competition,  falls 
under  the  same  rule,  and  is  equally  illegal.*  Employment  of  i)uff- 
ers:"'  The  secret  employment,  by  the  vendor,  of  one  or  more  per- 
s()ns — called  "puft'ers" — to  make  fictitious  and  collusive  bids  at  an 
auction,  and  thus  to  enhance  the  price  by  an  apparent  competition, 
is  clearly  a  wrong  against  the  bona  fide  bidders  and  against  the  one 
who  finally  becomes  the  purchaser.  Whether  it  is  absolutely  illegal 
has  given  rise  to  a  conflict  of  decision  between  the  courts  of  law 
and  of  equity;  and,  strangely  enough,  the  courts  of  Jaw  have  been 
more  ecpiitable,  more  strict  in  maintaining  good  faith,  than  those 
of  equity.  A  vendor  can  always  protect  himself  against  sacrifice 
l)y  announcing,  as  one  of  the  conditions  of  the  sale,  that  he  reserves 

■"The  English  courts  are  said  to  have  taken  a  dift'erent  view,  and  to  have 
licld  such  a  transaction  valid:  In  re  Carew's  Estate,  26  Beav.  187.  The  rule 
estaidished  by  the  American  courts  is  certainly  a  reasonable  and  just  one.  A 
secret  combination  as  described  is  intrinsically  much  worse  than  the  employ- 
ment of  "puffers"  by  the  A-endor:  Hamilton  v.  Hamilton,  2  Rich.  Eq.  355.  46 
Am.  Doe.  58;  Camp  v.  Bruce,  90  Va.  521,  70  Am.  St.  Rep.  873,  31  S.  E.  001, 
4.'!  L.  R.  A.  140.  In  connection  with  this  rule,  there  ai'e  decisions  which  hold 
that  a  mere  agreement  of  persons  interested  in  the  bidding,  for  the  purpose 
of  having  them  all  share  in  the  property  when  bid  off  by  one  of  their  number, 
and  not  for  the  purpose  of  ])reventing  competition,  is  not  open  to  the  objection 
of  illegalitj',  but  is  valid.  Tliis  is  probably  all  that  the  English  courts  meant 
to  decide  in  the  cases  cited  supra:  National  Bank  of  the  Metropolis  v.  Spraguo. 
■20  X.  J.  Eq.  159.  It  is  held  that  a  statement  made  at  the  sale  by  a  party  in 
interest  that  tends  to  jirevent  others  from  bidding  may  vitiate  the  sale,  al- 
tliough  such  statement  is  true:  Herndon  v.  Gibson,  38  S.  C.  357.  37  Am.  St. 
Rep.  765,  17  S.  E.  145,  20  L.  R.  A.  545  (statement  by  purchaser  that  she  is 
a   widow,  dependent  on  the  premises  for  support ) . 

'Weld  V.  Lancaster,  56  Me.  453;  Ateheson  v.  IVIallon,  43  N.  Y.  147,  3  Am. 
Rep.  678;   Swan  v.  Chorpenning,  20  Cal.   182. 

'For  a  full  discussion,  see  McMillan  v.  Harris.  110  Ca.  72,  35  S.  E.  334, 
78  Am.  St.  Rep.  93,  48  L.  R.  A.  345. 


493  C0XI6TKUCT1VE    i'UAUD.  *  §  !>3-i 

tht  right  to  start  the  bidding  by  naming  an  "upset"  price  as  the 
minimum,  or  the  right  to  bid  generally,  or  the  right  to  withdraw 
the  property.    In  regard  to  puffing,  two  cases  may  arise:    1.  Where 
tlie  sale  is  made  without  any  preliminary  announcement  at  all;     2. 
Where  it  is  announced  to  be  without  reserve.    In  the  first  case,  the 
rule  is  settled  at  law  that  any  puffing — the  employment  of  even  one 
puffer — is  illegal,  and  renders  the  sale  voidable,  at  the  option  of 
the  purchaser.*^     Courts  of  equity,  in  this  case,  allowed  one  puffer; 
in  other  words,  puffing  to  the  extent  of  one  fictitious  bidder  did  not 
render  the  sale  voidable.^     If  the  vendor  transgressed  this   limit, 
and  employed  more  than  one  putt'er,  the  transaction  became  illegal 
at  equity  as  well  as  at  law;  the  fictitious  competition  was  a  fraud 
upon  the  bona  fide  bidders,  which  rendered  the  sale  voidable.®    In 
the  second  place,  where  an  announcement  is  made  that  "the  sale 
will  be  without  reserve,"  or  Avords  to  that  effect,  this  is  a  pledge 
by  the  vendor  that  the  competition  shall  be  absolutely  free ;  the 
employment  of  any  puffing — one  or  more  puffers — reiiders  the  sale 
voidable  in  equity  as  well  as  at  law,  and  of  course  defeats  a  speci- 
fic performance.^     The  subject  is  now  regulated  in  England  by  a 
recent  statute.^"     Fraudulent  trade-marks:     Another  illustration  of 
frauds  upon  the  public  in  business  dealings  consists  in  the  use  of 
fraudulent  trade-marks.     The   whole   doctrine   of  infringement   of 
trade-marks  is  based  upon   the  notion  of  misleading  the  public; 
but  this  phase  o*f  the  subject  I  do  not  at  present  touch  upon.^^ 
The  fraud  now  referred  to  is  that  of  the  original  proprietor  of  the 
trade-mark,  whose  alleged  right  is  invaded  by  an  infringer,  and  who 
seeks  the  protection  of  courts.     If  a  trade-mark  contains  a  false- 
hood on  its  face,  deceiving  the  public,  and  giving  the  goods  a  char- 
acter   and   reputation   which   they  do   not   possess   nor   deserve,   or   if 
the  business  of  the  proprietor  is  itself  illegal,  or  is  knowingly  car- 
ried on  by  him  in  a  false  and  deceptive  manner,  the  trade-mark 
is  in  fact  a  fraud  upon  the  public ;  no  protection  will  be  given  to 

•^^Towle  V,  Leavitt,  23  N.  H.  360,  55  Am.  Dee.  195;  Staines  v.  Shore,  16  Pa. 
St.   200,   55   Am.   Dee.   492, 

'  Although  this  rule  was  settled,  it  has  been  applied  very  reluctantly'  in  re- 
cent decisions,  and  the  tendency  is  evident,  both  in  England  and  in  the  United 
States,  to  bring  the  equity  rule  into  an  agreement  witli  the  legal  one.  even 
in  the  absence  of  any  statute:  Bramley  v.  Alt,  3  Ves.  620;  Flint  v.  Woodin, 
9   Hare,   OlS. 

'It  is  probable  tliat  most  American  courts  of  equity  would  noio  disregard 
this  distinction  between  one  pufl'er  and  more  than  one:  See  Peck  v.  List,  23 
^^■.  Va.  338,  48  Am.  Rep.  398. 

■'Robinson   v.   Wall,   2    Phill.   Ch.    372,    375;    Flannery   v.   Jones,    180   Pa.    St. 
338,   36   Atl.    856,   57    Am.   St.   Rep.   648. 
^   ■"'30  &  31  Vict,,  e.  48. 

"See   §    1354. 


§  1)35  EQUITY    Jl'lIISl'ULDENCi:.  491 

the  proprietor  against  an  infringement.  It  is  added,  however,  that 
a  false  representation  by  the  proprietor,  as  to  a  matter  wholly  col- 
lateral to  his  trade-mark,  does  not  affect  his  right  to  a  remedy  either 
in  equity  or  at  law.^-  Contracts  opposed  to  the  policy  of  some  stat- 
ute prescribing  modes  of  certain  business  dealings.^^  Contracts  of 
trading  with  alien  enemies.^* 

§  935.  D.  Contracts  Affecting'  Public  Relations. — Contracts 
made  for  the  purpose  of  unduly  controlling  or  affecting  official 
conduct,  or  the  exercise  of  legislative,  administrative,  and  judicial 
functions,  are  plainly  opposed  to  public  policy.  They  strike  at  the 
very  foundations  of  government,  and  tend  to  destroy  that  confi- 
dence in  the  integrity  and  discretion  of  public  official  action  which 
is  essential  to  the  preservation  of  civilized  society.  The  principle 
is  universal,  and  is  applied  without  any  reference  to  the  mere  out- 
ward form  and  alleged  purpose  of  the  transaction.  If  a  contract 
<ioes  unduly  interfere  with  governmental  functions,  or  with  the  re- 
lations of  the  citizen  towards  his  own  government  in  any  of  its  de- 
partments, whether  the  interference  be  direct  or  indirect,  such 
agreement  is  illegal,  whatever  form  it  may  have  assumed.  It 
is  impossible,  therefore,  to  mention  all  the  instances  which  properly 
come  within  this  principle.  The  following  are  some  of  the  most 
important  species:  Contracts  for  the  procurement  of  office:  All 
agreements  which  interfere  with  the  integrity,  discretion,  or  free- 
dom of  the  electing  or  appointing  power  are  iflegaL^  Contracts 
interfering    with    legislative    proceedings:     .     .     .     The     doctrine 

^=\Yorden  v.  California  Fig  Syrup  Co.,  187  U.  S.  516,  23  Sup.  Ct.  101; 
Lemke  v.  Dii'tz.  (Wis.)  !)S  N.  \\ .  936;  McVey  v.  Brendel,  144  Pa.  St. 
235,  22  Atl.  912,  27  Am.   St.   Eep.  625,   13  L.   R.  A.   377. 

"  Coutiacts  opposed  to  tlie  ])olicy  of  the  U.  S.  public  land  laws;  Dial  v. 
Hair,  18  Ala.  798,  54  Am.  Dee.  179;  Beck  v.  Flournoy,  etc.,  Co.,  65  Fed.  30, 
12  C.  C.  A.  497,  27  U.  S.  App.   618. 

"Desmare  v.   U.   S.,   93   U.   S.   605. 

'This  group  contains  many  varieties:  contracts  directly  with  the  appoint- 
ing power,  for  the  purpose  of  obtaining-  the  office  by  means  of  any  reward, 
compensation,  or  consideration;  contracts  by  which  the  applicant  agrees  to 
pay  compensation  to  another,  or  to  share  the  emoluments  with  him.  in  con- 
sideration of  his  procuring  the  office;  contracts  between  opposing  candidates, 
ny  which,  in  consideration  that  one  withdraws,  or  aids  the  other,  the  latter 
stipulates  to  pay  a  compensation,  or  to  share  the  emoluments.  The  form  is 
immaterial  wherever  the  purpose  is  to  procure  an  office  by  private  interference 
with  the  freedom  and  integrity  of  the  appointing  body.  The  principle  applies 
to  private  offices  in  corporations,  etc..  as  well  as  to  public  governmental  offices: 
Meguire  v.  Corwine,  101  U.  S.  108;  Gaston  v.  Drake,  14  Nev.  175,  33  Am. 
Rep.  548;  Basket  v.  Moss,  115  X.  C.  448.  20  S.  E.  733,  44  Am.  St.  Rep.  463. 
48  L.  R.  A.  842.  See,  also.  West  v.  Camden,  135  U.  S.  .507,  10  Sup.  Ct.  838. 
(contract  by  director  of  a  corporation  to  keep  another  person  permanently  in 
place  as  an  officer  of  the  corporation,   is  illegal). 


495  CONSTRrcTivE  i-nAFD.  §  'Jy5 

finds  Its  most  important  application  in  dealing  with  contracts  for 
the  purpose  of  procuring  legislation.  All  agreements,  in  every  pos 
sible  form,  tor  tlie  purpose  of  securing  or  using  private  and  personal 
influence  with  members  of  a  legislature,  or  of  securing  or  using 
labor  and  services  with  legislators  privately,  personally,  and  individ- 
ually, for  the  object  of  obtaining  legislation  either  public  or  private, 
are  in  the  highest  degree  contrary  to  the  fundamental  theory  of 
free  legislative  action.-  Contracts  interfering  with  executive  pro- 
ceedings: These  are  subject  to  the  same  general  rules  which  apply 
to  similar  agreements  concerning  legislation.  All  agreements, 
whether  made  with  officials  or  with  third  persons,  which  directly 
or  indirectly  control  or  interfere  with  the  due  exercise  of  executive 
and  administrative  functions  as  prescribed  or  regulated  by  law, 
fre  clearly  illegal."  Contracts  interfering  with  judicial  proceed- 
ings: All  agreements  directly  or  indirectly  preventing  or  controll- 
ing the  due  administration  of  justice  are  opposed  to  the  universal 
and  most  elementary  principles  of  public  policy.  Whatever  be  their 
form  and  immediate  purpose,  and  however  innocent  may  be  the 
motives  of  the  parties,  they  are  plainly  invalid.* 

=  Our  law  permits  a  private  citizen  to  endeavor  to  influence  a  legislature, 
and  to  obtain  the  enactment  of  a  statute,  in  an  open,  public  manner,  by  ar- 
guments directed  to  the  whole  body  or  to  a  committee,  in  the  same  manner 
as  arguments  are  presented  to  a  court  by  counsel.  To  this  end,  agreements 
for  the  employment  of  an  agent  or  attorney,  upon  a  compensation,  to  argue 
before  the  legislature  or  its  committees,  or  to  collect  facts,  reasons,  etc.,  and 
present  them  openly  to  all  the  legislature  or  to  its  proper  committees,  are 
valid.  Agreements  which  go  beyond  this  line,  and  stipulate  for  private 
services  to  be  rendered  by  dealing  with  individual  legislators  privately  and 
personally,  have  been  uniformly  condemned  by  courts  of  the  highest  authority. 
The  varieties  of  such  agreements  are  very  numerous.  The  following  case.s 
furnish  illustrations:  Marshall  v.  B.  &  O.  R.  K.,  IG  How.  314,  (a  leading  case: 
tiie  opinion  of  Grier,  J.,  is  an  able  discussion  of  the  doctrine);  McBratnev 
V.  Chandler,  22  Kan.  602,  31  Am.  Rep.  213,  (where  the  services  are  partly 
Uiose  of  an  attorney  and  partly  of  a  lobbyist,  but  blended  as  a  single  employ- 
ment, the  entire  contract  is  void)  ;  Houlton  v.  Nichol,  93  Wis.  393,  G7  N.  \V. 
71.5,  57  Am.  St.  Rep.  !)28,  33  L.  R.  A.   166. 

'This  group  includes  contracts  with  officers  themselves  stipulating  for  the 
omission  or  violation  of  their  official  duties,  or  stipulating  for  compensation 
other  or  greater  than  the  fees  provided  by  law  for  the  performance  of  their 
duties:  contracts  with  third  persons  stipulating  for  their  influence  in  pro- 
curing administrative  acts  to  be  done  or  omitted,  and  the  like:  Spence  v. 
Harvey.  22  Cal.  337,  S3  Am.  Dec.  69  (agreement  by  postmaster  as  to  loca- 
tion of  office);  Oscanyan  v.  Arms  Co.,  103  U.  S.  261;  Woodstock  Iron  Co. 
v.  Extension  Co,,  129  U.  S.  643.  9  Sup.  Ct.  402. 

'' ITnder  this  head  are  included  agreements  with  judicial  officers  relating  to 
and  controlling  their  judicial  action;  witli  tliird  persons  stipulating  for  their 
personal  influence  in  procuring  judicial  action;  contracts  to  remove  wit- 
nesses, or  in  any  manner  to  prevent  them  from  testifying;   or  to   remove,  con- 


§  936  EQUITY    JURISPRUDEXCE.  49G 

§  936.  3.  Contracts  Opposed  to  Good  Morals. — It  is  nnneces- 
sary  to  discuss  the  meauiiig  of  the  phrase  contra  bonos  mores,  since 
the  doctrine  is  familiar.  It  is  enough  to  say  that  all  agreements 
in  which  the  consideration  past  or  future,  or  the  executory  terms 
stipulating  for  acts  to  be  done  or  omitted,  are  contrary  to  good 
miOrals,  are  illegal  and  void  in  equity,  and  with  a  very  few  excep- 
tions at  the  common  law.  This  doctrine  applies  in  equity,  what- 
ever be  the  external  form  of  the  contract,  or  its  immediate  purpose, 
or  the  particular  nature  of  its  illegality.  Among  the  most  important 
and  familiar  illustrations  are  the  following:  Contracts  based  upon 
the  consideration,  either  past  or  future,  of  illicit  sexual  intercourse, 
or  stipulating  for  such  future  intercourse,  or  in  any  manner  pro- 
moting or  furnishing  opportunities  for  unlawful  cohabitation  or 
prostitution  ;^  contracts  which  constitute  or  amount  to  champerty 
or  maintenance,  these  being  highly  criminal  at  the  common  law  ;- 
contracts,  executed  or  executory,  given  upon  the  considei-ation  of 

ceal,  suppress,  or  in  any  way  prevent  the  production  of  documentary  or 
other  evidence  at  an  expected  trial;  agreements  to  procure  vvitnesses  to  tvslifi/ 
to  a  certain  state  of  facts;  agreements  to  indemnify  sheriffs  and  other  execu- 
tive officers  of  a  court  for  a  icillful  violation  or  neglect  of  their  official  duty; 
and  a  great  variety  of  otliers:  Lindsay  v.  Smith,  78  N.  C.  328,  24  Am.  Hep. 
463;  Bowman  v.  Phillips,  41  Kan.  364,  21  Pae.  230,  13  Am.  St.  Rep.  202. 
3  L,  R.  A.  631;  Camp  v.  Bruce,  96  Va.  521,  31  S.  E.  901,  70  Am.  St.  Rep. 
873.   43   L.   R.   A.    146. 

^  All  contracts  providing  for  future  illicit  intercourse,  and  all  unsealed 
contracts  upon  the  cDiisidevation  of  past  intercourse,  were  voul  at  law  as 
M'eil  as  in  equity.  On  account  of  the  arhitrary  effect  given  to  a  seal,  con- 
tracts based  upon  the  consideration  of  past  intercourse,  if  sealed,  were  not 
void  at  the  common  law;  and  this  fact  furnished  an  occasion  for  the  exercise 
of  the  equitable  jurisdiction  in  canceling  such  instruments,  since  there  was 
no  defense  at  law.  In  most  of  the  states  where  the  common-law  efTect  of 
the  seal  has  been  abrogated,  or  where  a  seal  is  not  conclusive  evidence  of  con- 
sideration, this  technical  distinction  can  no  longer  exist:  Batty  v.  Chester, 
5  Beav.  103,  3  Keener  849;  Smyth  v.  C4riffin,  13  Sim.  245.  3  Keener  851;  Hill 
V.  Spencer,  Amb.  641,  836.  2  Scott  774.  In  the  same  class  are  leases  of  prem- 
ises for  the  purpose  of  being  used  as  houses  of  prostitution,  or  for  other 
known  illegal  objects:  See  Chateau  v.  Singla,  114  Cal.  91,  45  Pac.  1015, 
55  Am.  St.  Rep.  63,  33  L.  R.  A.  750. 

•  The  common-law  rules  concerning  champerty  and  maintenance  have  been 
greatly  modified  in  the  United  States,  and  to  a  large  extent  abrogated.  ;Many 
agreements  concerning  litigations,  legal  controversies,  and  disputed  claim-, 
which  were  condemned  by  the  ancient  laAV,  are  not  only  sustained  by  tlie 
modern  law  of  this  country,  but  are  of  frequent  occurrence.  The  good  policy 
of  the  change  may  Avell  be  doubted.  Many  otiier  ancient  common-law  rules, 
which  modern  civilization  came  to  regard  as  merely  arbitrary*  and  oppressive, 
are  found  by  experience,  after  their  abolishment,  to  have  been  wise,  and  based 
upon  the  uiicliangcable  facts  of  human  nature:  James  v.  Kerr,  40  Ch.  D. 
449  (an  interesting  case);  Casserleigli  v.  Wood  (C.  C.  A.),  119  Fed.  30't  (spe- 
cific   perfoi'mance    refused,    although    court   of   law   might    not    regard    contract 


-197  coxsTKUCTivi:  i-kaud.  ^  937 

or  stipulating  for  the  compoiindinti'  a  felony,  the  forbearance  to 
prosecute  for  a  crime,  or  the  abandoniiieut  of  a  peuding  criminal 
prosecution.^ 

§  937.  III.  Equitable  Jurisdiction  in  Case  of  Illegal  Contracts 
— Usurious  Contracts. — Equitable  relief  is  granted  against  usurious 
contracts,  whether  executory  or  executed,  since,  from  considera- 
tions of  public  policy,  the  two  parties  are  not  regarded  as  standing 
in  pari  delicto.  While  the  contract  is  executory,  equity  will  not 
aid  the  creditor  in  enforcing  it.  If,  therefore,  suit  is  brought  upon 
such  an  agreement,  the  borrower  may  set  up  the  usury  as  a  de- 
fense, without  paying  or  offering  to  pay  the  amount  actually  bor- 
rowed, or  legal  interest  thereon,  and  a  recovery  will  be  entirely 
defeated.  Eciuity  will  never  assist  a  party  to  carry  into  effect  his 
own  intentional  violation  of  the  law.^  It  is  well  settled  that  courts 
of  equity  will  go  farther,  and  will  give  all  the  affirmative  relief 
which  is  just  to  the  borrower.  If  the  contract  is  executory,  the 
borrower  may  obtain  the  remedy  of  a  surrender  and  cancellation 
of  the  securities  which  he  has  given  for  the  usurious  loan.-  If  the 
contract  is  executed,  he  may  recover  back  the  usurious  amount 
paid  in  excess  of  the  sum  actually  borrowed,  and  legal  interest 
thereon.^  This  affirmative  interposition  of  the  court  is  subject, 
however,  to  the  principle  that  the  plaintiff  must  himself  do  equity. 
It  is  a  firmly  settled  rule,  in  the  absence  of  contrary  statutes,  that 
where  a  borrower,  who  has  not  already  paid  the  debt,  brings  a 
suit  for  affirmative  relief  against  a  usurious  contract,  he  can  obtain 
the  remedy  only  upon  the  condition  of  repaying,  or  oft'ering  to  re- 
pay, the  sum  which  is  justly  and  equitably  due  to  his  creditor, — 
the  amount  actually  loaned  and  legal  interest.  The  absence  of  such 
an  offer  is  ground  for  defeating  the  suit.*     Since  the  illegality  of 

as  cliampertous)  :    r.iwvn  v.  P.ione,  21   Orog.  260,  28  Pac.   11,  28  Am.  St.  Rep. 
752,    14  L.  R.   A.   745    (not  c-lianipertous). 

•'This  illegality  affects  not  only  the  main  agreement,  but  all  collateral  se- 
cnrities  given  upon  sueh  consideration,  such  as  notes,  bonds,  mortgages,  etc.: 
Lindsay  v.  Smith,  78  X.  C.  328,  24  Am.  Rep.  40.3  (an  agreement  upon  a 
single  consideration  to  do  certain  acts,  not  of  themselves  illegal,  and  to  stop 
a  criminal  prosecution,  is  wholly  void)  :  Gorringe  v.  Reed.  2.3  Utah  120.  03 
I'ac.  002,  no  Am.  St.  Rep.  G92-  Contract  not  illegal:  Barrett  v.  Weber, 
125   X.   Y.    IS,   25   X.   E.    1008. 

'Fanning  v.  Dunham,  5  -Johns.  Ch.   122,  9  Am.  Dee.  28.3,   1   Scott  271. 

-Peters   v.   ^Mortimer.   4   Edw.   Ch.  270. 

^Bosanquett  v.  Daslnvood.  C'a«.  t.  Talb.  .38,  41,  2  Scott  007.  Wherever  the 
nsurioiis  loan  is  concealed  under  the  appearance  of  a  ]iretended  sale,  equity 
will  look  at  the  real  transaction,  and  give  relief  by  setting  a<ide  the  sale: 
Barker  v.  Vansommer,  1   Brown  Ch.   140. 

^Fanning  v.  Dunham.  5  .Johns.  Ch.   122.   142-4,  9  Am.  Dec.  283,   1   Scott   271; 
Mfttthews  V.  Warmer,   0   Fed.   40 1.     See   §    391. 
32 


I  938  EQUITY    JURISPRUDENCE.  498 

usury  is  wholly  the  creature  of  legislation,  the  provisions  of  the 
statute  must  furnish  the  rule  determining  the  extent,  limits,  and 
occasion  of  relief.  It  results  from  a  just  interpretation  of  the  legis- 
lation that  the  right  to  complain  is  a  personal  one,  belonging  onl^' 
to  the  borrower  and  his  representatives;  no  other  party  is  entitled 
to  relief,  defensive  or  affirmative.  The  doctrine  is  therefore  gen- 
erally settled,  that  where  land  subject  to  a  usurious  mortgage  is 
conveyed  to  a  grantee  who  assumes  the  payment  thereof  as  a  part 
of  the  consideration  of  the  conveyance,  he  cannot  set  up  the  usury 
either  as  a  defense  to  a  foreclosure  or  as  a  ground  for  a  cancella- 
tion of  the  securit}^  The  same  is  true  of  any  transferee  of  properly 
who,  as  a  part  of  the  transaction,  assumes  payment  of  a  usurious 
debt.  For  the  same  reason  a  subsequent  mortgagee  or  encum.brancer 
cannot  defeat  a  prior  encumbrance  or  procure  it  to  be  set  aside 
upon  allegations  of  its  usurious  character.^ 

^  938.  Gaming"  Contracts. — In  gaming  contracts,  unlike  usuri- 
ous loans,  it  cannot  be  sai^d  that  one  party  takes  advantage  of  the 
necessities  of  the  othei-,  who  is  in  vinculis;  both  act  freely  and  are 
in  pari  delicto;  the  general  maxims  therefore  apply.  WhiK-  the 
contract  is  still  executory,  a  court  of  equity  wnll  not  aid  the  creditor 
to  enforce  it,  the  illegality  being  a  perfect  defense  in  equity  as  well 
as  at  law.  After  the  agreement  has  been  executed  by  the  loser's 
payment  of  the  money,  or  by  a  conveyance  of  land  or  other  prop- 
erty, equity  will  not  interfere  on  his  behalf  and  decree  a  recovery 
back  of  the  money  paid,  or  a  cancellation  of  the  conveyance  or 
assignment,  unless  perhaps  there  w^ere  circumstances  of  fraud,  op- 
pression, duress,  and  the  like,  in  procuring  the  payment  or  transfer, 
which  w^ould  of  themselves  be  a  sufficient  ground  for  equitable 
interposition  distinct  from  the  mere  illegality.^  Finally,  as  long  as 
the  contract  is  still  executory,  equity  has  jurisdiction  to  aid  the  los- 
ing party  by  ordering  the  written  agreement  and  other  securities 
to  be  surrendered  up  and  canceled,  and  ]\v  granting  the  ancillary 
remedy  of  injunction  to  restrain  their  negotiation,  transfer,  or  en- 
forcement; and  when  the  circumstances  are  such  that  the  defens- 
ive remedy,  at  law  would  not  be  equally  certain,  complete,  and 
adequate,  this  jurisdiction  ought  to  be  and  will  be  exercised.     This 

=  Lamoille  Co.  Nat.  Bank  v.  Bingham,  50  Vt.  105,  28  Am.  Rep.  490;  Seanlan 
V.  Glimmer,  71  IMinn.  351,  74  X.  W.  146,  70  Am.  St.  Rep.  326;  Brook.^  v. 
Todd,    79   Ga.   692,  4   S.   E.    150. 

'  See  Solingtr  v.  Karle,  82  X.  Y.  393,  397,  399.  But  by  .statutes  in  several 
states  the  loser  may  reeover:  Jamieson  v.  \^'allace,  l(i7  111.  3SS,  59  Am.  St. 
Rep.  302,  47  X.  E.  702.  As  to  recovery  of  advances  made  by  one  wlio  lias  no 
interest  in  the  gamhlino-  transaction,  see  Hawley  v.  ]?il)I),  62  Ala.  52:  Harvey 
V,  Merrill,   150  Mass.   1,  22  X.  E,  49,    15   Am.  St.  Rep.   159,  5  L.   R.  A.  200. 


491>  coN^i  lat  ii\i;  I'livri).  §  940 

conclusion  is  sustained  by  tlie  hiiilK'st  iuithority,  and  is  in  perfect 
accord  Avith  principle. - 

i^  939,  Other  Illegal  Contracts. — 1  purpose  to  explain  the  mean- 
in<i  and  effect  of  the  three  maxims  which  limit  the  exercise  of  the 
e(!uitable  jurisdiction,  and  to  ascertain  and  formulate,  if  possible, 
such  conclusions  as  shall  be  sustained  both  by  principle  and  by 
authority.  These  maxims  are.  Ex  turpi  causa  non  oritur  actio,  In 
pari  delicto  melior  est  conditio  possidentis,  or  In  pari  delicto  melior 
est  conditio  defendentis.  What  is  meant  by  the  "condition"  of 
the  possessor,  or  the  defendant,  which  is  so  much  "better" — or,  as 
the  maxim  sometimes  reads,  "stronger"  (potior) — that  it  will  not 
be  disturbed?  Plainly,  it  is  not  the  condition  merely  of  an  exeeu- 
toi-y  contract  having  been  made  and  subsisting  between  the  par- 
tics;  the  maxim  does  not  refer  to  the  condition  of  the  executory 
contract  whicli  has  been  entered  into  remaining  unaltered  and  un- 
molested ;  otherwise  the  setting  up  the  illegality  as  a  defense  would 
be  prohibited,  for  it  would  directly  violate  the  maxim.  The  de- 
fense is  always  allowed,  and  this  necessarily  disturbs  the  condition 
of  the  contract.  The  "condition"  referred  to  in  the  maxim  is  clear- 
ly the  condition  of  the  parties  with  respect  to  their  property  rights 
created  by  or  resulting  from  the  contract.  If  the  contract  is  still 
executory,  the  promisor  is  left  undisturbed  in  the  possession  of  the 
money  or  other  property  which  he  agreed  to  pay  or  transfer;^  if 
the  contract  has  been  executed,  the  promisee  is  left  undisturbed  in 
tl'.e  possession  of  the  money  or  other  property  which  has  been  paid 
or  conveyed  to  him.  This  is  the  true  meaning  of  the  maxim,  and  it 
involves  no  requirement  that  the  contract,  as  a  mere  p.rccitfonj  instrii- 
mrnt,  should  remain  unmolested;  it  deals  solely  with  the  rights 
ilowing.  or  which  would  flow,  from  the  agreement.  The  form,  there- 
fore, which  correctly  expresses  the  thought  is,  Melior  est  conditio 
piissidentis;  "defendentis"  is  appropriate  only  when  regarded  as 
equivalent  to  possidentis.  The  foregoing  analysis  is  not  a  mere 
verbal  discussion.  Upon  the  true  signification  given  to  "condi- 
tion," in  the  maxim,  depends  to  a  great  extent  the  doctrine  con- 
cerning affirmative  equitable  relief  against  illegal   contracts. 

^  940.     In    Pari    Delicto — General    Rules. — The     proposition    is 

*Lord  Poitarlington  v.  Soulhy.  M  IMylne  &  K.  104.  1  Keener  12;  Wynne  v. 
Callander,  1  Russ.  293,  296,  297;  Skipwith  v.  Strotlier,  .3  Rand.  (Va.)  214, 
very  able  difeentinjj  opinion  in  Kalin  v.  Walton,  40  Ohio  St.  195.  20  X.  E. 
20.3;  contra,  majority  oi)inion  in  case  last  cited,  H.  &  B.  32,  3  Keener  859. 
See.  also.  Knhl  v.  Hally,  etc.,  Co..  123  Ala.  4.52,  20  Sontli.  535,  82  Am.  St. 
Rep.  135  (cancellation  of  note  and  mortjiajre  jriven  in  consideration  of  sale 
of   pamblinw   machine). 

'Driiiknil  v.  JNIovins  State  liaidc.  11  X.  Dak.  10.  88  X.  W.  724.  95  Am.  St. 
Rep.    fiO;.   57    L.    R.    A.    341. 


§  940  EQUITY    JUKLSl'liUDEXCE.  500 

universal  that  no  action  arises,  in  equity  or  at  law,  from  an  illegal 
contract;  no  suit  can  be  maintained  for  its  specific  performance, 
or  to  recover  the  property  agreed  to  be  sold  or  delivered,  or  the 
money  agreed  to  be  paid,  or  damages  for  its  violation.  The  rule 
has  sometimes  been  laid  down  as  though  it  were  equally  universal, 
that  where  the  parties  are  in  pari  delicto,  no  affirmative  relief  of 
any  kind  will  be  given  to  one  against  the  other.  This  doctrine, 
though  true  in  the  main,  is  subject  to  limitations  and  exceptions 
which  it  is  the  special  object  of  the  present  inquiry  to  determine.^ 
As  applications  of  this  principle,  the  following  rules  may  be  re- 
garded as  settled,  where  the  parties  are  in  pari  delicto:  If  the  con- 
tract has  been  voluntarily  executed  and  performed,  a  court  of 
equity  will  not,  in  the  absence  of  controlling  motives  of  public 
polic}^  to  the  contrary,  grant  its  aid  by  decreeing  a  recovery  back 
of  the  money  paid  or  property  delivered,  or  a  cancellation  of  the 
conveyance  or  transfer.-  As  long  as  the  contract  is  executory,  it 
cannot  be  enforced  in  any  kind  of  action  brought  directly  upon  it ; 
the  illegality  constitutes  an  absolute  defense.'  As  an  application 
of  the  sariie  doctrine  merely  in  a  different  form,  while  the  agree- 
ment is  executory,  courts  of  equity  may  relieve  the  debtor  or 
promising  party  by  ordering  the  "written  instrument  and  other  se- 
curities to  be  surrendered  and  canceled,  and  bj^  granting  the  ancil- 
lary  remedies   of  injunction,   discovery,   and   the   like.     "Whenever 

'Bosanquett  v,  Dashwood,  Cas.  t.  Talb.  38,  2  Scott  667;  Batty  v.  Chester, 
5  Beav.  103,  3  Keener,  849;  Smith  v.  White,  L.  R.  1  Eq.  626;  Leonard  v. 
Poole,  114  N.  y.  371,  21  N.  E.  707,  11  Am.  St.  Rep.  607,  4  L.  R.  A.  72S,  2 
Scott   787. 

-Soliiiger  v.  Earle,  82  N.  Y.  393,  397,  399;  Treadwoll  v.  Torbert,  119  Ala. 
279,  24  South.  54,  72  Am.  St.  Rep.  918. 

"Ibid.  There  are  a  few  apparent  exceptions  or  limitations:  Casserleigh 
V.  Wood,  119  Fed.  309,  (C.  C.  A.);  Camp  v.  Bruce,  90  Va.  521,  31  S.  E.  901, 
70  Am.  St.  Rep.  873,  43  L.  R.  A.  146.  Wliere  the  contract  has  been  executed, 
the  party  in  possession  of  the  proceeds  or  protits  may  be  unable  to  set  up  the 
i]lci;ality  to  defeat  an  action  for  an  accounting,  or  to  recover  the  proceeds, 
brouoht  by  a  third  person  entitled  to  the  money:  Sykes  v.  Beadon,  L.  R.  11 
Ch.  Div.  170,  193,  197,  per  -Jcsscl,  'SI.  R. ;  Imt  may,  as  a  general  rule,  defeat 
such  action  by  a  partner  or  other  party  to  the  original  illegal  agreement: 
:M<AIullcn  V.  Hoffman,  174  U.  S.  039,  006,  19  Sup.  Ct.  839,  limiting  Brooks 
V.  .Martin,  2  Wall.  70,  2  Scott  7!!0.  It  sliould  be  observed  that  the  defensp 
of  illegality  is  allowed  from  motives  of  public  policy,  rather  tiian  from  a  re- 
gard for  the  interests  of  the  objecting  party.  When  a  person,  having  ac- 
tively participated  in  the  illegal  transaction,  and  having  obtained  all  the  bene- 
fit of  it  from  the  other  party,  refuses  to  perform  his  own  executory  undertaking, 
and  sets  up  the  illegality  as  a  defense,  his.  jDOsition,  considered  by  itself,  is. 
unjust,  but  the  law  sustains  it  out  of  regard  to  the  interests  of  society.  The 
objection  comes  in  appearance  from  the  individual  litigant,  but  in  reality  from 
society — tiie  state — speaking  through  tlie  courts. 


501  COXSTltUCTlVE    FRAUD.  §  941 

the-  oirenmstances  are  siu-li  that  the  defensive  remedy  at  law  would 
not  be  equally  certain,  i)erfeot,  and  adequate,  this  jurisdiction  will 
be  exercised.  The  e<iuitable  relief  so  conferred  does  not  violate 
the  general  maxim  concerning  parties  in  pari  delicto;  on  the  con- 
trary, it  carries  that  maxim  into  effect.  It  has  already  been  shown 
that  the  maxim,  rightly  interpreted,  does  not  require  the  condition 
of  the  parties,  ivith  respect  to  the  suhsistiiig  executori/  contract,  to 
rejuain  unchanged  and  undisturbed.  The  remedy  of  cancellation 
or  injunction,  under  the  circumstances,  is  simply  the  equitable 
proceeding  identical  with  the  setting  up  the  illegality  as  a  defense 
to  defeat  a  recovery  at  law,  and  thus  to  get  rid  of  the  contract  as  a 
1)iuding  executory  obligation.  The  parties  are  left  undisturbed  as 
to  their  property  rights.* 

§  941.  In  Pari  Delicto — Limitation  on  the  General  Rules. — To 
the  foregoing  rules  there  is  an  important  limitation.  Even  where 
the  contracting  parties  are  in  pari  delicto,  the  courts  may  inter- 
fere from  motives  of  public  policy.  Whenever  public  policy  is 
considered  as  advanced  by  allowing  either  party  to  sue  for  relief 
against  the  transaction,  then  relief  is  given  to  him.  In  pursuance 
of  this  principle,  and  in  compliance  with  the  denumds  of  a  high 
public  polic3%  equity  may  aid  a  party  equally  guilty  with  his  op- 
ponent, not  only  b}'  canceling  and  ordering  the  surrender  of  an 
executory  agreement,  but  even  by  setting  aside  an  executed  con- 
tract, conveyance,  or  transfer,  and  decreeing  the  recovery  back 
of  money  paid  or  property  delivered  in  performance  of  the  agree- 
ment. The  cases  in  which  this  limitation  may  apply  and  the  afhrra- 
ative  relief  may  thus  be  granted  include  the  class  of  contracts 
which  are  intrinsically  contrary  to  public  polic,y, — contracts  in  which 
the  illegality  itself  consists  in  their  opposition  to  public  policy, 
and  any  other  species  of  illegal  contracts  in  W'hich,  from  their 
particular  circumstances,  incidental  and  collateral  motives  of  public 
policy  recjuire  relief.^ 

*  Batty   V.   Chester,   5   Beav.    103,   3   Keener   849;    W v.   B ,    32    Beav. 

574;  McCutcheon  v.  Merz  Capsule  Co.,  71  Fed.  787,  19  C.  C.  A.  108,  31  L.  R. 
A.  415;  :Missouri,  K.  &  T.  Co.  v.  Krumseig,  77  Fed.  32,  40  U.  S.  A.  620; 
Basket  v.  Moss,  115  K  C.  448,  20  S.  E.  733,  44  Am.  St.  Rep.  4G3,  48  L.  R. 
A.  842;  Harvey  v.  Linville  Imp.  Co.,  118  N.  C.  693,  24  S.  E.  489.  54  Am.  St. 
Rep.  749,  32  L.  R.  A.  205;  Booker  v.  Wingo,  29  8.  C.  116.  7  S.  E.  49.  See  ante, 
§  938. 

'Basket  v.  Moss,  115  N.  C.  448.  20  S.  E.  733,  44  Am.  St.  Rep.  403.  48  L. 
R.  A.  842;  Duval  v.  AVellman.  124  N.  Y.  158,  26  N.  E.  343  (marriajje  brokerage 
contract)  ;  and  see  Wetmore  v.  Porter,  92  N.  Y.  76,  Ames  Trusts  202  (trustee 
may  sue  to  recover  trust  property,  although  he  colluded  with  defendant  in  the 
breach  of  trust).  It  is  not  asserted  that  in  all  contracts  which  are  illegal 
because  opposed  to  public  policy  relief  will  Ihus  be  given  to  a  party  in  pari 
delicto;    but   simply   that    in    this    class    of    contracts    the    limitation    finds    its 


§  d-i:2  EQUITY     JUKlSl'UrUKNCE.  BOZ 

§  942,  Not  in  Pari  Delicto. — Lastly,  when  the  contract  is  illegal^ 
so  that  both  parties  are  to  some  extent  involved  in  illegality, — 
in  some  degree  affected  with  the  unlawful  taint, — but  are  not  in 
pari  delicto, — that  is,  both  have  not,  with  the  same  knowledge, 
willingness,  and  wrongful  intent,  engaged  in  the  transaetiou,  or 
the  undertakings  of  each  are  not  equally  blameworthy, — a  court 
of  equity  may,  in  furtherance  of  justice  and  of  a  sound  public  poli- 
cy, aid  the  one  who  is  comparatively  the  more  innocent,  and  may 
grant  him  full  affirmative  relief,  by  canceling  an  executory  con- 
tract, by  setting  aside  an  executed  contract,  conveyance,  or  transfer, 
by  recovering  back  money  paid  or  property  delivered,  as  the  cir- 
ciiiiistai'ces  of  the  case  shall  require,  and  sometimes  even  by  sus- 
taining a  suit  brought  to  enforce  the  contract  itself,  or  if  this  be 
impossible,  by  permitting  him  to  recover  the  amount  justly  due, 
by  means  of  an  appropriate  action  not  directly  based  upon  the  con- 
tract. Such  an  inequality  of  condition  exists  so  that  relief  ma\'^ 
be  given  to  the  more  innocent  party,  in  two  distinct  classes  of 
cases:  1.  It  exists  where  the  contract  is  intrinsically  illegal,  and  is 
of  such  a  nature  that  the  undertakings  or  stipulations  of  each, 
/■/  considered  hy  ilieniselves  alone,  would  show  the  parties  equally  in 
lault.  but  there  are  collateral  and  incidental  circumstances  attending- 
the  transaction,  and  affecting  the  relations  of  the  two  parties,  which 
render  one  of  them  comparatively  free  from  fault.  Such  circum- 
stances are  imposition,  oppression,  duress,  threats,  undue  influence,, 
taking  advantage  of  necessities  or  of  weakness,  and  the  like,  as  a 
means  of  inducing  the  party  to  enter  into  the  agreement,  or  of 
procuring  him  to  execute  and  perform  it  after  it  had  been  volun- 
tarily entered  into.^  2.  The  condition  also  exists  where,  in  the 
absence  of  any  incidental  and  collateral  circumstances,  the  contract 
is  illegal,  but  is  infn'Nsiaillj/  unequal;  is  of  such  a  nature  that  one 
l)arty  is  necessarily  innocent  as  compared  with  the  other;  the 
stipulations,  undertakings,  and  position  of  one  are  essentially  less 
illegal  and  blameworthy  than  those  of  the  others. - 

.special  field  of  operation.  The  equitable  remedies  of  borrowers  in  usurious 
contracts  are  a  familiar  illustration.  Marriage-brokerage  contracts  are  asiotlicr. 
the  cases  holding  that  money  paid  in  pursuance  of  their  stipulations  may  be 
recovered  back. 

■Wright  V.  tStewart,  130  Fed.  905,  921;  Harrington  v.  Grant.  54  Vt.  230; 
Foley  V.  Greene,  14  R.  I.  618,  51  Am.  Rep.  419;  Gorringe  v.  Reed,  23  Utah  120, 
03   Tac.  902,  90  Am.   St.  Rep.   092. 

-Cases  of  this  class  must  largely  depend  upon  their  omhi  pai-ticular  cir- 
cumstances: Lowell  V.  Boston,  etc..  R.  R.,  23  Pick.  24.  32.  34  Am.  Dec.  33; 
Tracy  v.  Talmage,  14  N.  Y.  102,  107.  07  Am.  Dec.  132,  per  Selden,  J.;  210,  per 
Comstock,  J. — in  whose  opinions  the  subject  is  discussed  most  ably  and  ex- 
haustively;  Kuhl   V.   Gaily   Universal   Press   Co.,   123   Ala.   452,   20   South.   535, 


503  CONSTRUCTIVE    FKAUD.  §  943 

§  943.  Second.  Constructive  Fraud  Inferred  from  the  Condition 
and  Relations  of  the  Immediate  Parties  to  the  Transaction. — Tlii^ 
division  embraces  those  cases  in  which  a  transaction,  although  it 
may  be  perfectly  regular  in  its  external  form,  and  valid  perhaps 
by  the  original  rules  of  the  common  law,  is  impeachable  in  equity 
because  it  lacks  that  absolute  consent  which  is  regarded  as  essen- 
tial by  courts  of  equity.  The  equitable  conception  of  true  consent 
assumes  a  physical  power  of  the  party,  an  intellectual  and  moral 
power,  and  that  he  exercised  these  powers  freely  and  deliberately. 
While  the  execution  of  an  instnmient  in  the  regular  legal  man- 
ner will  undoubtedly,  in  the  absence  of  all  contrary  evidence,  raise 
a  prima  facie  presimiption  that  the  consent  was  present,  the  real 
consent  may  be  prevented  or  destroyed  by  surrounding  physical 
circumstances,  by  the  want  of  intellectual  or  moral  capacity  in 
the  party  himself,  or  by  physical,  intellectual,  or  moral  force  eon- 
trolling  the  free  operations  of  his  own  will.  This  phase  of  so-called 
constructive  fraud  necessarily  involves  a  great  variety  of  instances, 
and  several  degrees  of  invalidity.  It  includes  transactions  abso- 
lutely void  from  complete  incapacity,  others  which  are  voidable, 

82  Am.  at.  Rep.  135.  The  illegal  contract  may  also  be  sometimes  enforced 
indirectly,  at  the  suit  of  the  more  innocent  party,  by  an  action  not  brought 
upon  the  very  contract  itself.  It  is  'a  well-settled  doctrine  with  respect  to 
implied  contracts  that  where  an  express  contract  does  not  involve  a  malum 
in  se,  but  is  made  illegal  solely  bj'  some  statute,  and  the  parties  are  not,  from 
the  nature  of  their  respective  stipulations  or  their  relations,  in  pari  delicto, 
the  more  innocent  one  may  maintain  an  action  upon  implied  contract,  t>i 
recover  back  the  consideration,  or  the  money  advanced,  or  the  value  of  the 
property,  etc.  In  such  a  case,  the  less  guilty  party  is  entitled  to  relief, 
whether  the  agreement  has  been  executed  on  both  sides,  or  whether  it  Ik; 
executory  on  the  side  of  the  defendant.  What  contracts  are  thus  unequal  in 
their  illegality,  so  that  the  doctrine  of  implied  promise  may  be  invoked,  mu^-t 
depend,  in  great  measure,  upon  the  language  of  the  statute  creating  lh<i 
illegality.  It  may  be  said,  in  general,  that  if  the  act  prohibited  is  in  itself 
innocent  or  indifferent,  and  the  statute  imposes  a  penalty  or  loss  on  one  pai-ty 
only,  or  addresses  its  prohibitions  and  sanctions  in  consequence  of  a  violation 
to  one  party  only  of  the  conti-act,  then  the  illegality  of  the  two  parties  is 
unequal:  Bond  v.  Montgomery,  .56  Ark.  50.3.  20  S.  W.  52.'}.  35  Am.  St.  \U\). 
119.  Although  the  doctrine  of  implied  promises  and  actions  on  implied 
contracts  belongs  primarily  and  peculiarly  to  the  law,  yet  this  is  chiefly  so- 
as  it  affects  the  forms  of  action  and  rules  of  pleading.  Exactly  the  same 
circumstances  arise  in  equity,  and  the  granting  of  equitable  relief  will  then 
depend  upon  exactly  the  same  principles,  although  under  the  equitable  notions 
of  remedies  the  suit  may  not  be  regarded  or  represented  as  based  upon  an 
implied  promise:  Lowell  v  Boston,  etc.,  R.  R.,  23  Pick.  24,  34  Am.  Dec.  33. 
The  doctrine  finds  one  of  its  most  important  applications  in  the  case  of  contracts 
of  corporations  which  are  made  illegal  by  their  chai-ters,  or  by  other  statutes, 
and  a  fortiori  in  the  case  of  their  contracts  which  are  merely  ultra  vires: 
Tracy  v.  Talmage,  14  N.  Y.  162,  167,  210,  67  Am.  Dec.  132.  See,  also.  Pull- 
man Palace  Car  Co.  v.  Central  Transportation  Co.,  65  Fed.  158,  3  Keener  870. 


§  945  EQUITY    JUlUSrKUDEXCE.  •  5U4 

and  others  which  are  only  presumptively  invalid,  and  which  throw 
the  burden  of  proof  upon  the  parties  claiming  their  benefit  to  over- 
come this  presumption/  The  whole  subject  is  therefore  separated 
into  two  branches.  1.  Transactions  void  or  voidable  with  j)ersons 
totally  or  partially  incapacitated;  2.  Transactions  presumptively  in- 
valid l)otween  persons  in  fiduciarj^  relations. 

§944.  1.  Transactions  Void  or  Voidable  with  Persons  Totally 
or  Partially  Incapacitated. — The  incapacities  embraced  under  this 
head  are  either  total  or  partial.  They  may  be  created  by  the  policy 
of  the  law,  such  as  coverture  and  infancy ;  they  may  be  intellectual, 
such  as  insanity,  mental  weakness,  intoxication:  they  may  result 
from  external  forces,  physical  or  moral,  such  as  duress,  undue  in- 
fluence, pecuniary  necessity;  or  they  may  inhere  in  the  very  posi- 
tion and  circumstances  of  the  parties,  such  as  sailors,  expectant 
heirs,  and  reversioners.  In  several  instances,  which  are  placed  un- 
der this  head  because  they  are  governed  by  the  same  doctrine 
and  rules,  it  must  be  admitted  that  the  term  "incapacity"  can  be 
used  only  by  way  of  analogy. 

§  945.  Coverture. — At  the  common  law,  married  Avomen  were 
without  the  capacity  to  bind  themselves  by  contract,  and  their 
agreements  were,  in  general,  void  in  equity  as  well  as  at  law. 
With  respect  to  their  equitable  separate  property,  however,  mar- 
ried women  are  regarded  by  equity,  independently  of  statutes, 
in  many  respects  as  though  they  were  single;  they  are  permitted 
to  deal  with  such  estate,  and  to  make  contracts  concerning  it;  and 
such  contracts  are  enforced  by  courts  of  equity  against  the  prop- 
erty, though  not  against  the  married  women  personally.^  Cover- 
ture, however,  is  no  excuse,  in  equity,  for  fraud;  in  other  words, 
the  fraud  of  a  married  woman  will  furnish  an  occasion  for  appro- 
priate equitable  relief,  and  the  fact  that  the  fraudulent  party 
is  a  married  woman  will  not  prevent  such  relief.-     Infancy:  The 

^Tribou  v.  Trihnu,  96  Me.  305,  52  Atl.  795;  Cowee  v.  Cornell,  75  N.  Y.  99, 
ni  Am.  Kep.  428,  H.  &  B.  316   (see  criticism  of  this  opinion  in  Pom.  Eq.  Jur.). 

^Hulme  V.  Tenant,  1  Bro^vn  Ch.  16,  1  Lead.  Cas.  Eq.,  4th  Am.  ed.,  679: 
INIurray  v.  Barlee,  3  iMylne  &  K.  209,  220;  Johnson  v.  Gallagher,  3  De  Gex, 
F.  &  .J.  494.  The  subject  of  married  women's  contracts  in  equity  is  treated 
in  a  subsequent  chapter.  The  modern  legislation  concerning  married  women's 
property  and  contracts  has  made  great  changes  in  tlie  rules  which  originally 
prevailed  at  law  and  in  equity.  An  abstract  of  this  legislation  will  be  given 
in  the  subsequent  chapter  mentioned  above. 

-The  relief  may  be  defensive,  by  defeating*  a  suit  brought  by  the  married 
woman;  or  it  may  be  affirmative,  as  setting  aside  a  fraudulent  conveyance  or 
agreement;  pecuniary  relief  would  not  be  given  against  her,  personally,  on 
account  of  her  fraud,  unless  permitted  by  the  modern  legislation:  Savage  v. 
Foster,  9  Mod.  35,  1  Scott  576;  Sharpe  v.  Foy,  L.  R.  4  Ch.  3.i.  The  American 
decisions  are  conflicting  on  thf  questioii,  how  tar  a  married  woman  is  estopped 
by  fraud  from  alleging   lior  coverture.,     See  s  814. 


505  CONSTRUCTIVE    1-KAll).  §  947 

incapacity  of  infants  to  enter  into  binding  contracts  is  the  same 
in  equity  as  in  law;  but  such  contracts  are  generally  voidable 
only,  and  may  therefore  be  ratified  after  the  infant  attains  his  ma- 
jority. Fraud,  however,  will  prevent  the  disability  of  infancy  from 
being  made  available  in  equity.  If  an  infant  procures  an  agree- 
ment to  be  made  through  false  and  fraudulent  representations 
that  he  is  of  age,  a  court  of  equity  will  enforce  his  liability  as  though 
he  were  adult,  and  may  cancel  a  conveyance  or  executed  contract 
obtained  by  fraud. '^ 

§  946.  Insanity. — In  general,  a  lunatic,  idiot,  or  person  com- 
pletely non  compos  mentis  is  incapable  of  giving  a  true  consent  in 
equity,  as  at  law ;  his  conveyance  or  contract  is  invalid,  and  will 
generally  be  set  aside.^  While  this  rule  is  generally  true,  the  rnrrc 
fact  that  a  party  to  an  agreement  was  a  lunatic  will  not  operate 
as  a  defense  to  its  enforcement,  or  as  ground  for  its  cancellation. 
A  contract  executed  or  executory  made  with  a  lunatic  in  good 
faith,  without  anj^  advantage  taken  of  his  position,  and  for  Jiis  oirn 
benefit,  is  valid  both  in  equity  and  at  law.-  And  where  a  con- 
veyance or  contract  is  made  in  ignorance  of  the  insamty,  with  no 
advantage  taken,  and  with  perfect  good  faith,  a  court  of  equity 
will  not  set  it  aside,  if  the  parties  cannot  be  restored  to  their  origi- 
nal position,  and  injustice  would  be  done.^  The  conveyance  or 
agreement  of  a  monomaniac  will  be  defeated  or  set  aside,  ii  it  is  the 
result  of  his  insane  delusion.*  The  nature  and  extent  of  mental 
capacity  and  incapacity  are  the  same  at  law  and  in  equity. 

§  947.  Mental  Weakness.— It  is  well  settled  that  there  may  be 
a  condition  of  extreme  mental  weakness  and  loss  of  memory,  either 
congenital,  or_  resulting  from  old  age,  sickness,  or  other  cause,  and 
not  being  either  idiocy  or  lunacy,  which  will,  without  any  other  inci- 
dents or  accompanying  circumstances,  of  itself  destroy  the  person's 
testamentary  capacity,  and  a  fortiori  be  ground  for  defeating  or 
setting  aside  his  agreements  and  conveyances.^  It  is  equally  certain 

"Ex  parte  Unity  Bank.  .3  De  Gex  &  J.  G3;  Rice  v.  Boyer,  108  Ind.  472.  .58 
Am.  Rep.  61,  9  N.  E.  420.     See  Savap;e  v.  Foster,  9  Mod.  35,  1  Scott  oTC 

'Mamiinp:  v.  Gill.  L.  R.  13  Eq.  485;  Helberg-  v.  Schumann.  150  111.  12.  .37 
N.  E.  99,  41  Am.  St.  Rep.  339.  As  to  setting  aside  his  conveyance  as  against 
a  bona  fide  pnroliaser,  see  Ashcraft  v.  De  Armond,  44  Iowa  229:  Odom  v. 
Riddick,  104  N.  0.  515,  10  S.  E.  009.  17  Am.  St  Rep.  080,  7  L.  R.  A.  118; 
Dewey  v.  Allgire.  37  Neb.  G,  55  N.  W.  270,  40  Am.  St.  Rep.  408. 

2  See  post,  §  1300. 

^'Neill  V.  Morley,  9  Ves.  478,  482;  Giibben  v.  Maxwell,  34  Kan.  8,  7  Pac. 
584,  55  Am.  Rep.  233;  Bank  v.  Snood.  97  Tenn.  120,  36  S.  W.  716,  50  Am. 
St.  Rep.  788,  34  L.  R.  A.  274. 

*  Jenkins  v.  Morris,  L.  R.  14  Cli.  Div.  074;  Riggs  v.  American  Tract  Society, 
95  N.  Y.  .503;  Lewis  v.  Arbnckle.  85  Iowa  335,  52  X.  W.  237,  10  L.  R.  A.  077. 

^It    is    undoubtedly    difiitult    to    formulate    any    rule    for    determining    the 


§048  EQUITY     JUUIsrilLDKXCi;. 


i06 


that  mere  weak-mindedness,  whether  natural  or  produced  by  old 
age,  sickness,  or  other  intirniity,  uuacconii)anied  by  any  other  in« 
equitable  incidents,  if  the  person  has  sufficient  intelligence  to  under- 
stand the  nature  of  the  transaction,  and  is  left  to  act  upon  his  own 
free  will,  is  not  a  sufficient  ground  to  defeat  the  enforcement  of  an 
executory  contract,  or  to  set  aside  an  executed  agreement  or  con- 
veyance.- If,  as  is  frequently  if  not  generally  the  case,  the  mental 
weakness  and  failure  of  memory  are  accompanied  by  other  ine(iui- 
table  incidents,  and  are  taken  undue  advantage  of  through  their 
means,  equity  not  only  may  but  will  interpose  with  defensive  or 
affirmative  relief.-"  Finally,  in  a  case  of  real  mental  weakness,  a  pre- 
sumption arises  against  the  validity  of  the  transaction,  and  the 
burden  of  proof  rests  upon  the  party  clanning  the  benefit  of  the 
conveyance  or  contract  to  show  its  perfect  fairness  and  the  capacity 
of  the  other  party.' 

§  948.     Persons  in  Vinculis.— Analogous  to  the  condition  of  mental 

iiiuount  of  tins  mental  weakness.  The  following  has  been  adopted  by  the 
hiiihest  autliopty,  and  is  clearly  just:  "Had  the  testator  a  disposing  mem- 
ory? Was  lie  able,  williout  prompting,  to  recollect  the  property  he  was  about 
to  bequeath,  the  manner  of  distributing  it,  and  the  objects  of  liis  bounty? 
To  svun  up  the  whole  in  the  most  simple  and  intelligible  form:  Were  his  mind 
anil  memory  sufliciently  sound  to  enable  him  to  know  and  to  understand  the 
business  in  which  he  was  engaged  at  the  time  when  he  executed  the  will?" 
If  any  of  these  questions  uuist  be  answered  in  the  negative,  if  such  an  amount 
of  mind  and  memoiy  does  not  exist,  then  there  is  no  testamentary  capacity. 
Nee,  also,  Campbell  v.  Campbell,  1:^0  111.  460,  22  N.  E.  620,  6  L.  R.  A.  167. 
The  same  rule  applies  to  conveyances  and  other  agreements  inter  vivos:  King 
V.  Davis,  00  Vt.  502,  11  Atl.  727. 

-  If  a  court  can  see  that  there  were  no  inequitable  incidents,  such  as  undue 
influence,  great  ignorance  and  want  of  advice,  very  inadeipiate  ])riee.  and  tlie  like, 
it  will  not  interfere  merely  because  one  party  possessed  very  much  less  intelli- 
gence than  the  other,  nor  because  the  transaction  is  not  one  which  the  court 
in  all  respects  approves:  Harrison  v.  Guest,  6  De  Gex,  i\I.  &  G.  424,  8  H.  L. 
(as.  481;  Cowee  v.  Cornell,  7.")  X.  Y.  71,  !)!».  100,  31  Am.  Hep.  428,  H.  &  B. 
r.lO:  Sawyer  v.  White,   (C.  C.  A.)   122  Fed.  223. 

'  W  here  mental  weakness,  not  of  itself  sufhcient  to  destroy  capacity,  is  ac- 
onnipanied  by  luidue  influence,  inadequacy  of  price,  taking  advantage  of  pecu- 
niary necessities,  ignorance  and  want  of  advice,  misrepresentation  or  conceal- 
ments, and  the  like,  a  contract  or  conveyance  ])rocured  by  their  combined  means 
will  be  defeated  or  set  aside;  it  is  not  a  simple  presumption  of  invalidity  which 
thus  arises,  but  the  presumption  has  become  established.  Of  course,  in  the  vast 
majority  of  instances,  the  mental  weakness  is  wrought  upon  tlirough  such  in- 
equitable instrumentalities,  in  order  to  obtain  a  contract  or  conveyance  for  an 
inadequate  consideration:  Harding  v.  Handy.  11  Wheat.  103  (Marshall.  C.  J.)  : 
Allore  V.  .leweli,  04  U.  S.  506,  H.  &-  B.  320,  Sh.  IflO  (Field,  J.)  ;  Dingman  v. 
Bomine,  141  Mo.  466.  42  S.  W.  1087;  Bennett  v.  Bennett.   (Neb.)   01  N.  W.  409. 

*  Cowee  V.  Cornell,  Tfj  N.  Y.  01,  09,  100,  31  Am.  Rep.  428,  H.  &  B.  316; 
Brummond  v.  Krause.  S  N.  Dak.  573.  80  X.  W.  686.  The  whole  subject  of  mental 
weakness  is  practically  involved  witli  undue  influence.     See  following  paragraphs. 


507  C0N8T1{LCT1\'E    FRAUD.  §  949 

Aveakness  is  that  of  pecuniary  or  other  necessity  and  distress.  AVhen- 
ever  one  person  is  in  the  power  ot  another,  so  that  a  free  exercise 
of  his  judgment  and  will  would  be  impossible,  or  even  difficult,  and 
Avhenever  a  person  is  in  pecuniary  necessity  and  distress,  so  that 
he  would  be  likely  to  make  any  undue  sacritice,  and  advantage  is 
taken  X)f  such  condition  to  obtain  from  him  a  conveyance  or  con- 
tract which  is  unfair,  made  upon  an  inade<iuate  consideration,  and 
the  like,  even  though  there  be  no  actual  duress  or  treats,  equity  may 
relieve  defensively  or  affirmatively.^  Persons  illiterate  or  ignuntnt: 
By  the  same  analogy,  where  a  person  is  illiterate  or  ignorant  of 
the  nature  and  extent  of  his  own  rights,  or  ignorant  of  the  nature 
of  the  transaction  in  which  he  is  engaging,  and  acts  without  pro- 
fessional or  other  advice,  and  advantage  is  taken  of  his  condition 
to  obtain  a  conveyance  or  contract  upon  an  inadequate  consideration, 
or  otherwise  unfair,  equity  will  relieve  by  setting  it  aside  or  defeat- 
ing its  enforcement.  The  relief  is  granted  on  the  ground  that 
there  was  not  an  intelligent  and  free  consent ;  if  the  circumstances 
show  sucli  consent,  equity  will  not  interfere.- 

§  949.     Intoxication. — Intoxication  which  merely  exhilarates,  and 

'  Ivelief  A\ill  be  granted  in  such  oases  with  great  caution.  If  it  appears  that, 
notwithstanding  his  necessitous  condition,  the  party  acted  i<no\vingly  and  in- 
telligently, with  a  full  comprehension  of  the  situation,  of  his  own  acts,  and  of 
tlieir  consequences,  and  no  undue  ])ressure  was  used,  equity  will  not  interpose, 
even  though  the  consideration  is  inadequate:  (See  ante,  paragraphs  on  inad- 
equacy of  consideration.  A  presumption  of  invalidity  arises  from  the  circum- 
stances, but  that  presumption  viay  be  overcome:  Williams  v.  Bayley,  L.  R. 
1  H.  L.  200,  218,  3  Keener  773;  Neilson  v.  McDonald,  G  Johns.  Ch.  201,  .3  Keener 
751;  James  v.  Kerr.  40  Ch.  Div.  441). 

-Fish  V.  Leser,  69  111.  394,  H.  &  B.  650;  Green  v.  Willde,  98  Iowa, 
74,  fiC  N.  ^\■.  1040.  (iO  Am.  St.  Rep.  184,  36  L.  R.  A.  434,  ami  notes; 
\Ninfield  Nat.  Bank  v.  Croco,  46  Kan.  620,  26  Pac.  939.  Relief  is  granted 
in  this  case  also  with  the  greatest  caution.  Courts  of  equity  have  not 
in  England,  and  much  less  in  this  country,  adopted  a  rule  that  a  conveyance  or 
contract  cannot  be  valid  unless  made  with  professional  advice:  Lightfoot  v. 
Heron,  3  Younge  &  C.  586.  In  applying  the  rules  contained  in  the  above  para- 
graph and  in  the  preceding  one,  it  should  be  remembered  that  in  all  of  them  the 
s]tecial  circumstances — mental  weakness,  necessities,  ignorance,  etc. — are  as- 
sumed to  show  the  absence  of  a  free  consent,  a  free  act  of  the  will.  The  mere 
fact,  therefore,  that  a  party  was  very  old,  or  illiterate,  or  sick,  or  in  pecuniary 
necessity,  will  not  invalidate  a  transaction,  or  be  a  ground  for  setting  aside  or 
defeating  a  contract,  even  though  made  upon  an  inadequate  consideration  and 
without  advice,  provided  the  evidence  shows  that  he  was  c<)mi)etent  to  form  an 
inde])endent  judgment,  that  he  really  knew  the  nature  and  efl'eet  of  the  trans- 
action in  which  he  was  engaged,  and  acted  in  it  intelligently  and  deliberat(>ly. 
To  impeach  such  a  transaction  recpiires  ])roof  of  actual  fraud  or  coercion, 
(^nui-fs  do  not  set  aside  conveyances  and  contracts  simply  because  the  judges  may 
regard  them  unfavorably:  Cowee  v.  Cornell,  75  N.  Y.  91,  99,  100;  31  Am. 
Rep.  42S,  H.  &  B.  316. 


§  950  EQUITY    JUKlSl'RUDEXuii.  508 

does  not  materially  affect  the  understanding  and  the  will,  does  not 
constitute  a  defense  to  the  enforcement  of  an  executory  agree- 
ment, and  much  less  is  it  any  ground  for  afRmiative  relief.^  An 
intoxication  which  is  absolute  and  complete,  so  that  the  party  is  for 
the  time  entirely  deprived  of  the  use  of  his  reason,  and  is  wholly 
unable  to  comprehend  the  nature  of  the  transaction  and  of  his  own 
acts,  is  a  sufficient  ground  fo)'  setting  aside  or  granting  other 
appropriate  affirmative  relief  against  a  conveyance  or  contract 
made  while  in  that  condition,  even  in  the  al)sence  of  any  fraud, 
procurement,  or  undue  advantage  by  the  other  party.-  Where  the 
intoxication  is  not  thus  absolute  and  complete,  but  is  still  sufficient 
to  materially  affect  and  interfere  with  the  person's  reason,  judg- 
ment, and  will,  but  is  not  procured  nor  taken  advantage  of  un- 
fairly by  the  other  party,  the  doctrine  is  settled  that  a  court 
of  equity  will  not  interfere  in  behalf  of  either  of  the  parties  to  a 
contract  which  is  made  while  one  of  them  is  in  such  a  condition.'' 
Finally,  although  the  intoxication  was  only  partial,  if  the  other 
party  produced  it  by  his  contrivance,  and  then  took  advantage  of 
it,  or  made  it  the  opportunity  for  acts  of  imposition,  unfairness, 
and  a  fortiori  fraud,  equity  will  grant  full  affirmative  thereof.* 

§950.  Duress. — Whenever  a  conveyance  or  contract  is  obtained 
by  actual  duress,  equity  will  grant  relief,  defensively  or  affirma- 
tively, by  cancellation,  injunction,  or  otherwise,  as  the  circumstances 
may  require.    In  determining  what  constitutes  duress, — what  force 

^  An  liahiduil  drunkard  is  not  noccssarily  an  incompetent  ])orson  :  Wri,!T:lit  v. 
Fisher,  (i.l  Midi.  -27.),  ?,2  X.  \V.  HO."),  S  Am.  St.  Rep.  SS(J;  Burnham  v.  Burnham 
(Wis.)  97  X.  \V.  17(). 

-Thacixrah  v.  Haas,  11!)  U.  S.  oOl,  7  Sup.  Ct.  311.  2  Scott  746,  .3  Keener  697; 
Hale  V.  Stery,  7  Colo.  App.  lO.i,  42  Pac.  598:  Moetzel  v.  Koch  (Iowa),  97  N, 
\V.  1079.  If  a  ]iorson  is  thus  completely  intoxicated,  a  party  openly  dealing 
with  him  must,  of  course,  perceive  liis  condition:  it  would  seem  that  the 
jiarty  knowingly  taking  the  conveyance  or  contract  under  these  circumstances 
was  necessarily  chargeable  with  inequitable  conduct. 

*  The  court  will  not  specifically  enforc(>  an  executory  contract  against  the 
intoxicated  party  at  the  suit  of  the  other,  nor  will  it  set  aside  a  conveyance  or 
contract  at  the  suit  of  the  intoxicated  party  or  his  representatives;  the  parties 
are  left  to  their  remedies  at  law.  This  rule  is  an  ap]ilication  of  the  maxim  in 
pari  delicto,  etc.:  Cooke  v.  Clayworth,  IS  Ves.  12:  Harbison  v.  Lemon,  3 
Blackf.  .51,  23  Am.  Dee.  376. 

*  Cooke  V.  Clayworth,  18  Ves.  12;  Crane  v.  Conkliu.  1  X.  J.  Eq.  346, 
22  Am.  Dec.  ;)19.  (/'ourts  of  equity  are  extr<'mely  cautious  in  granting  anif 
relief  on  the  ground  of  intoxication,  and  they  will  seldom  give  the  remedy  of 
cancellation,  unless  there  was  conduct  ])lainly  ineqiiitablc  by  the  otlier  party: 
to  do  so  would  require  a  V(>ry  strong  case  in  ^^■hicll  the  evidence  \\as  most  con- 
vincing. Experience  shows  that  a  man  may  l)e  very  nmch  intoxicated  and  still 
be  shrewd,  hard  in  driving  a  bargain,  and  in  every  way  comijetent  to  manage 
his    own    business. 


509  cONsTiiiJCTivi;   i'i;aud.  §  951 

or  threats, — equity  follows  the  law.  Courts  oi"  ecjuity  undoubtedly 
grant  relief  in  many  classes  of  instances  where  there  is  no  legal 
duress,  and  where  the  wronged  party  would  perhaps  be  remediless 
at  the  common  law,  but  these  cases  properly  belong  to  the  head  of 
** undue  influence."^ 

§951.  Undue  Influence. — Where  there  is  no  coercion  amounting 
to  duress,  but  a  transaction  is  the  result  of  a  moral,  social,  or  domes- 
tic force  exerted  upon  a  party,  controlling  the  free  action  of  his 
will  and  preventing  any  true  consent,  equity  may  relieve  against 
the  transaction,  on  the  ground  of  undue  influence,  even  though 
there  may  be  no  invalidity  at  law.  In  the  vast  majority  of  in- 
stances, undue  influence  naturally  has  a  field  to  work  upon  in  the 
condition  or  circumstances  of  the  person  influenced,  which  render 
him  peculiarly  susceptible  and  yielding, — his  dependent  or  fiihi- 
ciary  relation  towards  the  one  exerting  the  influence,  his  mental 
or  physical  weakness,  his  pecuniary  necessities,  his  ignorance,  lack 
of  advice,  and  the  like.  All  these  circumstances,  however,  arc 
incidental,  and  not  essential.  AYhere  an  antecedent  fiduciary  re- 
lation exists,  a  court  of  ecpvitv  will  presume  confidence  placed  and 
influence  exerted ;  wdiere  there  is  no  such  fiduciary  relation,  the 
confidence  and  influence  must  be  proved  liy  satisfactory  extrinsic 
evidence;  the  rules  of  equity  and  the  remedies  which  it  bestows 
are  exactly  the  same  in  each  of  these  two  cases.  The  doctrine  of 
equity  con'-erning  undue  influence  is  very  broad,  and  is  based  upon 
principles  of  the  highest  morality.  It  reaches  every  case,  and  grants 
relief  "where  influence  is  acquired  and  abused,  or  where  confi- 
dence is  reposed  and  betrayed."'     It  is  specially  active  and  search- 

^Xicliolls  V.  Nicholls.  1  Atk.  400.  1  Scott  481:  Williams  v.  Baylor.  L.  \\. 
1  H.  L.  200.  3  Keener  773:  Louden  v.  P.lytlie.  10  Pa.  St.  532,  55  Am.  Dec.  527 
(acknowledgment  of  deed  of  married  woman  obtained  by  duress).  Tlireats 
of  prosecution  agrainst  a  near  relative  of  tbe  party:  Sharon  v.  Gager,  46  Conn. 
ISO,  2  Scott  713:  Winfield  N^t.  Bank  v.  Croco.  46  Kan.  620.  26  Pac.  039; 
City  National  Bank  v.  Knsworni.  SS  V\"is.  118.  59  N.  W.  564.  43  Am.  St.  Rep. 
8S0.  26  L.  R.  A.  48.  3  Keener  705.  No  duress:  York  v.  Hinkle.  SO  Wis..  624, 
50  X.  W.  895,  27  Am.  St.  Rep.  73.  3  Keener  770:  Fulton  v.  Loftis.  03  X.  C. 
393.    1    Scott   486    (duress   after  a   contract   is  made). 

'  Smith  V.  Kay.  7  H.  L.  Cas.  750,  779,  per  Lord  Kingsdown.  Tn  Hall  v. 
Hall.  37  L.  .1.  P.  &  ]\I.  40.  L.  R.  1  P.  &  M.  481,  Mr.  Justice  Wilde  laid  down 
the  rules  in  a  most  admirable  manner  which  apply  to  the  execution  of  instru- 
ments inter  vivos  as  well  as  to  wills:  "To  make  a  sfood  will,  a  man  musl  lie 
a  free  agent,  but  all  influences  are  not  imlawful.  Pei-smision  appeals  lo  the 
affections  or  ties  of  kindred,  fo  n  sentiment  of  gratitude  for  past  services  or 
pity  for  future  destitutifm,  or  flie  like.  These  are  all  legilimate,  and  may 
be  fairly  ])ressed  on  a  feslalor.  On  the  other  hand,  ]iressure  of  whatever 
character,  whether  acting  on  Ihe  fears  or  lh(>  hopes,  if  so  exerted  as  to  o\er~ 
power  the  volition  witliout  (•(nivincing  Die  judgment,  is  a  s])ecies  of  restraint 
under   which   no   valid    will   can   he   made.      Importiniitv   or   tlireats   such    as    the 


§  953  EQUITY    JURISPRUDEXCE.  510 

iug  in  dealing  ■witli  gifts,  but  is  applied,  when  neces.sary,  to  con- 
veyances,   contracts    executory    and    executed,    and   Avills. 

§  953.  Expectants,  Heirs,  and  Reversioners. — Expectant  heirs, 
reversioners,  and  holders  of  other  expectant  interests  stand  m  a 
position  different  from  that  of  all  other  persons  sui  juris,  and  a 
special  jurisdiction  for  their  protection  has  long  been  well  estab- 
lished. This  jurisdiction  rests  upon  two  distinct  foundations.  In 
the  first  place,  heirs,  reversioners,  and  other  expectants,  during  the 
lifetime  of  their  ancestors  and  life  tenants,  are  considered  as  pe- 
culiarly liable  to  imposition,  and  exposed  to  the  temptation  and 
danger  of  sacrificing  their  future  interests,  in  order  to  meet  their 
present  wants.  Being  sometimes  in  actual,  but  more  often  in  im- 
aginary, distress,  they  do  not  stand  upon  an  equal  footing  with 
those  who  deal  with  them  concerning  their  expectant  estates,  and 
such  persons  are  in  a  position  to  take  advantage  of  their  condition, 
and  to  dictate  inequitable  and  even  extravagantly  hard  terms  in 
any  contract  of  loan  or  purchase  which  may  be  made.  In  the 
second  place,  the  dealings  of  heirs  and  reversioners  with  their  ex- 
pectant interests  are  often  a  gross  violation  of  the  moral  if  not 
legal  duties  which  they  owe  to  their  ancestors  and  life  tenants 
who  are  the  present  owners  of  the  i)roperty,  and  from  or  through 
whom  their  future  estates  \vill  come,  and  may  be  a  virtual  fraud  up- 
on the  rights  of  those  parties.  Equity,  therefore,  treats  such  deal- 
ings with  expectant  interests  as  a  possible  fraud  upon  the  heirs  and 
reversioners  who  are  immediate  parties  to  the  transaction,  and  as  a 
virtual  fraud  upon  their  ancestors,  life  tenants,  and  other  present 
owners.  Upon  these  two  considerations  the  equitable  jurisdiction 
is  founded.  The  rule  is  well  settled  that  all  conveyances,  sales, 
and  charges,  and  contracts  of  sale  or  charge,  of  their  future  and 
expectant  interests  made  by  heirs,  reversioners,  and  other  ex- 
pectants during  the  lifetime  of  their  ancestors  or  life  tenants, 
upon  an  uiadeqiiate  considemtlon,  will  be  relieved  against  in  equity, 
and  either  wholly  or  partially  set  aside.  In  this  instance,  fraud 
is  inferred  from   tmn-c   inadequacy   of  consideration.     All   dealings 

testator  has  not  the  courage  to  resist;  moral  conimaiul  asserted,  and  yielded  to 
for  the  sake  of  peace  and  quiet,  or  of  esr-apins  from  distress  of  mind  or 
social  discomfort — these,  if  carried  to  a  desree  in  ^vhich  the  free  play  of  the 
testator's  judgment,  discretion,  or  wishes  is  overborne,  will  constitute  undue 
influence,  though  no  force  is  either  used  or  threatened.  In  a  word,  a  testator 
may  be  led,  not  driven,  and  his  will  must  be  tlie  offspring  of  his  owTi  volition, 
and  not  that  of  another."  See,  also,  Dowie  v.  DriscoU.  203  111.  480,  68  N.  E. 
56;  Leighton  v.  Orr,  44  Iowa  679;  Ran  v.  Von  Zedlitz.  1.32  Mass.  164,  3 
Keener  784,  1  Scott  487;  Hollocher  v.  Hollocher.  62  Mo.  267  (what  kind  of 
influence  is  not  undue);  Haydock  v.  Haydock.  33  N.  .T.  Eq.  494,  3  Keener  807; 
Fisher  v.  Bishop,  108  N.  Y.  25,  2  Am.  St.  Rep.  357,  15  N.  E.  331 ;  Hartman 
y.  Strickler,  82  Va.  225. 


511  COXSTKLCTIVE    FRAUD.  §  95i 

by  such  expectants  are  not  necessarily  and  absolutely  voidable. 
But  in  every  such  conveyance  or  contract  with  an  lieir,  reversioner, 
or  expectant,  a  presumption  of  invalidity  arises  from  the  trans- 
action itself,  and  the  burden  of  proof  rests  upon  the  purchaser 
or  other  party  claiming  the  benefit  of  the  contract  to  show  affirm- 
atively its  perfect  fairness,  and  that  a  full  and  adecjuate  considera- 
tion was  paid, — that  is,  the  fair  marl-iet  value  of  the  property,  and 
not  necessarily  the  value  as  shown  by  the  life-tables.  If  he  suc- 
ceeds in  overcoming-  the  presumption  by  showing  these  facts,  the 
transaction  Avill'stand;  otherwise  it  will  be  set  aside.  It  is  not 
necessary  to  show  as  a  condition  of  relief  that  the  heir  or  reversion- 
er was  an  infant,  or  that  he  was  in  a  condition  of  actual  distress 
when  the  bargain  was  made.  A  court  of  equity  presumes  distress. 
The  very  fact  of  the  sale  or  charge  show^s  prima  facie  that  he  Avas 
not  in  a  position  to  make  his  own  terms,  and  that  he  submitted 
to  have  them  dictated  to  him  by  the  other  party.  The  foregoing 
rules  assume,  simply,  that  there  was  an  inadequacy  of  consideration, 
without  any  further  element  of  fraud.  If,  in  addition,  the  circum- 
stances show  actual  fraud,  misrepresentations,  or  concealments, 
oppression,  taking  undue  advantage  of  real  necessities,  or  other 
unfair,  inequitable  dealing  by  the  party  who  accjuires  the  expectant 
interest,  a  court  of  e((uity  Avill  grant  full  relief  without  regard 
to  any  presumption.^  Whenever  a  conveyance,  sale,  or  contract  for 
sale  is  set  aside  in  this  manner  on  the  sole  ground  of  inadecjuacy 
of  consideration,  the  relief  is  granted  only  upon  condition  that 
the  .sum  actually  paid  or  loaned,  with  interest  thereon,  is  refunded; 
and  the  court  will  so  frame  its  decree,  if  necessary,  that  the  con- 
veyance or  sale,  instead  of  being  immediately  and  absolutely  can- 
celed, shall  stand  as  security  for  the  amount  which,  it  is  adjudged, 
should   be  repaid.'-   .   .   . 

§954.  Post  Obit  Contracts. — In  strict  analogy  to  the  e(juitable 
relief  against  sales  of  expectancies,  and  depending  upon  the  same 
reasons,  is  that  against  post  obit  contracts.  A  post  obit  contract 
is  an  agreement  made  by  an  expectant  heir,  successor,  devisee,  or 
legatee,  whereby,  in  consideration  of  a  smaller  sum  loaned,  he 
promises  to  pay  to  the  creditor  a  much  larger  sum,  exceeding 
in  amount  the  principal  and  lawful  interest,  upon  the  death  of 
the  person  from  whom  he  expects  the  inheritance,  succession,  or 
bequest,  provided  he  himself  should  survive  such  person.     Such  an 

^Fry  V.  Lane,  L.  R.  40  Cli.  Div.  315:  MoClure  v.  Rabon.  12.5  Ind.  1.39,  25 
X.  E.  179,  9  L.  R.  A.  477,  1.33  Ind.  507,  33  X.  E.  275,  30  Am.  St.  Rep.  558; 
In  re  Garcelon,  104  Cal.  584,  38  Pae.  414,  32  L.  R.  A.  595,  43  Am.  St.  Rep. 
953:  Rear!  v.  Mosby,  87  Tenn.  759,  11  S.  W.  940,  5  L.  R.  A.  122. 

=  Miller  v.  Cook,  L.  R.  10  Eq.  G41;   Croft  v.  Graham.  2  De  Cox.  .T.  &  S.   15.5. 


§955  EiyUlTY     JUinSPKUDEXCE.  512 

instrumeiat  is  clearly  an  imposition  upon  the  debtor,  since  it  neces- 
sarily takes  advantage  of  his  actual  or  supposed  necessities.  It 
is  also  a  gross  fraud  upon  the  ancestor  or  testator;  it  offers  a  pre- 
mium upon  his  death ;  being  a  wagering  contract,  it  renders  the 
creditor's  interest  dependent  upon  his  speedy  death.  Post  obit  con- 
tracts, and  all  other  instruments  essentially  the  same  though  dif- 
fering in  form,  will  be  set  aside.  In  granting  this  relief,  as  in  the 
similar  ease  of  dealings  with  expectancies,  where  there  are  no 
special  circumstances  of  unfairness  or  imposition,  and  the  inad- 
equacy of  consideration  is  the  sole  ground  of  "interference,  the 
court  will  require  a  repayment  to  the  lender  of  what  is  justly  due, 
and  may  permit  the  security  to  stand  for  such  amount  until  it 
is  repaid.^ 

§  955.  II.  Transactions  Presumptively  Invalid  between  Persons 
in  Fiduciary  Relations. — It  is  of  the  utmost  importance  to  obtain 
an  accurate  conception  of  the  exact  circintistanccs  under  which  the 
equitable  principle  now  to  be  examined  applies ;  otherwise  the 
entire  discussion  of  the  doctrine  will  be  confused  and  imperfect. 
In  the  various  instances  described  in  the  preceding  paragraphs 
there  has  been  an  actual  undue  influence  consciously  and  designedly 
exerted  upon  a  party  who  was  peculiarly  susceptible  to  external 
pressure  on  account  of  his  mental  weakness,  old  age,  ignorance, 
necessitous  condition,  and  the  like.  The  existence  of  any  fiduciary 
relation  Avas  unnecessary  and  immaterial.  The  undue  ij^^uen^^ 
being  established  as  a  fad.  any  contract  obtainetl  ^^  »5rfler  trans 
action  accomplished  by  its  means  is  voidable,  and  is  set  aside 
without  the  necessary  aid  of  any  presumption.  The  single  circum- 
stance now  to  be  considered  is  the  existence  of  some  fiduciary 
relation,  some  relation  of  confidence  subsisting  between  two  par- 
ties. No  mental  weakness,  old  age,  ignorance,  pecuniary  distress, 
and  the  like,  is  assumed  as  an  element  of  the  transaction;  if  any 
such  fact  be  present,  it  is  incidental,  not  necessary, — immaterial, 
not  essential.  Nor  does  undue  influence  form  a  necessary  part 
of  the  circumstances,  except  so  far  as  undue  influence,  or  rather 
the  ability  to  exercise  undue  influence,  is  implied  in  the  very  con- 
ception of  a  fiduciary  relation,  in  the  position  of  superiority  occu- 
pied by  one  of  the  parties  over  the  other,  contained  in  the  very 
definition  of  that  relation.  This  is  a  most  important  statement, 
not  a  mere  verbal  criticism.     Nothing  can  tend  more  to  produce 

^  Gw^nine  v.  Hcatnn.  1  r>ro\\ni  Cli.  1,  0,  .3  Keener  .'50.1;  Crowe  v.  Ballard, 
:?  Brown  Ch.  117,  120,  2  Scott  750;  Boynton  v.  Hubbard.  7  Mass.  112.  As 
to  fair  and  valid  agreements  amonnr  expectant  heirs  or  snccessors  to  share 
the  property  which  may  come  to  them,  see  Trull  v.  Eastman.  3  Met.  121^  123, 
37  Am.  Dec.  12G. 


513  coxsTurcTivK  thaud.  §  SJ57 

confusion  and  iiiaeciiracy  in  the  discussion  of  the  subject  than 
the  treatment  of  actual  undue  influence  and  fiduciary  relations 
as  though  they  constituted  one  and  the  same  doctrine. 

§  956.  The  General  Principle. — It  was  shown  in  the  preceding 
section  that  if  one  person  is  placed  in  such  a  fiduciary  relation 
towards  another  that  the  duty  rests  upon  him  to  disclose,  and  he 
intentionally  conceals  a  material  fact  with  the  purpose  of  inducing 
the  other  to  enter  into  an  agreement,  such  concealment  is  an  actual 
fraud,  and  the  agreement  is  voidable  without  the  aid  of  any 
presumption.  We  are  now  to  view  fiduciarj^  relations  under  an 
entirely  different  aspect ;  there  is  no  intentional  concealment,  no 
misrepresentation,  no  actual  fraud.  The  doctrine  to  be  examined 
arises  from  the  very  conception  and  existence  of  a  fiduciary  rela- 
tion. While  equity  does  not  deny  the  possibility  of  valid  trans- 
actions between  the  two  parties,  yet  because  every  fiduciary  re- 
lation implies  a  condition  of  superiority  held  by  one  of 
the  parties  over  the  other,  in.  every  transaction  between 
them  by  which  the  superior  party  obtains  a  possible  benefit, 
equity  raises  a  presumption  against  its  validity,  and  casts  upon 
that  party  the  burden  of  proving  affirmatively  its  compliance  with 
equitable  requisites  and  of  thereby  overcoming  the  presump- 
tion.^ .  .  .  Courts  of  equity  have  carefully  refrained  from  defining 
the  particular  instances  of  fiduciary  relations  in  such  a  manner 
that  other  and  perhaps  new  cases  might  be  excluded.  It  is  set- 
tled by  an  overwhelming  weight  of  authority  that  the  principle 
extends  to  every  possible  case  in  which  a  fiduciary  relation  ex- 
ists OS  a  fact,  in  which  there  is  confidence  reposed  on  one  side, 
and  the  resulting  superiority  and  influence  on  the  other.  The 
.relation  and  the  duties  involved  in  it  need  not  be  legal;  it  may  be 
moral,  social,  domestic,  or  merely  personal. 

§  957.  Two  Classes  of  Cases. — There  are  two  classes  of  cases  to 
be  considered,  which  are  somewhat  different  in  their  external  forms, 
and  are  governed  by  different  special  rules,  and  which  still  depend 
upon   the    single    general   principle.      The   first   class    includes    all 

^Spp  Tate  v.  Williamson,  L.  R.  1  Eq.  528,  536.  per  Page  Wood,  V.  C.  (Lord 
Hatherley)  ;  Tate  v.  Williamson,  L.  R.  2  Cli.  55,  60,  61,  H.  &  B.  337.  Sh.  193. 
See,  also.  Rhodes  v.  Bates.  L.  R.  1  Ch.  252.  257:  Billage  v.  Soutliee,  0  Ilaro  534, 
540;  Hatch  v.  Hatch.  0  Ves.  202,  per  Lord  Eldon;  Smitt  v.  Kay,  7  IT.  L.  Cas.  750; 
also,  the  tolloAving  cases,  among  many  others,  in  which  §§  955,  956  are  quoted  and 
followed:  Keith  v.  Killam,  35  Fed.  243,  246;  Cowen  v.  Adams,  78  Fed.  536,  552,  47 
V.  S.  A.  676;  Noble's  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  60  Am.  Rej). 
175:  Nichols  v.  IMcCariliy.  53  Conn.  299.  55  Am.  Rep.  105,  23  Atl.  93:  Roby 
V.  Colehour,  135  III.  300.  25  N.  E.  777;  Thomas  v.  Whitney,  18fi  111.  225.  57 
N.  E.  808;  Tompkins  v.  Ilollistor.  60  T\TicIi.  470,  27  N.  W.  651;  Crawford  v. 
Crawford,  24  Nev.  410,  56  Pac.  94  ;Chenvront  v  Cheuvront,  (W.  Va.)  46  S.  E.  23? 
33 


§  y58  EQUITY     JURISPRUDENCE.  514 

those  instances  in  wliieh  the  two  parties  consciously  and  inten- 
tionally deal  and  negotiate  with  each  other,  each  knowingly  tak- 
ing a  part  in  the  transaction,  and  there  results  from  their  dealing 
some  conveyance,  or  contract,  or  gift.  To  such  cases  the  principle 
literally  and  directly  applies.  The  transaction  is  not  necessarily 
voidable,  it  inaij  be  valid ;  but  a  presumption  of  its  invalidity  arises, 
which  can  only  be  overcome,  if  at  all,  by  clear  evidence  of  good 
faith,  of  full  knowledge,  and  of  independent  consent  and  action. 
The  second  class  includes  all  those  instances  in  which  one  party, 
juirporling  to  act  in  his  fiduciary  character,  deals  w-ith  himself  iu 
his  private  and  personal  character,  without  the  knowledge  of 
his  beneficiary,  as  where  a  trustee  or  agent  to  sell  sells  the 
property  to  himself.  Such  transactions  are  voidable  at  the  suit 
of  the  beneficiary,  and  not  merely  presumptively  or  prima  facie 
invalid.  Nevertheless  this  particular  rule  is  only  a  necessary  ap- 
plication of  the  single  general  principle.  The  circumstances  show^ 
that  there  could  not  possibly  be  the  good  faith,  knowledge,  and  free 
consent  required  by  the  principle,  and  therefore  the  result  which 
is  a  rebuttable  presumption  in  the  first  class  of  transactions  becomes 
a  conclusive  presumption  in  the  second.  The  transactions  belonging 
to  the  first  class  may  be  gifts,  or  agreements  and  conveyances  upon 
valuable  consideration.  The  principle  is  applied  with  great  em- 
phasis and  rigor  to  gifts,  whether  they  are  simple  bounties,  or 
purport  to  be  the  effects  of  liberality  based  upon  antecedent  favors 
and  obligations.^  Contracts,  executory  or  executed,  made  upon  a 
valuable  consideration  are  not.  perhaps,  scrutinized  with  quite  so 
much  severity  as  gifts,  but  they  are  subjected  to  the  operation 
of  the  same  principle,  and  must  conform  to  its  requirements. - 
Having  thus  explained  the  general  nature  and  scope  of  the  prin- 
ciple, I  shall  now  describe  its  application  to  the  most  impoi'tant 
and  familiar  forms  of  fiduciary  relations,  and  its  effects  upon 
the  rights  and   liabilities  of  the  parties  thereto. 

§958.  Trustee  and  Beneficiary. — As  the  general  powers,  duties, 
and  liabilities  of  ti'ustees  ^^'in  be  more  fully  discussed  in  a  subse- 
quent chapter,  I  shall  at  present  simply  state  in  the  briefest  manner 
those  rules   growing  out  of  the   fiduciary   relation   whicli   regulate 

^Husuenin  v.  Hasolpy,  14  Ves.  27.3.  2  Lead.  Cas.  Eq.  IL^fi.  1174,  \\92;  Xicliols 
V.  McCarthy,  53  Conn.  299.  .5.5  Am.  Rep.  10.5.  2.3  Atl.  9.3:  Shea's  Appeal.  121 
Pa.  St.  302,  15  Atl.  029,  1  L.  R.  A.  422.  For  tlie  rule  reqnirinc;  indcprvdent 
advice  to  sustain  sifts,  see  post,  §§  958,  9(i0.  Testamentary  gifts  stand  npon 
a  somewhat  different  footin<y;  that  is,  they  may  he  valid,  while  a  gift  inter  vivos 
between  the  same  parties  might  be  void:  Hindson  v.  Weatherill.  5  De  Gex, 
M.  &  G.  301  ;   Bancroft  v.  Otis.  91   Ala  279,  24  Am.  St.  Rep.  904,  S  Sonth.  2m. 

-Tate  V.  Williamson,  L.  R.  2  Ch.  55,  H.  &  B.  337.  Sh.  193,  L.  R.  1  Eq.  528; 
Harkness  v.  Fraser,  12  Fla.  336,  34L 


515  CONSTRUCTIVE    FKAUD.  §  958 

their  dealings  with  their  beneficiaries.  In  the  first  place,  when  the 
trustee  deals  with  the  trust  property,  but  not  directly  with  the 
cestui  que  trust,  and  without  the  latter 's  intervention:  The  rule  is 
infiexibly  established  that  where,  in  the  management  and  perform- 
ance of  the  trust,  trust  property  of  any  description,  real  or  personal 
property,  or  mercantile  assets  is  sold,  the  trustee  cannot,  without 
the  knowledge  and  consent  of  the  cestui  que  trust,  directly  or  indi- 
rectly become  the  purchaser.  Such  a  purchase  is  always  voidable, 
and  will  be  set  aside  on  behalf  of  the  beneficiary,  unless  he  has 
affirmed  it,  being  sui  juris,  after  obtaining  full  knowledge  of  all 
the  facts.  It  is  entirely  immaterial  to  the  existence  and  operation 
of  this  rule  that  the  .sale  is  intrinsically  a  fair  one,  that  no  undue 
advantage  is  obtained,  or  that  a  full  consideration  is  paid,  or  even 
that  the  price  is  the  highest  which  could  be  obtained.  The  policy 
of  equity  is  to  remove  every  possible  temptation  from  the  trustee. 
The  rule  also  applies  alike  where  the  sale  is  private,  or  at  auction, 
Avhere  the  purchase  is  made  directly  by  the  trustee  him- 
self, or  indirectly  through  an  agent,  where  the  trustee 
-lets  simply  as  agent  for  another  person,  and  where  the 
purchase  is  made  from  a  co-trustee.  Finally,  the  rule  extends 
Avith  equal  force  to  a  purchase  made  under  like  circumstances  by 
a  trustee  from  himself.  A  trustee  acting  in  his  fiduciary  character, 
and  without  the  intervention  of  the  beneficiary,  cannot  sell  the 
trust  property  to  himself,  nor  buy  his  own  property  from  himself 
for  the  purposes  of  the  trust.^  In  the  second  place,  where  the 
'Ex  parte  Bpnnett.  10  Ves.  381.  394;  Michoud  v.  rxirod.  4  How.  .503,  Sh. 
LSI;  Romaine  v.  Hendr;cks3on,  27  N.  J.  Eq.  162;  Harrington  v.  Erie  Co.  Sav. 
Blc,  101  N.  Y.  2,57.  4  N.  E.  34(5:  Elting  v.  First  Nat.  Bank.  173  111.  368.  .50 
X.  E.  109.5.  Piirr7ut.<ir  rif  mirfion:  INTiclimul  v.  Oirod,  4  How.  503.  Sh.  181; 
Davoue  v.  Fanning.  2  -Johns.  Ch.  252,  2  Scott  690;  Broder  v.  Conklin,  121  Cal. 
282,  53  Pae.  699:  Scholle  v.  Scholle,  101  X.  Y.  172,  4  N.  E.  334  (by  special 
permission  of  the  court,  where  trustee  has  an  interest  to  protect).  .4^  judicial 
ftaJr:  Tracy  v.  Colby,  55  Cal.  67  (an  extraordinary  case)  ;  Powell  v.  Powell^ 
SO  Ala.  11.  Purchase  made  indirectly  fhroitgh  a  third  person:  Davoue  v^ 
Fanning.  2  .Tohns.  Ch.  2.52,  2  Scott  690:  Houston  v.  Brj^an,  78  Ga.  181,  1 
S.  E.  2.52.  6  Am.  St.  Pep.  252;  Wing  v.  Hartupee  (C.  C.  A.),  122  Fed.  897. 
Purchase  hi/  trustee  as  arient  for  a  third  person:  Gibson  v.  Barber.  100  N.  O. 
102.  6  S.  E.  766.  Purchase  from  a  co-trustee :  Whichcote  v.  Lawrence.  3  Ves. 
740.  The  rnle  is  also  settled,  where  not  abrogated  by  statute,  that  a 
Diorffiafiee  or  other  encumbrancer  irifh  power  of  sale  Ijecomes  a  trustee  for  the 
sale,  and.  as  siich,  can  not  directly  or  through  an  agent  purchase  the  property: 
Hyndman  v.  Hyndman,  19  Vt.  9,  46  Am.  Dee.  171;  Very  v.  Russell,  65  N.  H. 
646.  23  Atl.  522.  Although  a  trustee's  purchase  be  set  aside,  still,  if  it  was 
fair,  the  court  may  allow  the  trustee  for  his  payments  and  advances  and 
improvements  when  he  acted  in  god  faith:  INTulford  v.  IVrinch.  UN.  J.  Eq. 
16.  64  Am.  Dec.  472.  After  the  trust  has  been  completely  ended,  the  former 
trustee  may  purcliaso:  ^funn  v.  Burges,  70  111,  604;  In  re  Boles  «&,  British 
Land   Co.\s  Contract    (1902),   1   Cli.  244. 


§  iJ.jy  EQUITY     JLUlSi'UUDEXCE.  51(> 

trustee  deals,  with  respect  to  the  trust,  directly  with  his  beneficiary : 
A  purchase  hy  a  trustee  from  his  cestui  que  trust,  even  for  a  fair 
price  and  Avithout  any  undue  advantage,  or  any  other  transaction 
between  them  by  which  the  trustee  obtains  a  benefit,  is  generally 
voidable,  and  will  be  set  aside  on  behalf  of  the  beneficiary;  it  is  at 
least  prima  facie  voidable  upon  the  mere  facts  thus  stated.-  There 
is,  however,  no  imperative  rule  of  equity  that  a  transaction  between 
the  parties  is  necessarily,  in  every  instance,  voidable.  It  is  possible 
for  the  trustee  to  overcome  the  presumption  of  invalidity.  If  the 
trustee  can  show,  by  unimpeachable  and  convincing  evidence,  that 
the  beneficiary,  being  sui  juris,  had  full  information  and  complete 
understanding  of  all  the  facts  concerning  the  property  and  the 
transaction  itself,  and  the  person  with  whom  he  was  dealing,  and 
gave  a  perfectly  free  consent,  and  that  the  price  paid  was  fair 
and  adequate,  and  that  he  made  to  the  beneficiary  a  perfectly  hon- 
est and  complete  disclosure  of  all  the  knowledge  or  information 
concerning  the  property  possessed  by  himself,  or  which  he  might, 
with  reasonable  diligence,  have  possessed,  and  that  he  has  obtained 
no  undue  or  inequitable  advantage,  and  especially  if  it  appears 
that  the  beneficiary  acted  in  the  transaction  upon  the  independent 
information  and  advice  of  some  intelligent  third  person,  competent 
to  give  such  advice,  then  the  transaction  will  be  sustained  by  a 
court  of  equity.-'  The  doctrine  is  enforced  with  the  utmost  strin- 
gency, when  the  transaction  is  in  the  nature  of  a  bounty  conferred 
upon  the  trustee, — a  gift  or  benefit  without  full  consideration. 
Such  a  transaction  will  not  be  sustained,  unless  the  trust  relation 
Avas  for  the  time  being  completely  suspended,  and  the  beneficiary 
acted  throughout  upon  independent  advice,  and  upon  the  fullest 
information  and  knowledge. 

§  959.  Principal  and  Agent. — E(|uity  regards  nnd  treats  this 
relation  in  the  same  general  manner,  and  with  nearly  the  same 
strictness,  as  that  of  trustee  and  beneficiary.  The  underlyini^ 
thought  is,   that  an   agent  shoulci  xiot  unite   his  personal   and   his 

-Ex  parte  Lacey.  6  Ves.  625,  627;  Ingle  v.  Richards,  28  Bcav.  361;  Smitli  v. 
Towiishend,  27  Md.  368,  92  Am.  Dec.  637;  Bertman  v.  Whipple  (R.  I.)  57  Atl. 
37!). 

"  The  independent  advice  of  a  third  person  does  not  seem  to  be  an  essential 
feature  in  purchases  for  a  fair  consideration;  but  it  does  seem  to  be  in- 
dispensable in  transactions  having  the  natvire  of  gifts,  whereby  the  trustee 
obtains  some  benefit — as,  for  example,  a  release  of  claims  against  the  trustee 
given  by  the  cestui  que  trust  as  a  liounty:  Lloyd  v.  Attwood,  3  De  Oex  &  J. 
614.  As  to  purchase  by  trustee  from  the  beneficiary,  see  Coles  v.  Trecothick.  9 
Ves.  234,  246;  Nichols  v.  McCarthy.  r)3  Conn.  200.  23  Atl.  93,  55  Am.  Rep.  105; 
Colton  V.  Stanford,  82  Cal.  351.  16  Am.  St.  Rep.  137,  150.  23  Pac.  16.  As  to 
absolute  necessity  of  independent  advice  in  case  of  a  gift,  see  Allcard  v.  Skinner, 
36  Ch.  D.  145,  180  ff;  Powell  v.  Powell    (1000),  1  Ch.  243,  and  post,  §060. 


517  COXSTKLCTIVK    1-UALl).  §  959 

representative  cliarac'ters  in  the  same  transaction;  and  equity  ^vill 
not  permit  him  to  be  exposed  to  the  temptation,  or  brought  into  a 
situation  where  his  own  personal  interests  contiiet  with  the  interests 
of  his  prineipal,  and  with  the  duties  which  he  owes  to  his  princi- 
pal.^ In  dealings  without  the  intervention  of  his  prineipal,  if 
an  agent  for  the  purpose  of  selling  property  of  the  prineipal  pur- 
chases it  himself,  or  an  agent  for  the  purpose  of  buying  propeity 
for  the  principal  buys  it  from  himself,  either  directly  or  througli 
the  instriunentality  of  a  third  person,  the  sale  or  purchase  is  void- 
able; it  will  always  be  set  aside  at  the  option  of  the  principal; 
the  amount  of  consideration,  the  absence  of  undue  advantage,  and 
other  similar  features  are  wholly  immaterial;  nothing  will  defeat 
the  principal's  right  of  remedy  except  his  own  confirmation  after 
full  knowledge  of  all  the  facts.-  Passing  to  dealings  connected  with 
the  principal's  intervention,  in  any  contract  of  purchase  or  sale 
with  the  principal,  or  other  transaction  by  which  the  agent  obtains 
a  benefit,  a  presumption  arises  against  its  validity  which  the  agent 
must  overcome ;  although  this  presumption  is  undoubtedly  not  so 
weighty  and  strong  as  in  the  ease  of  a  trustee.  The  mere  fact 
that  a  reasonable  consideration  is  paid,  and  that  no  undue  ad- 
vantage is  taken,  is  not  of  itself  sufficient.  Any  unfairness,  any 
underhanded  dealing,  any  use  of  knowledge  not  communicated 
to  the  prineipal,  any  lack  of  the  perfect  good  faith  which  eciuity 
requires,  renders  the  transaction  voidable,  so  that  it  will  be  set 
aside  at  the  option  of  the  principal.^  If,  on  the  other  hand,  the 
agent  imparted  all  his  knowledge  concerning  the  matter,  and  ad- 
vised his  principal  with  candor  and  disinterestedness,  as  though 
he  himself  were  a  stranger  to  the  bargain,  and  paid  a  fair  price, 
and  the  principal  on  his  side  acted  with  full  knowledge  of  the 
subject-matter  of  the  transaction  and  of  the  person  with  whom 
he  was  dealing,  and  gave  a  full  and  free  consent. — if  all  these 
are  affirmatively  proved,  the  presumption  is  overcome,  and  the 
transaction  is  valid. ^  These  general  doctrines  are  applied  under 
ever}"  variety  of  circumstances,  and  to  every  kind  of  transaction. 
As   illustrations,  when  an   agent  has,  during  his  employment,   dis- 

'(iruniley  v.  Webb,  44  Mo.  444,  100  Am.  Dec.  304;  ]\Iallory  v.  :\Ialloiy- 
Wlieeler  Co.,  01  Conn.  135,  23  .\tl.  708  (corporation  director)  ;  Seribner  v. 
(\)llar.  40  Mich.  375,  29  Am.  Rep;  541. 

-Bentley  v.  Craven,  18  Beav.  75,  H.  &  B.  530;  Porter  v.  Wootlrnlf,  3()  X.  J. 
Eq.   174.  H.  &  B.  200. 

'Panama,  etc.,  Tel.  Co.  v.  India  Rnbber,  etc.,  Co.,  L.  R.  10  Ch.  515.  520. 
3  Keener  550  (surreptitious  dealing  by  ajjent  with  other  party)  ;  Hegenmyer 
V.  [Marks,  37  Minn.  0.  5  Am.  St.  Rop.  808,  32  N.  W.  785  (non-disclosure  of  fact 
enbancinij  value)  ;  Van  Dusen  v.  Bitrelow  (N.  Dak.)   100  N.  W.  723. 

*  Rochester  v.  Leverinj?,  104  Ind.  5f)2,  4  N.  E.  203. 


§  060  EQUITY    JUKISPUUDKXCE.  Ol'o 

covered  a  defect  in  his  principal's  title,  he  cannot,  after  the 
agency  is  ended,  use  such  knowledge  for  his  own  benefit ;  much 
less  can  he  do  so  while  the  agency  exists.^  Nor  is  an  agent  em- 
ployed to  purchase  or  to  sell,  or  in  any  other  business,  permitted 
to  make  profits  for  himself  in  the  transaction,  unless  by  the  plain 
consent  of  his  employer;  for  all  such  profits  wrongfully  made  he 
must  account  to  his  principal;'^  and  if  he  has  taken  the  legal  title 
to  property  in  violation  of  his  fiduciary  duty,  equity  will  treat  him 
as  a  trustee  thereof  for  his  principal.'  A  gift  by  a  principal  to 
his  agent  may  be  valid  and  be  sustained,  if  the  absolute  good  faith, 
knowledge,  and  intent  of  both  the  parties  is  clearly  established. "* 
After  the  agency  has  been  ended,  and  the  fiduciary  relation  has 
ceased,  the  foregoing  rules  no  longer  operate;  the  parties  may  deal 
w^ith  each  other  in  the  same  manner  as  any  other  persons.® 

§S60.  Attorney  and  Client. — The  courts  of  England  have  uni- 
formly watched  all  the  dealings  between  attorneys  or  barristers 
and  their  clients  with  the  closest  scrutiny,  and  have  established 
very  rigorous  rules  concerning  them.  It  must  be  conceded  that 
this  equitable  doctrine  has  been  to  a  considerable  extent  ignored, 
and  these  rules  have  been  greatly  modified  in  their  application, 
by  the  courts  in  several  of  the  American  states.  While  the  fact 
must' be  admitted,  it  cannot  be  too  much  deplored.^     In  regard  to 

°As  by  acquiring  a  tax  title  to  the  principal's  property  for  his  own  benefit: 
Ringo  V.  Binns,  10  Pet.  2ti!). 

=  De  Bussche  v.  Alt.  L.  R.  8  Ch.  Div.  281;  Bentley  v.  Craven,  18  Beav,  75, 
H,  &  B.  .330:  :\[cKinhy  v.  Williams,  74  Fed.  94,  20  C.  C.  A.  312,  36  U.  S, 
App.  740. 

'  See  post,  S  lO.lO:     Rose  v.  Ilayden,  35  Kan.  IOC.  10  Pac.  554,  57  Am.  Rep.  145. 

*The  equitable  rule  concerning  gifts  between  principal  and  agent  does  not 
seem  to  be  as  stringent  as  that  which  regulates  the  similar  dealings  of  trustees 
and  their  beneficiaries:  Ralston  v.  Turpin,  25  Fed,  7,  18,  affirmed,  129  U.  S, 
663,  9  Sup.   Ct.  420;   also,  Adair  v,  Craig,   135  Ala.  332,  33  South.   902. 

"Burwell  v.  Burwell  (Va.),  49  S.  E.  68.  Even  then,  however,  a  former 
agent  is  not  permitted  to  use  special  knowledge,  which  he  acquired  by  means 
of  his  agencj',  to  benefit  himself  at  the  expense  of  the  former  principal:  Trice 
V.  Comstock,  121  Fed.  620,  57  C,  C,  A.  646,  61  L.  R.  A,  176;  Luddy's  Trustee 
v.'Peard,  33  Ch.  D.  500. 

^  1  venture  the  suggestion  that  no  single  circumstance  has  clone  more  to 
debase  the  practice  of  the  law  in  the  popular  estimation,  and  even  to  lower 
the  lofty  standard  of  professional  ethics  and  self-respect  among  members 
of  the  legal  profession  itself,  in  large  portions  of  our  country,  than  the  nature 
of  the  transactions,  often  in  the  highest  degree  champertous,  between  attorney 
and  client,  which  are  permitted,  and  which  have  received  judicial  sanction. 
It  sometimes  would  seem  that  the  fiduciary  relation  and  the  opportunity  for 
undue  influence,  instead  of  being  the  grounds  for  invalidating  such  agreements, 
are  practically  regarded  rather  as  their  excuse  and  justification.  The  abov(> 
observations  of  the  author  are  quoted  with  approval  in  Elmore  v.  .Johnson, 
143  111.  513,  525,  36  Am.  St.  Rep.  401,  404,  32  X.  E.  413,  21  L.  R.  A.  306, 
H.  &  B.  343. 


519  CONSTULCTIVE    FKALU.  §  91)0 

jiifts,  the  rule  is  definitely  settled,  although  it  may  not  fihrajjs 
have  beeu  followed  by  American  courts,  that  no  gift  from  a  client 
to  his  attorney,  made  while  the  relation  is  still  subsisting,  is  valid. 
In  order  that  a  gift  from  a  client  to  his  own  attorney  nuiy  be 
sustained,  the  donee  must  not  only  show  affinnatireli/  the  perfe".t 
good  faith  of  the  transaction,  the  absence  of  any  pressure  or  in- 
tiuence  on  his  own  part,  the  complete  knowledge,  intention,  consent, 
and  freedom  of  action  on  the  donor's  part,  but  it  must  also  ap- 
pear that,  pro  hae  re,- — that  is,  in  all  the  dealings  connected  with 
the  gift  itself, — the  relation  of  attorney  and  client  between  the 
two  parties  had  been  suspended,  by  means  of  independent  advice 
furnished  to  the  client  by  some  disinterested  and  competent  third 
person,  through  which  the  client  was  instructed  and  upon  which  he 
acted.  Whatever  may  be  the  other  circumstances,  unless  it  bo 
shown  that  the  client,  in  conferring  his  bounty,  had  the  benefit  of 
such  independent  counsel  and  advice,  the  gift  must  fail.-  In  regard 
to  purchases,  sales,  and  other  similar  contracts  between  the  at- 
torney and  client,  the  rule  is  not  so  stringent.  Such  species  of 
contract  made  while  the  relation  is  still  subsisting  may  be  valid, 
and  independent  advice  to  the  client  from  a  third  person  is  never 
essential,  although  veiy  proper.  The  presumption  always  arises 
against  the  validity  of  a  purchase  or  sale  between  the  client  and 
attorney  made  during  the  existence  of  the  relation.  The  attorney 
nuist  remove  that  presumption  by  showing  affirmatively  the  most 
perfect  good  faith,  the  absence  of  undue  influence,  a  fair  price, 
knowledge,  intention,  and  freedom  of  action  by  the  client,  and 
also  that  he  gave  his  client  full  information  and  disinterested  ad- 
vice; in  the  language  of  Lord  Eldon,  "the  attorney  nuist  prove 
that  his  diligence  to  do  the  best  for  his  vendor  has  been  as  great 
as  if  he  was  only  an  attorney  dealing-  for  that  vendor  with  a 
stranger."^  If  all  these  circumstances  are  proved,  the  contract 
will  stand;  if  not,  it  will  be  defeated  or  set  aside.^    In  the  conduct 

=  Gibson  v.  Jeyes,  f)  Ves.  20(1,  271. 

=  Morgan  v.  Minnelt,  L.  R.  G  Ch.  Div.  G38;  Liles  v.  Terry  (1895),  2  Q.  B. 
870,  .3  Keener  827;  Greenfield's  Estate.  14  Pa.  St.  489,  506.  A  distinction  exists 
between  gifts  inter  vivos  and  testamentary  gifts.  A  bequest  to  the  testator's 
attorney  will  be  lield  valid,  even  where  the  attorney  himself  draws  up  the  ^^ill,  if 
the  testator's  capacity  and  freedom  of  action  be  shown:  Hindson  v.  Weathcrill, 
5  De  Gex,  M.  &  G.  301.     See  Post  v.  IMason,  91   N.  Y.   539,  43  Am.  Rep.  G89. 

♦Edwards  v.  Meyrick,  2  Hare  60:  Hesse  v.  Briant,  6  De  Gex,  M.  &  G.  623,  2 
Keener  S58;  Wright  v.  Carter  (1903).  1  Ch.  27.  The  American  cases  do  not 
exhibit  so  much  uniformity.  WHiile  all  recognize  the  general  rule,  theoretically 
at  least,  and  while  some  apply  it  with  firnmess  and  rigor,  otliers  have  virtually 
emasculated  it  in  its  application.  Transactions  have  been  sustained  ^\•hich  an 
English  court  would  hardly  suder  to  be  discussed,  and  would  visit  Hk^  attorneys 
engaged  in  them  with  the  severest  censure:     Dunn  v.  Dunn,  42  N.  J.  Fai.  431, 


§  961  EQUITY     JURISPllUDEXCE.  520 

of  his  employment,  the  attorney  must  consult  his  client's  interests 
in  preference  to  his  own.  He  is  not  permitted,  therefore,  to  make 
any  profit  out  of  the  employment,  other  than  his  due  compensa- 
tion, except  with  the  knowledge  and  consent  of  his  client;  for  all 
such  profits  he  must  account,  and  if  necessary,  will  be  treated  as 
a  trustee.^  When  an  attorney  has  the  charge  of  or  is  emploj^ed  to 
conduct  a  judicial  sale  of  property,  he  cannot  become  the  purchaser 
without  full  explanation  and  information  given  to  his  client  of 
his  intention.*^  The  English  rules  concerning  compensation,  and 
agreements  with  respect  to  payment  or  security  of  compensation, 
are  exceedingly  strict,  but  they  have  been  relaxed  in  many  if  not 
all  of  the  American  states.^  All  of  the  foregoing  rules  apply 
not  only  to  those  who  are  technically  attorneys,  but  also  to  all 
who  de  facto  act  as  professional  or  legal  advisers.^ 

§961.  Guardian  and  Ward. — The  equitable  rules  concerning 
dealings  between  guardian  and  ward  are  very  stringent.  The  re- 
lation is  so  intimate,  the  dependence  so  complete,  the  influence 
so  great,  that  any  transactions  between  the  two  parties,  or  by 
the  guardian  alone,  through  which  the  guardian  obtains  a  benefit, 
entered  into  while  the  relation  exists,  are  in  the  highest  degree 
suspicious;  the  presumption  against  them  is  so  strong  that  it  is 
hardly  possible  for  them  to  be  sustained.  Indeed,  many  authorities 
lay  down  the  positive  rule  that  the  parties  are  wholly  incapacitated 
from  contracting,  and  that  any  such  transaction  between  them 
is  necessarily  voidable.     This  statement  is  })erhaps  too  broad. ^     A 

7  All.  842,  3  Keener  819:  Elmore  v.  Johnson,  143  111.  r)13.  3G  Am.  St.  Rop, 
401.  32  N.  E.  413,  21  L.  R.  A.  3(56,  H.  &  B.  343. 

■*  As  to  making  a  profit,  etc.,  see  Luddy's  Trustee  v.  Peard,  33  Ch.  D.  500 
(using  information  gained  as  a  solicitor)  ;  ^McDowell  v.  Milroy,  69  111.  498.  Pur- 
chasing property  wliich  client  desires  to  purcliase:  Luddy's  Trustee  v.  Peard, 
supra;  Vallette  v.  Tedens,  122  111.  GOT,  3  Am.  St.  Rep.  .502,  14  X.  E.  .52  (holds 
it  in  trust  for  client).  Acting  for  two  parties,  and  making  a  contract  in  violation 
of  liis  duty  to  one  of  them:  Hesse  v.  Briant,  6  De  Gex,  M.  &  G.  623,  2  Keener 
858;  Baker  V.  Humphrey,  101  V.  S.  404.  Acting  for  opposing  litigants: 
Klabunde  v.  Byron-Reed  Co.,  (Nebr.)  98  X.  W.  182. 

"This  rule  seems  to  be  settled  by  the  English  decisions,  and  is  followed  by 
some,  but  not  by  all,  of  the  American  cases:  Olson  v.  Lamb,  56  Xebr.  104,  76 
X.  W.  433,  71  Am.  St.  Rep.  670;  Pacific  R.  R.  v.  Ketchum,  101  U.  S.  289 
( purchase  allowed ) . 

'See  Gresley  v.  Mousley.  3  De  Gex,  F.  &  J.  433;  Cheslyn  v.  Dalby,  2  Younge 
&  C.  170;  Kidd  V.  Williams,  1.32  Ala.  140,  31  South.  458,  56  L.  R.  A.  879 
(independent  advice  not  necessary). 

*Tate  V.  Williamson,  L.  R.  1  Eq.  .528.  2  Ch.  55,  H.  &  B.  337,  Sh.  193  (a 
friend  who  acted  as  legal  adviser)  :  Xesbit  v.  Lockman,  34  X.  Y.  167 
(attorney's  clerk)  :  Vallette  v.  Tedens,  122  HI.  607,  14  X.  E.  52,  3  Am.  St. 
Rep.  502  (abstractor  of  titles) . 

'Hatch   V,    Hatch,   9   Ves.    292;    Scott   v.    Freeland,    7    Smedes   &    M.    409,   45 


521  COXSTKLCTIVK    F1!AL  1).  §  903 

will  by  the  ward  in  his  guardian's  i'avor  is  not  viewed  so  strictly; 
the  presumption  against  it  may  be  overcome,  and  the  will  sustained.- 
The  general  doctrine  of  eciuity  applies  to  the  parties  after  the 
legal  condition  of  guardianship  has  ended,  and  as  long  as  the  de- 
pendence on  one  side  and  intiuence  on  the  other  presumptively 
or  in  fact  continue.  This  influence  is  presumed  to  last  while  the 
guardian's  functions  are  to  any  extent  still  performed,  while  the 
property  is  still  at  all  under  his  control,  and  until  the  accounts 
have  been  finally  settled.  It  follows,  therefore,  that  any  convey- 
ance, purchase,  sale,  contract,  and  especially  gift,  by  which  the 
guardian  derives  a  benefit,  made  after  the  termination  of  the  legal 
relation,  but  while  the  influence  lasts,  is  presumed  to  be  invalid 
and  voidable.  The  burden  rests  heavilj^  upon  the  guardian  to 
prove  all  the  circumstances  of  knowledge,  free  consent,  good  faith, 
absence  of  influence,  which  alone  can  overcome  the  presumption.'' 
If  the  legal  relation  has  ended,  and  all  these  circumstances  of  good 
faith,  full  knowledge,  and  free  consent  are  clearly  shown,  a  set- 
tlement, conveyance,  contract,  or  even  gift  from  the  former  ward 
to  his  recent  guardian  will  be  as  valid  and  as  effective  as  the  same 
transactions  between  any  other  competent  persons.*  It  is  not 
essential  that  a  legal  guardianship  should  exist;  the  doctrine  ap- 
plies wherever  the  relatioii  subsists  in  fact.° 

§962.  Parent  and  Child. — "Transactions  between  parent  and 
child  may  proceed  npon  arrangements  between  them  for  the  settle- 
ment of  property  or  of  their  rights  in  property  in  which  the}'  are 
interested.  In  such  cases  courts  of  equity  regard  the  transactions 
-Avith  favor.  They  do  not  minutely  weigh  the  considerations  on 
one  side  or  the  other.  Even  ignorance  of  rights,  if  ecjual  on  both 
sides,  may  not  avail  to  impeach  the  transaction.  On  the  other  hand, 
the  transaction  may  be  one  of  bonnty  from  the  child  to  the  parent, 
soon  after  the  child   has   attained  twenty-one.     In  such   cases  the 

Am.  Dec.  310  (laches)  ;  Ilindnian  v.  O'Connor,  54  Ark.  627.  10  S.  W.  1052. 
1.3  L.  R.  A.  400;  see.  liowover.  Boyor  v.  East,  161  X.  Y.  580,  56  X.  E.  114, 
76   Am.    St.    Rep.    200. 

-Daniel   v.   Hill,   52   Ala.   430    (a    very    instnietive  case).' 

'Hatch  V.  Hatch,  9  Ves.  202;  Waller  v.  Armistead,  2  Leigh  11.  21  Am. 
Dec.  504;  Gillett  v.  Wiley,  126  111.  310,  19  N.  E.  287.  9  Am.  St.  Rep.  587; 
Asl.ton  V.  Thompson.  32  INIinn.  25,  41,  42,  18  X.  W.  018,  2  Scott  703:  Sav  v. 
Barnes,   4   Serg.   &•   R.    112.   8   Am.  Dee.   670. 

^Ralston  v.  Turpin,  25  Fed.  7,  IS,  affirmed.  120  V.  S.  663.  0  Sup.  Ct.  420; 
Bickerstaff  v.  Marlin.   60   ]\Iiss.   509.   45   Am.   Rep.    41S. 

^For  example,  wherever  a  yoiino:  person  has  actually  been  l)r()u<,dit  up  in 
the  family  and  under  the  care  of  a  relative  or  friend:  Revett  v.  Harvey,  1 
Sim.  &  St.  .502:  Allfrey  v.  Allfrey.  1  INIacn.  k  O.  87,  98,  1  Scott  394;  Butler 
V.  Hyland,  SO  Cal.  575,  26  Pac.  IIOS.  Guardian  de  son  tort:  Town  of  Thornton 
V.  Oilman,   67   N.  H.  392,   39   Atl.   900. 


§  9G3  EQUITY    JLKISPRUDENCE.  522 

court  views  the  transaction  witli  jealousy,  and  anxiously  interposes 
its  protection  to  guard  the  child  from  the  exercise  of  parental  in- 
fluence."^ "The  law  on  this  subject  is  well  settled.  A  child  makes 
a  gift  to  a  parent,  and  such  a  gift  is  good  if  it  is  not  tainted  by 
parental  influence.  A  child  is  presumed  to  be  under  the  exercise  of 
parental  influence  as  long  as  the  dominion  of  the  parent  lasts. 
Whilst  that  dominion  lasts  it  lies  on  the  parent  maintaining  the  gift 
to  disprove  the  exercise  of  parental  influence,  by  showing  that  the 
child  had  independent  advice,  or  in  some  other  way.  "When  the 
parental  influence  is  disproved,  or  that  influence  has  ceased,  a  gift 
from  a  child  stands  on  the  same  footing  as  any  other  gift;  and 
the  question  to  be  determined  is,  whether  there  was  a  deliberate, 
unbiased  intention  on  the  part  of  the  child  to  give  to  the  parent.  "- 
Where  the  positions  of  the  two  parties  are  reversed,  where  the 
parent  is  aged,  infirm,  or  otherwise  in  a  condition  of  dependence 
upon  his  own  child,  and  the  child  occupies  a  corresponding  relation 
of  authority,  conveyances  conferring  benefits  upon  the  child  may 
be  set  aside.  Cases  of  this  kind  plainly  turn  upon  the  exercise 
of  actual  undue  influence,  and  not  upon  any  presumption  of  in- 
validity; a  gift  from  parent  to  child  is  certainly  not  presumed  to 
be   invalid." 

§  963.  Other  Relations. — The  equitable  doctrine  applies  wit'h 
strictness  to  executors  and  administrators  who,  in  common  with 
all  trustees,  are  prohibited  from  purchasing  the  property  of  the 
estate  when  sold  in  course  of  administration,  and  from  making  any 
personal  profits  by  their  dealings  with  it.^  The  same  general  prin- 
ciple extends,  with  more  or  less  force,  to  dealings  between  a  phy- 
sician and  patient,-  a  spiritual  adviser  and  penitent,^  vendor  and 

'  Baker  v.  Bradley,  7  De  Gex,  M.  &  G.  597. 

=  Wright  V.  Vanderplank,  8  De  Gex,  M.  &  G.  133,  146,  per  Turner,  L.  J.; 
Xohle's  Adm'r  v.  Moses,  81  Ala.  530,  1  South.  217,  60  Am.  Rep.  175  (a  very 
iiistruotive  opinion);  Carter  v.  Tice,  120  111.  277,  11  N.  E.  529;  Ashton  v. 
Thompson,  32  Minn.  25,  41,  42,  18  N.  W.  918.  The  gift  was  upheld  in  Far- 
rant  V.  Blanchford,  1  De  Gex,  J.  &  S.  107;  Knox  v.  Singmaster,  75  Iowa  64, 
39  N.  W.  183,  3  Keener  813. 

^Muloek  V.  Mulock,  31  N.  J.  Eq.  594;  Yeakel  v.  McAtee,  150  Fa.  St.  600, 
27  Atl.  277:  Burwell  v.  Burwell  (Va.)  49  S.  E.  68.  The  general  doctrine 
of  the  text  is  applied  to  transactions  between  other  near  relation?,  as  gifts  to 
a  brother  from  a  dependent  sister:  Gillespie  v.  Holland,  40  Ark.  28,  48  Ara- 
Rep.   1. 

'  Elting  V.  First  Nat.  Bank,  173  111.  368,  50  N.  E.  1095.  The  majority  of 
the  American  cases   cited  ante,  under  §   958,  are  of  this  character. 

=  rnruh  V.  Lukens,   166  Pa.   St.   324,  31  Atl.   110. 

•'Allcard  v.  Skinner,  36  Ch.  Div.  145;  Morley  v.  Loughnan.  [1893]  1  Ch. 
736,  3  Keener  833  (actual  rather  than  constructive  undue  influence)  ;  Pironi 
V.  Corrigan,  47  N.  J.  Eq.  135,  20  Atl.  218;  Connor  v.  Stanley,  72  Cal.  556,  1 
Am.   St.  Rep    84,   14  Pac.   306    (spiritualist  medium). 


523  '  CO.NSTKUCTIVE    riJAUD.  §  9G4 

venelee  of  land/  liusbaiuls  and  wives,  and  persons  occupying  their 
jiosition,''  partners,''  and  indeed  all  persons  who  occupy  a  position 
of  trust  and  confidence,  of  intiueuce  and  dependence,  in  fact, 
although  not  perhaps  in  law.'  There  remain  to  be  mentioned  two 
other  important  relations  which  are  partially  fiduciary,  and  to 
which  the  principle  applies  with  limitations, — that  of  surety  and 
creditor  and  principal  debtor,  and  that  subsisting  between  pro- 
moters and  directors  or  trustees  of  corporations  and  the  corpora- 
tion itself  and  the  stockholders.®  These  subjects  are  more  fully 
examined  in  a  subsequent  chapter. 

§964.  Confirmation  or  Ratification. — Where  a  party  originally 
had  a  right  of  defense  or  of  action  to  defeat  or  set  aside  a  trans- 
action on  the  ground  of  actual  or  constructive  fraud,  he  may  lose 
such  remedial  right  by  a  subsequent  confirmation,  by  acquiescence, 
and  even  by  mere  delay  or  laches.  "Wherever  a  confirmation  would 
itself  be  subject  to  the  same  objections  and  disabilities  as  the 
original  act,  a  transaction  cannot  be  confirmed  and  made  binding; 
for  confirmation  assumes  some  positive,  distinct  action  or  language, 
Avhich,  taken  together  with  the  original  transaction,  amounts  to 
a  valid  and  binding  agreement.  In  general,  contracts  which  are 
void  from  illegality  cannot  be  ratified  and  confirmed;  eontrafts 
which  are  merely  voidable  because  contrary  to  good  conscience 
or  equity  may  be  ratified,  and  thus  established.^    If  the  party  origi- 

*  Baker  v.  Monk,  4  De  Gex,  J.  &  S.  388.  Mortgagor  and  mortgagee:  Liskey 
V.  Snyder,  (\V.  Va.)   40  S.  E.  515;  see  post,  §  1193. 

'Corley  v.  Lord  Stafford,  1  De  Gex  &  J.  238;  Hall  v.  Otterson,  52  X.  J. 
Eq.  522,  28  Atl.  907,  3  Keener  401.  Persons  betrothed:  Russell  v.  Russell, 
129  Fed.  434.  Persons  cohabiting  under  a  void  marriage:  Coulson  v.  Allison, 
2  De  Gex,  F.  &  J.  521.  Presumption  against  validity  of  conveyance  by  a 
man  to  his  mistress:  Shipman  v.  Furniss,  69  Ala.  555,  44  Am.  Rep.  528. 
An  important  application  of  the  principle  is  seen  in  the  group  of  cases  where 
one  spouse  receives  a  conveyance  from  the  other  on  a  parol  agreement  to  re- 
convey,  and  is  held  to  be  a  constructive  trustee  by  virtue  of  the  confidential 
relation;  while  in  the  absence  of  such  relation,  and  of  actual  fraud  on  the 
grantee's  part,  the  statute  of  frauds  would  generally  prevent  a  trust  from 
attaching  to  the  property:  See  Brison  v.  Brison,  75  Cal.  525,  7  Am.  St. 
Rep.   189,  17  Pac.  689,  and  other  eases  post,  §   1056,  end  of  note. 

"Bentley  v.  Craven,  18  Beav.  75,  H.  &  B.  530;  Colton  v.  Stanford,  82  Cal. 
;551,  23  Pac.   10,   16  Am.   St.  Rep.   137. 

'Tate  V.  Williamson,  L.  R.  1  Eq.  528,  2  Ch.  55,  H.  &  B.  337,  Sh.  193;  Wake- 
man  V.  Dodd,  27  N.  J.  Eq.  504;   Allen  v.  Jackson,  121  111.  567,  13  N.  E.  840. 

»See  ante,  §  881;  post,  §  1077;  New  River  ]\Iinera]  Co.  v.  Seeley,  120  Fed. 
193;  Munson  v.  Syracuse,  G.  &  C.  R.  Co.,  103  N.  Y.  58,  8  N.  E.  355,  H.  &  B. 
531;  Yale  Gas  Stove  Co.  v.  Wilcox,  64  Conn.  101,  29  Atl.  303,  42  Am.  St. 
Kep.  159,  25  L.  R.  A.  90:  Oliver  v.  Oliver  ((^.a.)  45  S.  E.  232. 

'Thus  contracts  illegal  because  opposed  to  statute,  or  to  public  policy,  or 
to    good    morals,    cannot    be    ratified,    because    the    ratilicatioii    itself    would    be 


5;  ;)oO  EQUITY   jurispkudkxcj:.  ."24: 

jially  possessing  the  remedial  right  has  obtained  full  knowledge 
of  all  the  material  facts  involved  in  the  transaction,  has  become 
fully  aware  of  its  imperfection  and  of  his  own  rights  to  impeach 
it.  or  ought,  and  might,  with  reasonable  diligence,  have  become 
so  aware,  and  all  nndue  influence  is  wholly  removed  so  that  he 
can  give  a  perfectly  free  consent,  and  he  acts  deliberately,  and 
with  the  intention  of  ratifying  the  voidable  transaction,  then  his 
confirmation  is  binding,  and  his  remedial  right,  defensive  or  af- 
firmative, is  destroyed.'-  If,  on  the  other  hand,  the  original  undue 
influence  still  remains,  or  if  the  act  is  simply  a  continuation  of  the 
former  transaction,  or  if  the  party  wrongly  supposes  that  the 
original  tract  or  transaction  is  binding,  or  if  he  has  not  full  knowl- 
edge of  all  the  material  facts  and  of  his  own  rights,  no  act  of 
confirmation,  however,  formal,  is  effectual;  the  voidable  nature  of 
the  transaction  is  unaltered." 

i<  965.  Acquiescence  and  Lapse  of  Time. — A  second  mode  hy 
which  the  remedial  right  may  be  destroyed,  and  the  transaction 
rendered  unimpeachable,  is  acquiescence.  The  term  "accpilescence" 
i.s  sometimes  used  improperly.  It  differs  from  confirmation  on  the 
one  side,  and  from  mere  delay  on  the  other.  While  eonfil-mation 
implies  a  deliberate  act,  intended  to  renew  and  ratify  a  transaction 
known  to  he  voidable,  acquiescence  is  some  act,  not  deliberately 
intended  to  ratif}'  a  former  transaction  known  to  be  voidable,  but 
recognizing  the  transaction  as  existing,  and  intended,  in  some  ex- 
tent at  least,  to  carry  it  into  effect,  and  to  obtain  or  claim  the  bene- 
fits resulting  from  it.  The  theory  of  the  doctrine  is,  that  a  party, 
having  thus  recognized  a  contract  as  existing,  and  having  done 
something  to  carry  it  into  eft'ect  and  to  obtain  or  claim  its  benefits, 
although  perhaps  only  to  a  partial  extent,  and  having  thus  taken 
his  chances,  cannot  afterwards  be  suft'ered  to  repudiate  the  transac- 
tion and  allege  its  voidable  nature.  It  follows  that  mrrc  delay, 
mere  suffering  time  to  elapse  without  doing  anything,  is  not  ac- 
quiescence, although  it  may  be,  and  often  is,  strong  evidence  of  an 
acquiescence;  and  it  may  be,  and  often  is,  a  distinct  ground  for  re- 
fusing   equitable    relief,    either    affirmative    or    defensive.^      As    ac- 

oqually  opposed  to  statute,  good  morals,  or  public  policy.  Contracts  obtained 
by  actual  fraud,  hy  undue  influence,  by  breach  of  fiduciary  duty,  and  the  like, 
may  fic  confirmed,  because  the  jmrtics  aJone  are  cuncterned ;  tlie  state  or  society 
has  no  special  interest,  as  it  has  in  those  opposed  to  statute,  public  policy, 
or  good  morals. 

=  Chesterfield  v.  Janssen.  2  Ves.  Sr.  r2."i,  1  Atk.  314.  See,  also,  §  910;  Cum- 
berland Coal  Co.  V.  Sherman,  20  Md.   117. 

'Crowe  V.  Ballard,  3  Brown  Ch.   117.  2   Cox  2.i:i.  2  Scott   7.")!). 

'See  Duke  of  Leeds  v.  Amherst.  2  Phill.  Ch.  117.  123:  Do  Bussche  v.  Alt, 
L.  R.  8  Ch.  Div.  280,  314.     The  suit  was  brought  to  set  aside  a  sale  made  by 


525  COXSTHLCTIVK    FKAID.  §  91)5 

(iuiescence  is  thus  a  recognition  of  and  consent  to  the  contract  or 
other  transaction  as  existing,  the  requisities  to  its  being  ett'ective 
as  a  bar  are,  knowledge  or  notice  of  the  transaction  itself,  knowl- 
edge of  the  party's  own  I'ights,  absence  of  all  undue  influence  oi' 
restraint,  and  consequent  freedom  of  action ;  a  conscious  intention 
to  ratify  the  transaction,  however,  is  not  an  essential  element.  When 
a  party  with  full  know'ledge,  or  at  least  with  suf^cient  notice  or 
means  of  knowledge,  of  his  rights,  and  of  all  the  material 
facts,  freely  does  what  amounts  to  a  recognition  of  the  transac- 
tion as  existing,  or  acts  in  a  manner  inconsistent  with  its  repudia- 
tion, or  lies  by  for  a  considerable  time  and  knowingly  permits  the 
other  party  to  deal  vrith  the  subject-matter  under  the  belief  that 
the  transaction  has  been  recognized,  or  freely  abstains  for  a  con- 
siderable length  of  time  from  impeaching  it,  so  that  the  other  party 
is  thereby  reasonably  induced  to  suppose  that  it  is  recognized, 
tliere  is  acquiescence,  and  the  transaction,  although  originally  im- 

an  agent  to  himself  in  violation  of  his  fiduciary  duty.  The  lord  justice  said: 
"It  still  remains  to  be  considered  whether,  short  of  such  ratification  or  adop- 
tion, the  plaintifl'  can  be  held  to  have  by  his  conduct  in  any  way  precluded 
himself  from  taking  the  present  proceedings.  The  term  'acquiescence,'  which 
has  been  applied  to  his  conduct,  is  one  whicli  w'as  said  by  Lord  Cottenham, 
in  Duke  of  Leeds  v.  .Amherst,  supra,  ought  not  to  be  used;  in  other  words, 
it  does  not  accurately  express  any  known  legal  defense,  but  if  used  at  all  it 
must  have  attached  to  it  a  very  cliflferent  signification,  according  to  whetlier 
the  acquiescence  alleged  occurs  while  the  act  acquiesced  in  is  in  progress  or 
only  after  it  has  been  completed.  If  a  person  having  a  right,  and  seeing 
another  person  al)out  to  commit,  or  in  the  course  of  committing,  an  act  in- 
fringing upon  that  right,  stands  by  in  such  a  manner  as  really  to  induce  the 
person  committing  the  act,  and  who  might  otherwise  have  abstained  from 
it,  to  believe  that  he  assents  to  its  being  committed,  he  cannot  afterwards 
be  heard  to  complain  of  the  act.  This,  as  Lord  Cottenham  said  in  the  ease 
already  cited,  is  in  the  proper  sense  of  the  term  'acquiescence,'  and  in  that 
<(nsp  may  be  defined  as  acquiescence  under  such  cii'cumstances  as  that  assent 
may  be  reasonably  inferred  from  it,  and  is  no  more  than  an  instance  of  the 
law  of  estoppel  by  words  or  conduct.  But  Avhen  once  the  act  is  completed, 
without  any  knowledge  or  assent  upon  the  part  of  the  person  whose  right  is 
infringed,  the  matter  is  to  be  determined  on  very  different  legal  considera- 
tions. A  riglit  of  action  has  then  vested  in  him  which,  at  all  events  as  a  gen- 
eral rule,  cannot  be  divested  without  accord  and  satisfaction,  or  release  under 
seal.  Mrre  fnihinifision  to  the  injury,  for  any  time  short  of  the  period  limited 
by  -laiuic  for  tlie  enforcement  of  the  right  of  action,  eannoi  take  away  sucb 
viiilit.  although  under  the  name  of  laahcs  it  may  afford  a  ground  for  refusing 
relief  under  some  peculiar  eircumstances;  and  it  is  clear  that  even  an  ex- 
press promise  by  the  person  injured,  that  he  would  not  "take  any  legal  pro- 
ceedings to  redress  the  injury  done  1o  him,  could  not  by  itself  constitute 
a  bar  1o  sueli  proceedings,  for  the  jironiise  would  bi^  without  consideration, 
and  theicfore  not  bimling."  In  pursuance  of  this  ])rinciplc  so  admirably  ex- 
))lained,  the  doctrine  of  "aiquiescciiee"'  pi-o|)erI\-  belongs  to  and  is  hereinbe- 
fore discussed  in  connection  with  e(|nitable  esto]ipel,  ante,  §§   810-821, 


§  967  EQUITY     JUUISI'UUUEXCE.  536 

poaehable,  becomes  unimpeachable  in  equity."  Even  where  there 
has  been  no  act  nor  language  properly  amounting  to  an  acquies- 
cence, a  mere  delay,  a  mere  sutfering  time  to  elapse  unreasonably, 
may  of  itself  be  a  reason  why  courts  of  equity  refuse  to  exercise 
Iheir  jurisdiction  in  cases  of  actual  and  constructive  fraud,  as  well 
as  in  other  instances.  It  has  always  been  a  principle  of  equity  to 
discourage  stale  demands;  laches  are  often  a  defense  wholly  inde- 
pendent of  the  statute  of  limitation.  Promptness  in  asserting  a 
remedial  right  against  fraud  is  sometimes  required;  but  no  delay 
will  prejudice  a  defrauded  party  as  long  as  he  was  ignorant  of  the 
fraud.  Each  case  involving  the  defense  of  delay  or  lapse  of  time 
must,  to  a  great  extent,  depend  upon  its  own  circumstances.'' 

i^  966.  Third.  Frauds  against  Third  Persons  Who  are  not  Par- 
ties to  the  Transaction, — As  a  general  rule,  in  the  cases  which 
come  within  this  group,  and,  strictly  speaking,  none  others  should 
belong  to  it,  the  transaction  is  not  fraudulent  as  to  the  immediate 
parties, — the  grantor  and  the  grantee,  and  the  like ;  at  least,  neither 
of  them  is  permitted,  as  against  the  other,  to  set  aside  the  convey- 
ance, or  to  defeat  the  enforcement  of  the  contract  if  it  be  executory. 
The  transaction  is  of  such  a  nature  that  it  defrauds  or  invades  the 
rights  of  third  persons,  who  are  not  its  immediate  parties;  and  they 
alone  are,  in  general,  entitled  to  impeach  it  and  to  obtain  affirmative 
relief  against  it.^  The  only  cases  to  be  considered  under  this  divi-' 
sion  are  secret  bargains  in  fraud  of  compositions  with  creditors, 
transfers  in  fraud  of  creditors,  and  transfers  in  fraud  of  subse- 
(luent  purchasers. 

§  907.  Secret  Bargains  in  Fraud  of  Compositions  with  Creditors. 
— Where  a  composition  is  made  by  a  debtor  with  his  creditors  upon 
the  basis  of  his  payment  to  all  who  join  in  the  transaction  the  sam(^ 
l)i"oportionate  share  of  their  claims,  and  of  being  therefore  dis- 
chai-ged  b^'  them  from  all  further  liability,  a  secret  agreement  by 
tb.e  debtor  with  one  of  these  creditors,  expressly  or  impliedly  as  a 
condition  for  the  hitter's  joining  in  the  composition,  whereby  tlie 
debtor  pays  or  secures  to  the  favored  creditor  a  further  sum  of 
money  or  amount  of  property,  or  greater  advantage  than  that  re- 
ceived and  shared  alike  by  all  the  other  creditors,  is  a  fraud  u])on 
such  other  creditors,  and  is  voidable.  The  agreement,  if  executory, 
cannot  be  enforced  against  the  debtor  in  equity  or  at  law;  the  se- 

-  Wright  V.  Vanderplank,  8  De  Gex,  M.  &  G.  1.33;  Allcard  v.  Skinner,  30 
Ch.  Div.  145,  173,  187;  Michoud  v.  Girod,  4  How.  503,  561,  Sh.  181  (relief 
after  lapse  of  nearly  thirty  years)  ;  Jennings  v.  Broiighton,  5  De  Gex,  M.  & 
O.    126,    140;    Denton  v.   McNeil,   L.   R.   2   Eq.   352,      See,  also,   ante,    §    881. 

"See  ante,  §  917,  §S  418,  410. 

^This  is  the  general  rule;  tliere  is,  however,  one  important  exception,  men- 
tioned in  the  next  paragraph. 


527  CONSTliU'TlVK    FUAID.  §  Ofil) 

ciirity  may  be  set  aside  by  a  court  of  equity,  and  the  amount  paid 
by  the  debtor  in  pursuance  of  the  contract  may  be  recovered  back 
by  him.  The  relief,  defensive  or  affirmative,  thus  given  to  the 
debtor  does  not  rest  upon  any  consideration  of  favor  due  and  shown 
to  him,  but  Avholly  upon  motives  of  policy,  to  protect  the  rights  of 
the  other  creditors  and  to  secure  them  against  such  frauds.^     .     .     . 

i;  968.  Conveyances  in  Fraud  of  Creditors. — Dealings  by  a  per- 
son with  his  i)ropert.v  with  intent  to  defraud  his  creditors  were 
voidable  at  the  common  law ;  but  the  existing  rules  on  the  subject 
both  in  England  and  in  this  country  are  founded  upon  .statute.^ 
The  operative  statute  in  England,  which  is  also  the  basis  of  all 
legislation  and  judicial  decision  in  the  United  States,  is  the  celebrat- 
ed act  13  Eliz.,  c.  5.  It  enacts  that  all  conveyances,  etc.,  of  an}^ 
lands,  goods,  or  chattels,  had  or  made  of  purpose  to  delay  or  de- 
friuid  creditors  and  others  of  their  actions  or  debts,  shall  be  taken 
only  as  against  such  persons  and  their  representatives  as  shall  or 
might  be  so  delayed  or  defrauded,  to  be  utterly  void;  provided  that 
the  act  shall  not  extend  to  any  conveyance  or  assurance  made  on 
good  consideration  and  bona  fide  to  a  person  not  having  notice  of 
such  fraud.-  I  purpose  merely  to  state,  as  far  as  possible,  the  gen- 
ei'al  and  fundamental  principles  and  doctrines  which  have  been 
established  in  the  judicial  construction  of  this  legislation,  and  the 
inost  important  classes  of  cases  to  Avhich  it  is  applied. 

§  969.  The  Consideration. — It  should  be  observed  that  the  stat- 
ute, by  its  generality  of  expression,  being  without  any  such  limita- 
tion, applies  to  both  existing  and  subsequent  creditors,  and  to  both 
conveyances  made  upon  a  valuable  consideration  and  those  without 
any  consideration.  It  does  not  declare  voluntary  conveyances  void ; 
it  only  pronounces  fraudulent  conversances  void,  whether  they  are 
voluntary  or  made  upon  a  consideration.  The  validity  of  a  con- 
veyance, as  against  creditors,  is  made  in  the  proviso  to  depend 
"upon  its  being  upon  a  good  consideration  and  bona  fide-,"  either 
is  not  sufficient;  consideration  without  good  faith  plainly  does  not 
displace  the  operation  of  the  statute;  and  good  faith  witliout  con- 

Mn  re  Lenzbeif?,  L.  R.  7  Ch.  Div.  (iSO;  Soliiioer  v.  Earle,  82  N.  Y.  393,  H. 
&  B.  3.51;   Miller  v.  Sauerbier,  30  N.  J.  Eq.  71. 

'The   earlier   statutes   were   50   Edw.    III.,   c.    6;    3    Hen.    VII..    c.   4. 

-All  the  .siil)stantial  provisions  of  this  statute  have  been  adopted  by  tlic 
American  legislation;  still  the  statutes  in  man.v  or  most  of  the  states  employ 
quite  different  language,  and  contain  important  modifications  and  additions. 
Rome  of  them  insert  a  general  clause,  in  terms  applying  to  all  the  other  pro- 
visions, to  the  effect  that  the  fraudulent  intent  sliall  always  be  a  question 
of  fact;  in  some  this  clause  is  confined  to  a  portion  only  of  the  provisions; 
while  in  some  it  is  entirel.v  omitted.  There  is  a  great  diversity  of  external 
form,   at   least,   in    the   American   legislation  on  this   subject. 


^  UTO  -  EQUITY     JUUlSl'ULDEXLi:.  528 

sideration  does  not  necessarily  protect  a  conveyance.  A  deed  made 
ujjon  a  valuable  consideration,  but  not  bona  tide, — that  is,  vv'ith  a 
fraudulent  intent, — is  void  against  creditors  of  the  grantor  as 
though  it  were  voluntary.'  Although  the  statute  speaks  of  a  "good 
consideration,"  yet  it  is  fully  settled  that  a  valuahic  consideration 
is  intended, — a  consideration  pecuniary  in  contemplation  of  laAv,  of 
v.iiich  kind  marriage  is  an  instance.  The  "good"  consideration  of 
love  and  affection  does  not  meet  the  demands  of  the  statute,  and 
does  not  of  itself  validate  a  conveyance.-  Voluntary  conveyances 
are  perfectly  valid  and  binding  as  between  the  immediate  parties 
and  all  persons  claiming  under  them  in  privity  of  estate  ;^  but  they 
may  be  void  as  against  creditors,  and  will  be  void  so  far  as  they 
delay  or  defraud  creditors.  A  voluntary  conveyance  may  be  a 
strong  indication  of  a  fraudulent  intent,  and  may  sometimes  raise 
a  presumption  of  such  intent ;  still  the  fact  that  a  conveyance  is 
voluntarj^,  under  the  general  course  of  legislation  and  decision  in 
this  country-,  is  material  only  in  connection  with  the  fraudulent  in- 
tent, only  as  it  shows  or  tends  to  show  the  existence  of  such  intent. 
A  voluntary  conversance  as  suck  is  not  necessarih^  void  even  against 
existing  creditors. 

.:<  970.  The  Fraudulent  Intent. — The  essential  element  required 
I)V  the  statute,  in  order  tt)  render  a  transfer  voidable,  is  the  fraud- 
ulent intent.  There  must  be  an  intent  to  hinder,  dela.y,  or  defraud 
creditors.  All  other  considerations  are  subordinate  and  ancillary 
to  the  establishment  of  this  indispensable  feature.  The  discussion 
which  has  arisen  under  the  statute,  and  the  special  rules  which 
liave  been  formulated,  are  chiefly  concerned  with  the  question, 
Vv'hen,  hov.%  and  by  Avhat  means  may  this  intent  be  sustained?^  There 

^  For  example,  a  conveyance  made  by  a  defendant,  for  full  value,  lint  with 
intent  to  defraud  tlie  plaintifi"  hy  placing  tlie  property  beyond  the  reach  of  an 
expected  judament:  Robinson  v.  Holt.  o9  X.  11.  ").")7 :  75  Am.  Dec.  233; 
Gragg  V.   :\lartin,   12   Allen   498,   90   Am.   Dec.    164. 

^Copis  V.  :Miildleton,  2  ]\Iadd.  410,  430,  2  Scott  738:  Taylor  v.  Jones.  2  Atk. 
GOO,   and    all    the    cases    arising   out   of   voluntary    conveyances,    are    authorities. 

^  If  they  are  impeachable  by  such  successors  as  assignees  in  bankruptcy, 
insolvency,  and  others  in  like  position,  it  is  because  such  persons  are  rep- 
resentatives of  creditors  more  than  of  the  parties  from  whom  they  immediately 
derive   title. 

'  At  an  early  day  the  intent  was  inferred  as  a  conchisive  presumption 
of  law  from  many  particular  circumstances:  as,  for  example,  from  the  fact 
tliat  the  vendor  retained  possession  of  the  property  conveyed.  Later,  the 
tendency  has  been  to  abandon  the  notion  of  conclusive  presimiptions,  and  to 
infer  the  intent  as  a  rehtittable  presumption  of  law  from  a  variety  of  circum- 
stances; and  this  doctrine  still  prevails  in  England  and  in  many  of  the  states, 
at  least  in  its  ai>])lication  to  so)ue  circumstances.  Finally,  in  consequence  of 
a  statutory  pii)\i-~i()n.  the  view  has  been  adopted   throrrticallj/  in  several  of  the 


529  const;; ucTivi;  j  kai d.  § 'JTl 

are  three  ueneral  modes  in  which  the  intent  mi^ht  possibly  be  as- 
certained. Certain  circumstances  appearing,  it  might  (1)  be  in- 
ferred therefrom  as  a  conchisive  presumption  of  law,  or  (2)  as  a 
prima  facie  or  rebuttable  presumption  of  law,  or  (3)  as  an  argu- 
mentative conclusion  of  fact.  With  respect  to  these  modes,  tiie 
intent  may  be  crprcss  or  arhtaJ,  which  simply  means  that  it  is  proved 
by  means  of  ordinary  evidence,  either  direct  or  circumstantial,  tend- 
ing to  show  its  existence,  or  it  may  be  iinplied  or  inferred  as  a  jjic- 
sumption  from  certain  circumstances  connected  with  or  forming  a 
part  of  the  transaction.-  In  relation  to  the  mode  of  ascertaining 
the  fraudulent  intent,  when,  how,  and  from  what  it  may  be  inferred, 
there  is  a  great  diversity  and  even  conflict  of  Judicial  opinion,  and 
to  some  extent  antagonistic  rules  are  settled  in  different  states.  Any 
attempt  to  reconcile  this  discrepancy  w^ould  be  unavailing.  I  j^hall 
mereh^  formulate  those  general  doctrines  whicli  are  sustained  by 
the  consent  of  the  highest  authority,  as  well  as  by  principle,  and 
which  constitute  a  part  of  the  equity  jurisprudence ;  and  it  Avill  be 
the  most  convenient  to  state  them  in  their  connection  with  and 
relations  to  the  most  important  classes  of  cases  wdiich  occur  in  the 
actual  transactions  of  men. 

§  971.  Mode  of  Ascertaining:  the  Intent. — In  the  first  place, 
where  a  conveyance  is  made  upon  a  valuable  consideration,  and  is 
alleged  to  be  fraudulent  against  the  grantor's  creditors,  an  actual 
and  express  intent  to  hinder,  delay,  or  defraud  is  necessary  to  be 
proved.  The  reason  for  this  is  obvious.  The  transa<'tion  has  one 
Ol  the  requisites  prescribed  by  the  statute;  the  voluntary  character 
is  wanting  from  which  an  inference  of  fraudulent  intent  i)ii(/ht  arise. 
On  the  contrary,  the  other  re(|uisite^=— the  good  faith — would  rather 
be  presumecl.  It  is  necessary,  therefore,  to  overcome  this  presump- 
tion by  proving  the  absence  of  good  faith.  In  other  words,  the 
actual  and  express  fraudulent  intent  nuist  be  proved  by  evidence 
tending  to  shoAV  its  existence,  and  fi'om  which  it  legitimately  results 
as  a  conclusion  of  fact  drawn  by  a  court  or  jury  without  the  aid 

states  that  the  intent  must  always  be  inferred  as  an  arfiunicntaliNe  conclusion 
of  fact,  without  the  aid  of  any  lejj;al  presumptions.  1  describe  this  view  as 
prevailing  theoretically,  because  it  will  be  found  that  the  eourls  of  those  states, 
in  the  decision  of  cases,  do  practically  have  recourse  to  prima  facie  presump- 
tions  in   determinino'   the  existence    of   the    fraudulent    intent. 

-  .\niont;'  these  circumstances,  the  most  common  and  impoitant  are  the  in- 
.solvency  of  tlie  lirantor,  or  the  extent  of  his  indebtedness  compared  with  tli(> 
amount  of  his  pi-operty.  especlMJly  wheie  tlie  conveyance  is  volunlarv.  and 
the  fact  that  the  grantor  or  viinlor  retains  possession  of  the  property  con- 
veyed or  .sold.  This  last  circunist;iiiee  applies  equally  where  the  conveyance 
is  voluntary  or  upon  a  valuulile  consideration.  Tt  seems  impossible  to  decide 
all  cases  arising  under  the  s(:iinte  without  having  recourse,  practically  if 
not  avowedly,  to  the  doctrine  of  legal  presumptions. 
34  " 


§  971  EC^UITY    JUi;J.Si'KLDE>;CK.  530 

of  any  legal  presumptions.  In  the  second  place,  where  a  convey- 
auce  is  voluntary,  and  is  alleged  to  be  fraudulent  as  against  existing 
01  editors,  while  an  express  actual  intent  to  defraud  may  be  present, 
it  is  not  necessary.  The  fraudulent  intent  which  will  avoiil  the  con- 
veyance as  against  existing  creditors  may  be  inferred  from  circum- 
stances connected  with  the  transaction,  such  as  the  grantor's  in- 
solvency, great  indebtedness  compared  with  the  amount  of  his 
property,  and  the  like ;  complete  insolvency,  however,  is  clearly 
not  a  rcquisifc.  In  this  case  of  a  voluntary  deed  and  existing  credit- 
ors, the  decisions  show  unmistakably  that  the  intent  is  more  easily 
inferred  than  in  any  other.^  In  the  third  place,  where  a  conveyance 
is  voluntary,  and  is  alleged  to  be  fraudulent  as  against  suhsequent 
creditors,  the  intent  to  defeat  or  defraud  is  not  so  easily  inferred 
as  in  the  case  of  existing  creditors;  stronger  evidence  is  then  re- 
([iiired  to  establish  the  intent.  ''If  a  voluntary  conveyance  or  deed 
of  gift  be  impeached  by  subsequent  creditors  whose  debts  had  not 
been  contracted  at  its  date,  then  it  is  necessary  to  show  either  that 
the  grantor  made  the  conveyance  with  express  intent  to  delay, 
hinder,  or  defraud  creditors,  or  that  after  the  conveyance  the 
grantor  had  no  sufficient  means  or  reasonable  expectation  of  being 
able  to  pay  his  then  existing  debts, — that  is  to  say,  was  reduced  to 
a  state  of  insolvency, — in  which  ease  the  law  infers  that  the  con- 
veyance was  made  with  intent  to  delay,  hinder,  or  defraud  credit- 
ors, and  is  therefore  fraudulent  and  void."^  This  proposition  is 
clearly  correct,  but  it  contains  one  apparent  limitation  which  hard- 
ly seems  to  be  sustained  by  the  weight  of  American  authority:  it 
is  not  essential  that  the  voluntary  grantor  should  be  "reduced  to  a 
state  of  insolvency,"  or  in  other  words,  that  he  should  be  left 
absolutely  unable  to  pay  his  then  existing  debts.  The  following 
seems  to  be  the  true  rule :  If  the  amount  of  propert}^  after  the 
voluntary  conveyance  was  so  small  in  comparison  with  the  exist- 
ing indebtedness  that  the  grantor  could  not  reasonably  have  con- 
templated his  ability  to  perform  his  obligations,  or  in  other  words, 
he  could  reasonably  have  contemplated  his  inability  to  perform 
them,  then  an  intent  to  defeat  his  creditors  generally  will  be  in- 
ferred, and  the  conveyance  will  be  fraudulent  against  subsequent 
.is  well  as  against  existing  creditors."    Having  thus  ascertained  the 

»Spirett  V.  Willows,  3  De  C4ex,  J,  &  S.  293,  302;  Freeman  v.  Pope,  L.  K. 
.5  Ch.  538,  543,  544;  Skarf  v.  Soulby,  1  Macn.  &  G.  364,  374.     See  post.  S  972. 

=  Spirett  V.  Willows,  3  De  Gex.  J.  &  S.  293.  302,  303;  Kent  v.  Riley,  L.  11. 
14  Eq.  190,  194;  Carr  v.  Breese.  81  N.  Y.  584.  5SS.  590,  591.  See  pos;t.  §  973 
and   notes. 

"Can-  V.  Breese,  81  N.  Y.  584.  588.  590;  Van  Wyck  v.  Seward,  G  Paige  62; 
Dunlap  V.  Hawkins,  59  X.  Y.  342.   See  post,   §   973. 


531  COXSTi;LCTiVK    FUAUD.  §  9T3 

general  rules  concerning  the  manner  of  establishing  or  inferring 
the  fraudulent  intent,  I  shall  apply  these  rules  very  briefly  to  the 
two  classes  of  creditors,  existing  and  subsequent. 

§  972.  Existing  Creditors. — Conveyances  made  upon  a  valuable 
consideration  are  not  presumed  to  be  fraudulent  against  existing 
creditors,  and  the  extent  of  the  grantor's  indebtedness  is  wholly 
inimaterial.^  Conveyances  upon  a  valuable  and  even  full  considera- 
tion are  void  against  existing  and  subsequent  creditors,  if  made 
with  an  actual  express  intent  to  hinder,  delay,  or  defraud  them ; 
but  the  intent  cannot  be  inferred  by  presumptions,  and  must  be 
proved  by  evidence  legitimately  tending  to  show  its  existence.  Each 
case  must  necessarily  depend  upon  its  own  circumstances.^  A 
voluntary  conveyance,  gift,  or  transfer,  without  any  valuable  con- 
sideration, creates  a  prima  laeie  presumption  of  an  intent  to  de- 
fraud existing  creditors,  unless  statutes  have  declared  that  no  such 
presumption  ever  arises,  and  that  the  intent  is  always  a  conclusion 
of  fact.  This  presumpt'ion  may  be  overcome.  The  mere  fact  that 
a  grantor  is  indebted  at  the  time  he  makes  a  voluntary  conveyance 
does  not  necessarily  render  such  conveyance  fraudulent  against  the 
existing  creditors."  On  the  other  hand,  since  the  prima  facie  pre- 
sumption arises  in  such  case,  it  is  never  necessary  to  show  by  affirm- 
ative evidence  an  actual  express  intent  to  defraud,  in  order  to 
render  a  voluntary  conveyance  fraudulent  and  void  as  against  exist- 
ing creditors.  The  intent  wall  be  inferred  when  the  grantor  was 
01'  is  left  insolvent,  or  if  the  conveyance  deprives  him  of  the  means 
of  pa3'ing  his  debts,  or  if  he  was  so  largely  indebted  that  it  would 
be  reasonable  to  suppose  that  he  contemplated  his  inability  to  pay 
his  del)ts,  or,  as  many  cases  hold,  if  he  was  so  largely  indebted  that 
the  conveyance  would  materially  interfere  with  his  ability  to  meet 
h's  obligations.'* 

§  973.  Subsequent  Creditors. — Where  a  person,  w^hether  indebt- 
ed or  not,  makes  a  conveyance,  either  upon  a  valuable  consideration 
or  voluntary,  with  the  express  and  actual  intent  of  defrauduig 
future  creditors,  it  is,  of  course,  fraudulent  and  void  as  against 
such  future  creaitors.  For  this  reason,  if  a  person,  in  contempla- 
tion of  a  future  indebtedness  which  he  expects  to  accrue,  makes  a 
C(;nveyance  for  the  purpose  of  placing  his  i:)roperty  beyond  the  lia- 
bility for  such  anticipated  indebtedness,  the  transfer  is  frnudulent 
as  against  the  future  creditor  when  his  claim  arises.^    A  voluntary 

iRevan  v.   Crawford,  L.   E.   6   Ch.   Div.   29. 

-BUinier  v.  Hunter,  L.   R.   8   Kq.  46.     See  ante,   §   969. 

"Dnnlap  v.  Hawkins.   r)9   N.   Y.   342;   Sexton  v.   Wheaton,   8   Wheat.   229. 

"Smith  V.  Chenill.  T,.  R.  4  Eq.  390,  39.5;  French  v.  Freneh.  (I  He  Gex,  M. 
&   G.  95;   Crawford  v.  Kirksey.   55   Ala.   282.  28   Am.   Rep.   704. 

*  Carpenter  v.  Carpenter,  25  X,  J.  Eq.    194. 


§  973  EQUITY    JURlj^l'KL'DENCE.  533 

conveyance  by  one  who  is  at  the  time  free  from  debt  is  not  pre- 
sumptively fraudulent  and  void  as  against  subsequent  creditors; 
there  being  no  prima  facie  presumption  against  its  validity,  the 
burden  of  proof  rests  upon  the  subsequent  creditor  who  impeaches 
it,  of  showing  either  an  actual  fraudulent  intent,  or  circumstances 
from  which  such  intent  may  be  inferred."  If  a  person,  not  at  the 
time  indebted,  being  about  to  engage  in  a  new  and  hazardous  busi- 
ness, makes  a  voluntary  settlement  or  conveyance,  whereby  he 
places  his  property  or  a  considerable  portion  of  it  beyond  the  reach 
of  his  creditors,  such  settlement  or  conversance  is  fraudulent  and 
void  as  against  the  subsequent  creditors  of  the  grantor."  Finally, 
it  may  be  laid  down  as  a  doctrine  generally  accepted,  that  if  a 
person,  being  at  the  time  indebted,  makes  a  voluntary  conveyance 
of  his  property  to  such  an  extent  that  he  is  left  actually  insolvent, 
or  wholly  unable  to  pay  his  existing  debts,  or  that  it  is  reasonable 
to  suppose  he  contemplated  his  consequent  inability  to  pay,  or 
even  that  it  is  reasonably  doubtful  whether  he  is  able  to  meet  his 
obligations,  then  the  conveyance  will  be  fraudulent  and  void  as 
against  his  subse<iuent  as  well  as  his  existing  creditors.  The  in- 
ference of  a  fraudulent  intent  must  always  depend  upon  there  be- 
ing an  amount  of  property  remaining  after  the  voluntary  convey- 
ance, reasonably  sufficient  to  defra}^  all  of  the  grantor's  existing 
liabilities;  and  each  case  must  therefore  stand  upon  its  own  parti- 
cular circumstances.*  As  a  direct  result  from  this  doctrine,  the 
I'ule  has  been  well  established  that  a  post-nuptial  settlement  upon  a 
wife  or  children,  even  when  the  settlor  is  entirely  free  from  debt, 
must  be  reasonable  in  its  amount  and  not  disproportioned  to  his 
v.hole  property.  If  the  settlement  is,  as  originally  it  must  have 
licen.  in  the  form  of  property  conveyed  to  trustees  for  the  Avife's 
sei)arate  use,  courts  of  equity  will  not  aid  her  in  enforcing  it  when 

-  Carhart  v.   Havsliaw,   4.")   Wis.   .340.   30  Am.   Rep.    7-52. 

':\rackay  v.  Douglas,  L.  R.  14  Eq.  100,  118-121;  :\Iullen  v.  Wilson,  44  Pa. 
St.   41.3,    84   Am.   Dec.   4(il. 

^  Spirett  V.  Willows.  3  De  Gex,  .J.  &  S.  293;  Duiilap  v.  Hawkins,  5!1  X.  Y. 
:i42;  Rudy  v.  Austin,  .iO  Avk.  73.  35  Am.  St.  Rep.  So,  19  S.  W.  111. 
if  an  express  actual  intent  to  hinder  or  defraud  creditors  generally  is 
>lio\vn.  subsequent  as  well  as  existing  creditors  are  entitled  to  impeach  the 
conveyance:      Cramer    v.   Reford.    17    X.    .1.    Eq.    3(j7.   90   Am.    Dec.    .594. 

On  tlie  other  hand,  if  there  is  no  actual  intent  to  defraud,  the  mere  fact 
that  a  voluntary  conveyance  may  be  presumptively  fraudulent  against  exist- 
ing creditors  does  not  render  it  fraudulent  as  against  subsequent  creditors. 
While  a  prima  facie  presumption  against  the  validity  of  the  voluntary  deed 
may  arise  in  favor  of  the  grantor's  existing  creditors,  no  such  presumption 
exists  on  behalf  of  his  subsequent  creditors.  These  latter  cannot  impeach 
s\ich  a  transfer  merely  because  the  former  can:  Xicholas  v.  Ward,  1  Head 
323.   73   Am.   Dec.    177. 


5 JO  COXSTHUCTlVi:    FRAUD.  §  914 

liiireasonably  larg-e.  If  tlie  leyal  title  is  conveyed  directly  to  her. 
there  is  still  dang'er  lest  the  husband  should  obtain  credit  upon  his 
apparent  or  sup|)ose(.l  ownership.'' 

^  974.  Conveyances  in  Fraud  of  Subsequent  Purchasers. — By  the 
statute  27  Eli/...  c.  4,  made  perpetual  by  39  Eliz.,  c.  18,  sec.  31,  all 
conveyances  of  hereditaments  for  the  intent  and  purpose  to  deceive 
piu'chasers  are  made  void  as  against  them;  and  the  same  provisions 
have  been  substantially  enacted  in  the  United  States.  The  true 
meaning  and  interpretation  of  this  statute  were  for  a  considerable 
period  of  time  unsettled  by  the  English  courts.  The  doubt  was. 
v;hether  it  extended  to  all  voluntary  conveyances,  or  whether  it 
avoided  only  those  which  are  made  with  a  fraudulent  intent,  and 
therefore  furnished  protection  only  to  subsecpient  bona  fide  i)ur- 
chasers  without  notice.  The  rule  was  finally  settled,  and  still  ])re- 
vails  in  England,  that  the  statute  applies  to  and  avoids  all  volun- 
tary conveyances  as  against  subsequent  purchasers  for  a  valuable 
consideration,  even  though  such  conveyances  were  made  in  good 
faith  without  any  actual  fraudulent  intent,  and  though  the  sub- 
sequent purchasers  for  value  had  notice  thereof.^  The  same  inter- 
pretation of  the  statute  and  the  same  general  doctrine  have  been 
accepted  by  a  portion  of  the  American  decisions.'  The  current  of 
American  authority,  however,  is  opposed  to  this  broad  construction, 
arid  limits  the  operation  of  the  statute  to  prior  voluntary  convey- 
ances made  with  a  fraudulent  intent,  and  its  protection  to  subse- 
quent purchasers  for  a  valuable  consideration  and  without  notice. 
The  doctrine  which  may  properly  be  called  American  is  as  follows: 
Conveyances  are  not  void  under  the  statute  merely  because  they 
are  voluntary,  but  because  they  are  fraudulent,  and  the  fi-audulent 
intent  may  be  inferred  in  the  same  manner  and  under  the  same 
cii'cumstanees  as  against  subsequent  creditors.  A  voluntary  gift  of 
pjoperty  is  valid  as  against  subsequent  purchasers  and  all  other 
persons,  unless  it  w'as  fraudulent  when  executed ;  and  a  subsequent 
conveyance  for  value  is  evidence  of  fraud  committed  in  the  former 
voluntar}^  conveyance,  but  not  conclusive  evidence.  It  results  that 
a  voluntary  gift  made  Avhen  the  gi-antor  is  not  indebted,  in  good 
faith,  and  without  intent  to  defraud  subsequent  creditors  or  pur- 
chasers, is  valid  as  against  a  subsequent  purchaser  for  a  valuable 


*Carr  v.  Breese,  81   X.  Y.   584.  TjOI. 

*  The  English  theory  is,  that  the  statute  conclusively  presumes  a  fraudulent 
intent  when  the  prior  conveyance  is  voluntary:  Pulvertoft  v.  Pulvcrtoft,  IS 
Ves.  84,  86;  Bayspoole  v.  Collins.  L.  11.  (i  Ch.  228.  232.  The  subsequent  pur- 
chaser must  be  one  for  a  real  valuable  consideration,  and  bona  fide,  althougli 
notice  does  not  destroy  his  rights  under  the  statute. 

-Sterry  v.  Arden,  1  Johns.  Ch.  261,  270,  12  Johns.  536,   1  Scott  502. 


§  974  EQUITY    JUKISl'HrDKXCE.       '  534 

consideration  with  notice.''  What  constitutes  a  purchase  for  value 
without  notice,  and  what  is  a  valuable  consideration,  in  c;ises  aris- 
ing under  this  statute,  are  determined  by  the  rules  contained  in  the 
preceding  section  upon  that  subject.  In  order  that  the  statute  may 
apph^  and  uphold  a  subsequent  conveyance  for  value  against  a 
prior  voluntarj^  conveyance,  it  is  necessary  that  both  the  convey- 
ances should  come  from  the  same  grantor.  An  heir  or  devisee  can- 
not, therefore,  by  a  conveyance  for  value,  defeat  a  voluntary  settle- 
ment made  by  his  ancestor  or  testator.*  What  creditors,  purchasers, 
and  their  representatives  are  entitled  to  equitable  relief,  and  what 
remedies  may  be  obtained  by  them,  are  questions  which  belong  to 
subsequent  chapters  treating  of  remedies. 

"Beal   V.   Warren,   2   Gray  447;    Chaffin   v.   Kimball,   23   111.   33. 
"Parker  v.   Carter,  4  Hare  400,  40<J;   Sterry  v.  Arden,   1  Johns.  Cli.  261,  I 
Scott   J02. 


PART  THIRD. 

THE  EQUITABLE  ESTATES,  INTERESTS,  AND  PHIMAKY 
RIGHTS  RECOGNIZED  AND  PROTECTED  BY  THE  EQUITY 
JURISPRUDENCE. 


PRELIMINARY  PARAGRAPH. 

§  975.  The  general  nature  of  equitable  estates  and  interests,  as 
distinguished  on  the  one  side  from  legal  estates,  and  on  the  other 
from  mere  equitable  remedial  rights  or  ''equities,"  has  been  suffi- 
ciently described.^  In  contemplation  of  courts  of  equity,  equitable 
estates,  according  to  their  various  degrees,  are  as  truly  property 
or  ownership  as  legal  estates  are  property  in  contemplation  of 
courts  of  law.  In  fact,  the  entire  dealing  of  equity  with  the  subject 
of  equitable  estates,  and  the  fundamental  distinctions  between 
equitable  and  legal  conceptions  and  modes,  are  based  upon  the  t 
notion  that  equitable  estates  are  in  the  truest  sense  property,  and  v 
not  mere  rights  of  action, — not  mere  rights  to  obtain  certain  equit-  \ 
able  remedies.  Even  when  the  equitable  estate  is  the  result  of  some 
positive  wrongdoing,  when  the  legal  estate  has  been  vested  in  a 
third  person  by  fraud,  undue  intiuence,  breach  of  fiduciary  duty, 
and  the  like,  so  that  the  original  owner  can  only  regain  the  title 
by  means  of  a  cancellation,  he  is  nevertheless,  in  contemplation  of 
equity,  the  equitable  and  true  owner;  his  equitable  estate  in  the 
subject-matter  is  a  true  property,  capable  of  being  devised  and 
otherwise  dealt  with.-  In  short,  the  equitable  estate  is  often  re- 
garded by  a  court  of  equity  as  the  real,  beneficial,  substantial  own- 
ership, while  the  corresponding  legal  estate  is  a  mere  form  and 
shadow 

*See  §§    146-149. 

=  Stump  V.   Gaby,  2  De  Gex,  M.  &  G.   623,  630;   Gresley   v.   Mousley,   4  Pe 
Gex  &  J.  78,  90,  92,  93. 


[535] 


^[)76  EQUITY    JLUIbrilLUEXCE.  b'M' 


CHAPTER  I 

TRUSTS. 


SECTION  I. 
ORIGIN  OF  USES  AND  TRUSTS. 

ANALYSIS. 

§  976.  The  testament   in  the   Roman  law. 

§  077.  Fidci-conimissa    in   the   Roman   law. 

S  978.  Origin  of  vises. 

§  979.  The  use  at   law. 

§  980.  The   use  in  equitr. 

S  981.  Resulting   uses;    equitable   theory   of   consideration. 

§  982.  Double   nature   of   property  in   land,   the   use   and   the  seisin. 

S  9S:j.  The    "statute   of   uses." 

§  984.  Kinds   of   uses   not   embraced   witliin    tlie    statute. 

§  985.  A   use   upon    a    u<e   not    executed   by    the   statute. 

§  9Sfl.  Trusts  after  the  statute;   effect  of  the  statute  in  the  American  states. 

^  976,  The  Roman  Law  Testament. — To  explain  the  nature  and 
extent  of  the  equitable  .iurisdietion  and  jurisprudence  with  respect 
to  trusts,  some  historical  account  of  trusts  themselves,  of  their  in- 
troduction into  the  law  of  Eno-land  under  the  name  of  "uses,"  and 
of  the  enormous  changes  which  they  made  in  the  primitive  concep- 
tions of  property  in  land,  is  necessary.  The  elementary  notion  of 
trusts,  like  so  many  other  doctrines  of  equity,  was  borrowed  from 
the  Roman  law.  The  Roman  testament  was  quite  unlike  the  last 
will  of  our  own  law.  Its  essential  feature  consisted  in  the  naming 
or  appointing  some  person  or  persons  as  heir,  upon  whom  the  en- 
tire inheritance  of  the  testator  devolved.  This  inheritance  included 
not  only  the  property  of  the  deceased,  but  also  his  liabilities.  The 
heir  thus  became  the  "universal  successor"  to  the  testator,  ac- 
quiring title  to  all  his  assets,  and  becoming  liable  for  all  his  debts. 
The  fundamental  conception  Avas,  that  the  legal  condition  of  the 
deceased,  consisting  both  of  rights  and  liabilities,  was  prolonged 
and  imposed  upon  the  heir;  that  death  made  no  real  break  in  the 
continuity  of  the  testator's  legal  personality.  Partly  from  rules 
of  the  ancient  law,  and  partly  from  prohibitory  statutes,  the  Roman 
citizen  was  much  restricted  with  respect  to  the  persons  whom  he 


537  ORIGIN    OF    t  .SKS    AND   TRUSTS.  S  977 

might  appoint  as  his  testamentary  heir.  He  could  not  give  his  in- 
heritance to  an  alien  or  peregrinus  (i.  e.,  one  not  strictly  a  citizen), 
nor  to  a  person  prescribed,  nor  to  a  posthumous  child  not  belong- 
ing to  his  own  family,  nor,  with  certain  exceptions,  to  a  woman. ^ 
To  evade  these  restrictions,  the  method  was  contrived,  during  the 
latter  period  of  the  republic,  of  appointing  a  qualified  person  as 
heir,  upon  wlfom  the  inheritance  would  devolve  according  to  legal 
rules,  and  of  accompanying  the  appointment  by  a  direction  or  re- 
quest that  this  heir  would,  as  soon  as  he  obtained  the  inheritance, 
transfer  it  to  another  specified  person  who  was  the  real  object  of 
the  testator's  bounty,  and  who,  although  prohibited  from  be- 
ing made  heir,  was  not  prohibited  from  receiving  a  trans- 
fer of  property  from  a  living  person  by  way  of  gift.  At  first,  the 
fulfillment  of  the  testator's  direction  was  left  wholly  to  the  heir's 
sense  of  honor,  but  in  process  of  time  the  claim  of  the  beneficiary 
was  recognized  and  enforced  by  a  magistrate.^ 

§  977.  Fidei-commissa. — The  inheritance  thus  given  to  the  ap- 
pointed heir,  in  trust  for  another  person,  was  termed  fidei-com- 
missum, the  heir  or  trustee  the  fidueiarius,  and  the  benefi.ciary  the 
fidei-commissarius.  As  the  heir  trustee,  although  he  might  surrender 
the  whole  estate  to  the  beneficiary,  would  still  remain  legally  liable 
for  all  the  debts  of  the  deceased,  since  a  transfer  of  the  inherit- 
ance inter  vivos  would  not  transfer  the  liabilities,  he  was  accustom- 
ed to  take  from  the  beneficiary  a  contract  of  indemnity.  To  obviate 
the  necessity  of  such  a  contract,  ''during  the  reign  of  Nero  (A.  D. 
62)  a  statute  known  as  the  senatus  eonsultum  Trebellianum  pro- 
vided that  all  actions  which  might  by  law  be  brought  by  or  against 
the  heir  [trustee]  should  be  permitted  for  or  against  the  beneficiary. 
After  this  the  praetor  began  to  give  equitable  actions  for  or  against 
the  beneficiary  as  if  he  were  the  lieir."^  By  this  legislation,  the 
equitable  estate  of  the  beneficiary  was  fully  established  and  ])r()- 
tected.  Although  it  is  plain  that  the  conception  of  a  "use'"  was 
borrowed  from  this  fidei-commissum  of  the  Roman  law,  and  that 
the  English  chancellor  followed  in  the  footsteps  of  the  Roman 
magistrate,  yet  beyond  this  mere  elementary  notion  or  suggestion 
there  is  little  resemblance  between  the  two  species  of  ownership. 
Their  essential  differences  are  as  marked  as  their  superficial  similar- 
ity; and  it  is  a  grave  error  to  represent  the  entire  equity  .inrisprnd- 
ence  concerning  uses  and  trusts  as  derived  from  the  Roman  Law. 

'Concerning  the  Roman  testament,  see  Just.  Inst.,  b.  2,  tit.  10,  sees.  1-14; 
tit.   1.*?.  sees.   1-7;   tit.   14,  sees.   1-6;   Sandai's  Trans.,  pp.  24.5-280. 

Musi.  Jnst..  b.  2.  tit.  2:?,  sec.  1;  Sandar's  Trans.,  pp.  337,  338;  Gaius's 
Inst.,   b.    2,   sees.    24(;-2r><). 

Must.   Inst.,  b.   2,  tit.   2.3,   sec.  4. 


§  97i)  EQUITY    JUKISi'RUDEXCE.  538 

§  978.  Origin  of  Uses. — Uses,  in  the  ordinary  meaninf?  of  the 
term,  as  designating-  those  which  are  passive,  seem  to  have  been 
invented  dnring  the  latter  part  of  the  reign  of  Edward  ITI.^  Like 
the  Roman  fidei-commissa,  they  were  designed  to  evade  the  law; 
but,  unlike  them,  they  were  resorted  to  at  first  for  mere  purposes 
of  fraud, — by  the  elergy  to  defraud  the  statutes  of  mortmain,  and 
by  the  laity  to  defraud  creditors  or  feudal  superioi*s.  Being  free 
from  many  heavy  feudal  burdens,  uses  grew  rapidly  into  favor,  and 
it  is  said  that  during  the  reign  of  ITenry  V.  the  greater  part  of  tlie 
land  in  England  was  held  in  this  manner.-  At  the  very  outset  these 
conveyances  to  use  were  made  for  the  benefit  of  third  persons. 
Tills  mode  having  been  established,  conveyances  were  made  for  the 
benefit  of  the  original  owner,  the  feoffor.  Thus  A,  being  seised  in 
fee,  would  convey  the  land  by  a  legal  feoffment  to  B  to  the  use  of 
himself,  A.  In  this  manner  the  ovcner  in  fee  would  convert  his 
legal  estate,  which  was  subject  to  all  the  feudal  burdens  and  com- 
mon-law liabilities,  into  an  e(|uitable  estate  unknown  to  the  com- 
mon law,  which  was  freed  from  these  burdens  and  restrictions, 
which  could  be  devised  by  will  and  aliened  without  livery  of  seisin, 
and  which,  under  the  doctrines  subsequently  established  by  the 
court  of  chancery,  gave  him  all  the  dominion,  possession,  rights, 
and  ])owers  belonginy-  to  the  legal  estate." 

§  979.  The  Use  at  Law. — For  a  while  the  cestui  que  use  had  no 
means  of  redress  in  any  court.  The  law  courts,  as  a  necessary  con- 
sequence of  connnon-law  doctrines,  recognized  no  other  estate  than 
the  legal  one  vested  in  the  feoft'ee.  If  the  cestui  que  use  had  any 
legal  right  at  all,  it  was  neither  a  jus  ad  rem  nor  a  jus  in  re,  and 
so  there  was  no  common-law  form  of  real  action  by  which  he  could 
recover  possession  of  or  enforce  any  claim  upon  the  land  itself.  His 
only  possible  remedy  would  be  an  action  for  damages,  upon  contract 
express  or  implied,  against  the  feoft'ee  for  the  latter 's  violation  of 
the  trust.^  Even  this  action  was  not  generally  maintainable  upon 
common-law  principles,  since  there  was  no  pririti/  between  the  feof- 

^  1  Spence's  Eq.  Jiu'.  439-442. 

=  1    Spence's    Eq.    Jur.    4:59-442,   442-444. 

'  1   Spence's  Eq.   Jur.   439-444,  447-449. 

*  All  the  common-law  actions  for  the  recovery  of  land,  or  for  the  main- 
tenance of  any  interest  therein,  Avere  based  upon  the  assumption  that  the 
plaintiff'  either  had  some  property  absolute  or  qiuilified  in  the  land  (jus  ad 
rem),  or  that  he  had  a  ripjht  to  some  particular  use  of  land  belonging  to  an- 
other.— an  easement  or  servitude  (jus  in  re).  As  the  interest  of  the  cestui 
que  use  was  neither  of  these,  he  could  enforce  it  by  none  of  the  common-law 
real  actions,  and  was  therefore  shut  up  to  actions  ex  contractu  for  damages; 
but,  as  I  show,  even  such  a  personal  action  could  only  be  maintained  by  him 
under  one  special  state  of  facts. 


539  OKKilX    01''    L'jjK.S    AND    TiiL"ST8.  g  [)60 

fee  and  the  cestui  que  use  when  the  latter  was  a  third  person; 
whatever  promise  the  feofi'ee  had  made,  whatever  legal  obligation 
he  had  incurred,  was  to  the  feoffor,  and  not  to  the  cei^tui  (jue  ase.- 
It  was  formally  decided  in  the  fourth  year  of  Edward  IV.  that  the 
cc.'iumon-law  courts  had   no  jurisdiction  over  the  use." 

§^80.  The  Use  in  Equity. — There  being  no  common-law  actions 
to  which  resort  could  be  had,  the  rights  of  the  cestui  (pie  use  were 
for  a  considerable  time  purely  moral,  and  were  protected  only 
through  the  authority  of  the  clergy,  acting  as  confessors,  upon  the 
conscience  of  those  who  held  the  legal  title  of  land  for  the  use  of 
others.^  No  traces  of  applications  to  the  court  of  chancery  have 
been  found  in  the  early  records  prior  to  Henry  V.,  but  during  his 
reign  the  court  began  to  entertain  such  suits  and  to  decree  relief. 
In  the  reigns  of  Henry  VI.  and  of  Edward  IV.  the  chancery 
jurisdiction  was  fully  established,  and  was  also  recognized  by 
the  courts  of  law.  In  other  words,  the  law  courts,  while  refusing 
themselves  to  protect  the  estates  of  cestui  que  usent,  admitted  the 
fact  that  such  estates  existed  and  were  protected  by  the  court  of 
chancery.-  The  passive  or  permanent  use  as  established  in  equity 
is  thus  described  by  Bacon  when  it  is  created  in  favor  of  the 
feoffor  himself,  and  the  description  would  apply  to  the  case  where 
it  is  created  for  the  benefit  of  a  third  person  by  a  slight  change 
of  language.  He  says:  "The  use  consisted  of  three  parts:  1.  That 
the  feoffee  (trustee)  would  suffer  the  feoffor  (cestui  que  use)  to 
receive  the  profits;  2.  That  the  feoffee,  upon  request  of  the  feoffor 
(cestui  que  use),  would  execute  (i.  e.,  convey)  the  estates  to  the 
feoffor  (cestui  que  use),  or  his  heirs,  or  to  any  other  by  his  direc- 
tions; 3.  That  if  the  feoffee  were  disseised,  and  so  the  feoffor 
(cestui  que  use)  disturbed,  the  feoffee  would  re-enter  or  bring  an 
action  to  recover  the  possession."^ 


*  There  are  in  the  early  records  some  traces  of  sucli  actions  brought  in 
the  common-law  courts;  but  I  presume  it  will  be  found  that  they  are  all  con- 
fined to  cases  where  the  use  was  declared  for  the  benefit  of  the  feoffor  him- 
self, where  A  conveyed  to  B  to  the  use  of  A.  In  such  a  case  alone  would 
there  be  any  legal  liability  of  the  feotl'ee  to  the  cestui  que  use.  Whenever 
A,  upon  a  consideration  niovin":  from  B,  promises  B  to  do  something  for  the 
benefit  of  C,  the  English  courts  have  uniformly  maintained  the  rule  that  C 
can  have  no  action  on  the  contract  against  A,  because  there  is  no  privity 
between  them.  The  modern  rule  has  been  settled  otherwise  in  most  of  the 
American    states. 

'  1    Spence's    Eq.   Jnr.   445,   446. 

'  This  authority  would  be  especially  exerted  where  lands  were  conveyed  to 
the  use  of  religious  corporations  or  persons. 

*  1  Spence's  Kq.  -Tur.  44.5,  440. 
'Bacon's  Reading  on  Uses,  9. 


§  981  EQUITY    JURlSriU'DEXCE.  540 

,^  981.     Resulting    Uses — Equitable    Theory    of    Consideration. — 

In  addition  to  these  express  uses  created  by  the  intentional  words 
of  parties,  courts  of  e(iuity  soon  invented  another  class,  consisting 
of  several  different  species,  but  all  depending  upon  the  same  fun- 
damental principle,  and  to  w^hieh  the  names  "implied,"  "result- 
ing," and  "constructive"  have  been  given.  The  underlying  prin- 
ciple upon  which  all  these  species  were  based  is  the  equitable 
doctrine  concerning  consideration.  This  theory  of  consideration, 
adopted  and  promulgated  by  the  chancellors,  is  one  of  the  most 
just,  most  productive,  and  most  beneficial  conceptions  of  equity 
jurisprudence.  It  accomplished  more,  perhaps,  than  any  other 
single  doctrine  in  overthrowing  the  arbitrary  dogmas  of  the  com- 
mon law  concerning  real  property,  and  in  building  up  the  dis- 
tinctive system  of  equitable  estates  and  ownership.  It  is  certainly 
very  remarkable  that  the  early  chancellors,  in  the  very  infancy 
of  equity  jurisprudence,  should  fornuilate  a  i^rinciple  so  admir- 
ably comprehensive  and  wise,  that  it  has  been  sufficient,  in  its 
subsequent  development,  to  meet  all  the  Avants  of  an  advancing 
civilization,  and  all  the  requirements  of  modern  society.  The 
common-law  notions  of  title  and  ownership  rested  mainly  upon 
the  observance  of  external  forms.  Equity  first  introduced  the 
principle  that  in  all  the  transactions  of  men  concerning  land — ■ 
their  transfers  and  bargains — the  consideration  is  the  essential" 
fact  which  determines  the  real  beneficial  ownership,  wherever  the 
legal  title  may  be  vested.  The  consideration  draws  to  it  the 
e(iuitable  right  of  property ;  the  person  from  whom  the  considera- 
tion actually  comes,  under  wdiatever  form  or  appearance,,  is  the 
true  and  beneficial  owner.  This  grand  principle  extends  not  only 
to  dealings  which  are  intentional  and  riglitful,  but  to  those  which 
are  fraudulent,  or  in  any  manner  wrongful  or  unconscientious. 
When  once  introduced,  it  was  easily  carried  through  all  those 
branches  of  equity  jurisjnnulence  which  relate  to  property,  real 
or  personal,  and  it  underlies  all  the  modern  doctrines  of  resulting 
and  constructive  trusts,  and  all  the  remedies  by  which  the  beneficial 
owner  is  enabled  to  follow  his  equitable  property  in  the  hands  of 
third  persons.  In  its  origin,  the  principle  was  applied  to  va]iial)le 
or  pecuniary  consideration,  but  it  was  soon  extended,  with  all  of 
its  legitimate  results,  to  the  good  consideration  of  blood  or  love 
and    affection   between  near  relatives  of  the   same   family.^     The 

'  It  thus  appears  that  the  special  rules  wliich  regulate  resultino;  trusts 
from  the  payment  of  tlie  purchase  price  between  parent  and  child,  etc.  are 
not,  as  they  liave  been  refjarded  by  some  writers.  exce])tions  to  the  irencrar 
doctrine;  they  are  the  necessary  consequences  of  the  one  universal  principle 
■which   regards  valual)le  consideration  between  strangers,  and  good  consideration 


541  Or.lGlN    OK    I'SKS    AM)    TKIHTS.  §  081 

tlieory   as   to    consideratioii    ()i)erate(l    in   the    development    of   uses 
in      the     foUowinii'     manner:      Prior     to      the     statute     of     uses 
in  tlie   rei.un  of   Henry   VIII. ,  a  gift  of  land  to  a   person  and  hi.s 
heirs  accompanied  by  livery  of  seisin — that  is,  a  transfer  by  fecjtf- 
ment — was  effectual  in  lair  to  convey  the  entire  estate  without  any 
consideration.      The    law    did    not    require    a    consideration,    and 
moreover,  if  a  deed  gr  charter  of  feoffment  was  delivered,  its  seal 
raised  a  conclusive  presumption  of  a  consideration.-     Equity  broke 
through   this   doctrine   by  means   of  its  principle   concerning   con- 
sideration.    It  established  the  rule  that  if  a  conveyance  of  the  fee 
was  made  without  any  use  being  declared,  and  without  any  consid- 
ei-ation,  although  the  legal  title  passed  to  the  feoffee,  a  use  ipso 
facto   arose   and   resulted   in  favor  of  the   feoffor,   so   that,   having 
l)arted   with   the   legal   estate,   he    remained   clothed   with    all    the 
e(iuitable  interests,  rights,  and  authority  Avhich.  the  court  of  chan- 
ceiy  gave  to  the  cestui  que  use;  the  equitable  estate  in  fee  vested 
in  him."    This  rule,  however,  did  not  apply  to  conveyances  between 
l)arent  and  child,  and  other  near  family  relatives,  since  the  "good" 
consideration  of  blood  or  marriage  relationship  operated  between 
such  persons,  in  the  same  manner  as  valuable  consideration  between 
strangers,   to  transfer  the   whole   estate,   legal   and   equitable,   free 
from  any  resulting  use.'*     As  a  corollary  to  the  foregoing  rule,  it 
was  further  settled  that  whenever  an   owner  conveyed   land   to   a 
feott'ee  upon  some  particular  use  declared  in  favor  of  a  third  person, 
so  much  of  the  use  as  had  not  been  disposed  of  resulted  back  to 
himself.     In  other  words,  if  the  use  declared  in  favor  of  the  third 
person  did  not,  for  any  reason,  effual   in   extent  and   exhaust  the 
legal  estate  given  to  or  held  by  the  feoft'ee,  then  a  use  for  the  resi- 
due or  surplus  of  such  estate  resulted  to  the  feoffor.-"'     Carrying 
ont  the  same  principle  of  consideration  in  cases  of  purcliasr.  equity 
also   established   the   doctrine,   that   where   no   declaration    of  use 
■•A-as  made  so  as  to  control,  a  use  arose  in  favor  of  the  person  from 
whom  the  consideration  came,  whatever  position  he  might  occupy 
with    respect   to   the    legal   title.      In    pursuance    of   this    doctrine, 
where  a  purchase  was  made  by  one  person  in  the  name  of  another, 
the  party  receiving  the  legal  title  held  it  for  the  use  of  the  one 

between  members  of  the  same  ffiVaHy.  as  the  sources  of  eciuitalile  riglits  of 
ownership.  A  beautiful  eousisteucv  runs  through  all  the  rules  of  equity  cou- 
cerniiijf  resulting  trusts. 

- 1    Spence's   Eq.   Jur.   449.   4.10. 

'  1    Spence's  Eq.  Jur.  4.")0,  i'^A. 

'  1    S|)ence's    Eq.    .Fur.    4'')(). 

'  1  Spence's  E(|.  Jiir.  -!.li-45L-.  Thii,  particuIcV.  rule  applied  to  every  con- 
dition of  circumstances,  both  where  the  7!S2  in  favor  of  the  third  person 
irliolly  failed,  for  any  reason,  to  lt>P  operative,  and  where  it  partially  failed 
to  exhaust  the  estate  held  by  the  f^.vTee. 


§982  EQUITY    JL-IUSPHUDEXCE.  543 

who  advanced  or  paid  the  price.  Here,  also,  an  apparent,  but  not 
a  real,  exception  arose  from  the  fact  that  good  consideration  of 
blood  and  marriage  operated  between  near  relatives  in  the  same 
manner  as  a  money  consideration  between  strangers.  In  case  of 
a  purchase  by  a  parent  in  the  name  of  his  child,  no  use  was  held 
to  result  for  the  benefit  of  the  parent  paying  the  price,  but  the  pur- 
cliase  was  presumptively  regarded  as  an  adv^meement.^  As  a  sec- 
ond illustration  of  the  same  general  doctrine,  whenever  an  owner 
agreed  for  a  valuable  consideration  to  sell  his  estate,  although 
there  was  no  conveyance,  and  there  were  no  words  of  inheritance 
in  the  contract,  equity  declared  that  a  use  was  created  in  favor 
of  the  vendee,  by  means  of  the  consideration,  and  that  the  vendor 
held  the  legal  title  as  his  trustee.  The  same  rule  was  extended 
to  cases  between  near  relatives,  where  the  consideration  was  tliat 
of  marriage  or  blood.  If  a  person,  on  consideration  of  inarriage 
or  blood,  covenanted  to  settle  an  estate  on  an  intended  husband  or 
wife,  or  on  his  children,  or  other  nearest  blood  relativc-s  ('(|uity 
held  that  a  use  was  thereby  created  in  favor  of  the  husband,  wife, 
(hildren,  or  relatives,  and  treated  the  covenantor  as  a  trustee  for 
their  benefit.'^  Finally,  the  principle  of  consideration  was  extended 
by  analogy  to  eases  of  fraud,  actual  or  constructive,  accident*,  and 
mistake.**  This  last  apjilication  of  the  doctrine  became,  in  time, 
the  most  efficient  means  in  the  hands  of  courts  of  equity  for  work- 
ing substantial  justice  in  disregard  of  legal  forms.  Whenever 
one  person,  through  mistake  or  fraud,  or  in  violation  of  fiduciary 
relations,  obtained  the  legal  title  and  apparent  OAvnership  of  i^rop- 
erty  which  in  justice  and  good  conscience  belonged  to  another, 
sneh  property  was  immediately  impressed  wnth  a  use  in  favor  of 
the  latter  equitable  owner.''* 

§  982.  Double  Nature  of  Property  in  Land — The  Use  and  the 
Seisin. — From  these  doctrines  concerning  express  uses,  and  espe- 
cially concerning  those  implied  from  the  acts  or  omissions  of 
parties,  it  appears  that  equity  at  an  early  day  introduced  the  notion 
of  a  nse  connected  with  and  forming  a  part  of  every  OAvnership  of 
land.  The  very  conception  of  property  in  land  was  thus  changed 
from  its  primitive  unity  and  simplicity,  and  it  was  made  to  involve, 
as  an  essential  element,  the  notion  of  the  use  in  connection  with 
the  mere  legal  proprietorship  and  seisin.  According  to  this  theory, 
every  ownership — property  itself — consisted  of  a  legal  title  and  of 
a  use.     These  tAvo  might  be  combined  and  held  by  the  same  per- 

"  1  Spcncn's  Eq.  ■Iwr.  4.")l-4.')3. 

'  1  Spence's  Eq.  Jur.  4.">l-4.")3. 

*  1  Spence's  Eq.  Juv.  453,  454. 

"1  Spence's  Eq.  Jur.  453,  454. 


543  ORIGIN  OK  rsEs  and  TursTS.  §  983 

S')n,  and  their  union  would  lliiis  constitute  the  highest  or  idea! 
dominion;  or  they  might  be,  and  often  were,  separated,  and  held  iiy 
different  persons;  but  of  tlie  two  the  use  was  the  more  important, 
since  it  represented  the  real,  substantial  usufructuary  proprietoi'- 
ship,  while  the  other  might  be  the  naked  legal  estate,  drawing  after 
it  or  conferring  no  benetlcial  rights  of  enjoyment  whatsoever. 
While  the  legal  title  and  seisin  always  existed  in  some  person, 
and  remained  subject  to  the  connnon-law  dogmas,  the  use,  beinu' 
a  creature  of  equity,  was  entirely  free  from  the  feudal  burdens, 
and  from  the  restrictions  growing  out  of  the  common-law  theoi-y 
as  to  seisin.  It  even  lacked  some  other  common-law  incidents,  like 
dower.  It  was  descendible  like  the  legal  estate ;  but  this  was  sub- 
stantially the  only  feature  of  uses  in  which  the  early  chancellors 
applied  the  maxim,  Aequitas  secpiitur  legem. ^  In  every  other  re- 
spect they  disregarded  the  narrow  dogmas  of  the  common  law, 
and  seemed  intent  on  building  up  a  sj^stem  of  landed  ownership 
which  should,  as  far  as  practicable,  satisfy  the  needs  of  commerce, 
and  at  the  same  time  maintain  the  dignity  of  families  and  the  su- 
premacy of  the  aristocracy. - 

§  983.  The  Statute  of  Uses. — Several  statutes  were  enacted, 
from  time  to  time,  designed  to  prevent  some  of  the  particular  ef- 
fects produced  by  uses,  and  especially  the  statutes  of  mortmain 
were  extended  so  as  to  prohibit  uses  in  favor  of  ecclesiastical  cor- 
porations; but  it  was  not  until  the  reign  of  Henry  VIII.  that  any 
legislative  attempt  was  made  to  destroy  them.  That  monarch 
became  exceedingly  displeased  at  his  losses  of  revenue  resulting 
from  the  practical  abrogation  of  wardships  and  other  feudal  inci- 
dents, and  determined  to  cut  up  the  cause  of  the  evil,  as  he  re- 
garded it,  from  the  very  roots.  In  the  twent5''-third  year  of  his 
reign,  he  procured  a  bill  to  be-  introduced  into  Parliament  which 
would  have  limited  the  power  of  conveying  land  to  uses-,  it  i)assed 
the  House  of  Lords,  but  was  rejected  by  the  Commons.^ 
In  the  twenty-seventh  year  of  his  reign  (A.  D.  1535) 
ho  introduced  a  second  bill,  which  he  doubtless  supposed  would  be 
effectual.  It  was  drawn  up  wnth  great  care  by  some  of  the  most 
distinL!uished  laAvyers  of  the  time.  The  preamble  with  which  it 
opens  describes  the  evil  nature  and  efiPects  of  uses,  from  the  moii- 
arch's  point  of  view%  in  the  most  sweeping  and  condemnatory 
manner.  From  the  vigorous  denunciations  of  the  preamble,  we 
should  naturally  suppose  that  the  enacting  part  would  have  been 
o(|ualiy  violent  aiul  sweeping;  that,  like  statutes  of  many  American 

'Roe  ante.   vol.    1.    S§    42.1-427. 

-'  1   Sppiice's   l'"<|.  .Tiir.  454-4 ")(!. 

*  1  Ppence"'^   I'q.  .lur.  4(11.  402-465. 


§  984  EQUITY    JUHISriUDKXCE.  544 

states,  it  would,  in  express  terms,  have  abolished  all  uses  or  eonii- 
(lences,  and  have  prohibited  the  conveyance  of  land  upon  trust 
or  to  the  use  of  any  one,  or  in  any  other  manner  than  by  the 
common-law  mode  of  feoifment  and  livery  of  seisin.  For  some 
reason,  which  has  never  been  explained  by  the  legal  writers,  the 
statute  attempted  no  such  thing.  It  did  not  forbid  conveyances 
to  uses,  but,  on  the  contrary,  assumed  that  they  would  continue  as 
before.  The  only  change  or  relief  which  it  proposed  was  a  con- 
trivance "to  turn  the  equitable  estates  of  the  cestuis  que  usent 
into  legal  estates."  This  it  accomplished  by  a  provision  that  in 
certain  classes  of  conveyances  to  use,  a  legal  estate  of  the  same  kind 
and  extent  as  the  use  should  by  virtue  of  the  statute  immediately 
pass  to  and  vest  in  the  cestui  que  use,  so  that  he  would  at  once 
acquire  the  legal  title  and  ownership  of  the  same  degree,  in  i)]a('(^ 
of  the  mere  equitable  title  and  ownership  which  he  would  formerly 
have  held  under  the  name  of  "the  use."  And,  what  is  still  more 
rsi range,  the  operation  of  this  provision  was  confined  to  cases  where 
the  land  was  so  conveyed  or  held  that  the  feoffee  or  other  holder 
of  the  legal  estate  was  seised  of  it  to  the  use  of  another, — that  is, 
whore  the  feott'ee  or  other  holder  of  the  legal  estate  had  the  land 
in  fee,  fee-tail,  or  for  life ;  all  other  possible  cases  were  left  un- 
touched by  an  enactment  which  promised  so  much  in  its  preamble. 
§  984.  Uses  not  Embraced  within  the  Statute. — Notwithstand- 
ing this  statute,  the  equitable  estates  of  the  same  nature  as  uses 
continued  under  the  name  of  trusts.  In  the  first  place,  many  spe- 
cies of  existing  uses  were  wholly  untouched  by  the  statute.  The 
general  doctrine  was  established,  that  when  any  control  or  discre- 
tion is  given  to  the  feoft'ee  or  trustee  in  the  application  of  the  rents 
and  profits,  or  where  he  is  required  to  do  any  specific  acts  in 
regard  to  the  land,  and  in  all  similar  instances  of  express  aciirr 
trust,  the  legal  estate  remains  in  the  feoffee  or  trustee  to  enable 
him  to  perform  the  trust  reposed.^  All  such  cases,  though  perhaps 
within  the  letter,  were  held  not  to  be  within  the  design  and  scope 
of  the  statute.  Secondly,  where  only  a  term  of  years  is  conveyed, 
or  assigned  to,  or  is  held  by  one  person  to  the  use  of  another,  it 
was  decided  that  the  statute  does  not  operate,  but  that  the  legal 
and  equitable  estates  remain  distinct;  since  the  language  is,  "where 
any  person  is  seised  to  the  use  of,"  and  the  courts  gave  the  most 
technical  and  narrow  interpretation  to  the  word  "seised."-  Thirdly, 
the  statute  did  not  purport  to  interfere  with  uses  or  trusts  of  things 
in  action,  or  in  other  kinds  of  personal  property."    Finally,  the  ju- 

'Ure  V.  Ure,   185   111.  216.  50  N.  E.   1087. 
-  Bacon's   Reading  on   Uses,  42 ;    Dyer,   369a. 
^  Bacon's  Reading  on  Uses,  43. 


o45  ORIGIN    OF    l&ES    AND   TRUSTS.  S  985 

risdiction  oi  chancery  over  the  various  uses  which  are  created  by 
implication  or  operation  of  law — the  resulting  and  constructive 
uses — was  held  to  be  unaffected  by  the  statute.*  The  operation  of 
the  statute  was  thus  confined  to  one  class  of  uses — passive  uses 
in  land,  where  the  feoffee  or  holder  of  the  legal  title,  was  seised  of 
the  hmd  to  the  use  of  another — that  is,  held  an  estate  in  fee,  fee- 
tiiil,  or  for  life;  but  the  use  itself  might  be  for  a  term  of  years,  or 
fei   any  higher  interest. 

§985.  A  Use  upon  a  Use  not  Executed  by  the  Statute. — Even 
the  operation  of  the  statute  in  this  single  class  of  express  passive 
uses  was  soon  defeated  by  the  combined  action  of  the  law  and 
ecpiity  courts.  If  an  estate  was  given  to  A  in  fee,  to  the  use  of 
B  in  fee,  then  by  the  express  command  of  the  statute  the  legal 
estate  passed  through  A  as  a  mere  conduit,  and  became  vested 
in  the  cestui  que  use,  B.  The  statute  said  nothing,  in  terms,  of  a 
conveyance  in  fee  to  A,  to  the  use  of  B  in  fee,  to  the  use  of  or  in 
trust  for  C  in  fee.  Such  a  form  of  conveyance,  or  one  identical 
with  it  in  legal  import,  having  arisen,  the  courts  of  law,  either 
from  a  narrowness  of  construction  most  astonishing,  or  which  is 
probably  the  true  explanation,  from  a  deliberate  design  of  inter- 
preting the  statute  so  as  to  give  an  opportunity  for  its  complete 
evasion,  held  that  there  could  be  no  use  executed  upon  a  use,^ 
but  that  when  the  legal  estate  was  carried,  by  virtue  of  the  statute, 
to  the  first  cestui  que  use,  it  must  there  remain  vested  in  him.  By 
virtue  of  this  ruling,  the  legal  estate  in  the  ease  supposed  passed 
through  A  and  became  vested  in  B,  while  C,  who  was  intended  by 
the  conveyance  to  be  the  final  and  actual  beneficiary,  took  nothing. - 
Here  was  an  opportunity  which  the  court  of  chancery  could  not 
overlook.  It  seised  hold  of  the  construction  thus  given  by  the  Ihav 
courts,  and  declared  that,  although  the  legal  title  was  vested  in 
B  by  virtue  of  the  statute,  he  could  not,  in  good  conscience,  hold  it 
for  his  own  benefit,  but  he  must  hold  it  for  the  benefit  of  and  in 
trust  for  C,  who  thereby  obtained  an  equitable  estate  through  the 
conveyance,  which  the  court  of  chancery  would  maintain  and  pro- 

*1  Spenee's  Eq.  Jur.  466,  467,  493-512;  Sugden's  Gilbert  on  .Uses,  introd.. 
pp.  Ix.,  Ixi.,  75,  note  5;  Rigden  v.  Vallier,  2  Ves.  Sr.  252,  257,  per  Lord  Hard- 
wieke. 

'  It  may  be  proper  to  remark  tliat  the  word  "executed,"  in  these  old  de- 
cisions, and  as  a  technical  term  in  English  conveyancing,  simply  designates 
the  passing  of  the  legal  estate  through  the  first  holder  (the  trustee),  and 
vesting  it  in  the  person  described  as  the  cestui  que  use.  performed  l)y  opera- 
tion of  the  statute.  In  this  sense  of  the  word,  tiie  use  is  "executed"  when 
the  legal  estate  is  vested  in  the  cestui  que  use. 

*See  Tyrrel's  Case,  Dyer,    155a;    1   Coke.    136b.    137:    Hopkins  v.  Hopkins,   1 
Atk.   581,  590,   592,  per  Lord   Hardwicke;    Sanders  on   Uses,   92,  93. 
35 


?>  986  EOriTr  <7UPJSPRUDENCK.  ^6 

tect.^  This  doctriue  of  chane;^rv  wa?  acquiesced  irv  at  oncp.  and 
hrtS  remained  unquestioned  by  the  courts  to  Ihe  present  day.  The 
practical  result  was,  that  by  maMng  a  slight  alteration  in  the 
formal  language  of  conveyances,  so  that  an  estate  should  be  con- 
veyed to  or  held  by  one  person,  to  the  use  of  a  second,  to  the  use 
of  or  in  trust  for  a  third,  this  third  person  would  acquire  an 
equitable  estate  distinct  from  the  legal  estate,  vested  by  operation 
of  the  statute  in  the  second  party;  and  the  whole  system  of  ex- 
press passive  uses  was  thus  restored,  or  revived  to  the  same  extent 
as  before  the  passage  of  the  act.'* 

§  986.     Trusts  after  the  Statute. — Although  the  beneficial  or  equi- 

"  Hopkins  v.  Hopkins,  1  Atk.  581,  590,  591,  per  Lord  Hardwicke;  Willet 
V.   Sandford,   1  Yes.   Sr.    186,   per  Lord  Hardwicke. 

*As  a  matter  of  fact,  in  creating  these  express  passive  uses  by  conveyances 
inter  vivos,  the  old  form  of  feoffment  to  A,  to  the  use  of  B,  to  the  use  of  C. 
Avas  seldom,  if  ever,  employed  after  the  "statute  of  uses,"  since  it  still  required 
livery  of  seisin  to  be  made  to  the  feoffee,  A.  Other  forms  of  conveyance  he- 
came  universal,  in  which  the  use  upon  a  use  was  created  by  means  of  the 
equitable  principle  concerning  the  use  aiising  and  following  the  consideration. 
In  family  settlements,  where  the  good  consideration  of  blood  or  affection  is 
.sufficient,  if  A,  the  owner  of  land,  covenanted  to  stand  seised  of  it  for  his 
son  B,  then  a  use  thereby  arose  in  favor  of  B,  and  the  statute  executed  this 
use  by  passing  the  legal  estate  directly  to  B,  who  thereby  became  seised  in 
taw.  If,  however,  A  wished  to  create  a  passive  trust  for  his  son  B,  he  cove- 
nanted to  stand  seised  of  the  land  for  C  to  the  use  of  or  in  trust  for  his  son 
li.  and  the  legal  estate  was  thereby  vested  by  the  statiite  in  C,  but  was  held 
l»y  him  simply  as  a  trustee  for  the  intended  beneficiary,  B.  This  came  to  be 
the  universal  form  of  deed  for  the  purpose  of  creating  passive  trusts  in  family 
or  marriage  settlements.  ^A'he^■ever  the  conveyance  was  between  strangers,  so 
that  a  pecuniary  consideration  was  requisite,  another  form  of  deed  was  adopted. 
As  has  already  been  stated,  the  doctrine  had  long  been  settled  that  if  A.  the 
owner  of  land,  agreed  to  .sell  it  to  B  for  a  valuable  consideration,  a  use  wa^ 
7'aised  by  the  consideration  in  B's  favor.  Carrying  out  this  doctrine,  if  a 
deed  of  conveyance  from  A,  the  owner,  to  B  recited  or  admitted  that  a  consid- 
eration had  been  received,  this  recital  was  regarded  as  evidence  of  the  fact 
sufficient  to  raise  a  use  in  B's  favor.  Finally,  it  was  settled  that  if  in  a  deed 
of  conveyance  the  words  "bargain  and  sell"  were  employed  as  operative  words 
of  transfer,  they  conclusively  imported  a  pecuniary  consideration,  and  a  use 
arose  therefrom  in  favor  of  the  grantee.  A  deed,  therefore,  from  A,  by  which 
he  bargained ^nd  sold  land  to  B,  created  the  use  in  B's  favor,  which  the  stat- 
ute executed  by  transferring  the  legal  estate.  If,  however,  A  designed  to 
create  a  passive  trust  ior  B  as  the  benficiary.  his  deed  would  be  modified 
m  form,  so  as  to  be  a  bargain  and  sale  of  the  land  to  C  to  the  use  of  or  in 
trust  for  B.  By  operation  of  the  statute  the  legal  estate  would  thereby  be 
vested  in  C,  but  would  be  held  by  him  as  a  trustee  for  B,  the  intended  bene- 
ticiary.  This  became  the  common  form  of  deeds  creating  express  passive  trusts 
inter  vivos,  where  the  parties  were  not  near  family  relatives.  Wherever  an  estate 
was  given  by  wiii,  and  the  testator  wished  to  create  a  passive  trust  which 
should  be  valid  notwitlistanding  the  statute,  express  M-ords  were  neeessarj 
leclaring   or   creating   in    some   manner   one   u.se   upon   another. 


547  ORIGIN    OF    USES    AXD   TUUSTS.  §  986 

table  interests  which  had  existed  under  the  denoniinc.tion  oi"  "uses" 
prior  to  the  statute  were  thus  kept  in  existence,  and  continued  to 
be  under  the  exclusive  jurisdiction  of  chancery,  it  was  found  con- 
venient to  give  them  a  new  name.  The  "use"  had,  by  virtue  of 
tJie  statute,  passed  Avithin  the  cognizance  of  the  law  courts,  and 
tiienceforth  it  played  a  most  important  part  in  the  English  theory 
and  practice  of  conveyancing;  and,  as  such,  it  does  not  fall  Avithin 
the  scope  of  a  treatise  upon  equity  jurisprudence.^  The  beneficial 
interests  which  equity  recognized  and  protected — both  those  kinds 
which  were  held  not  to  have  been  affected  at  all  by  the  statute, 
and  those  which  were  rescued  from  its  operation  by  the  construc- 
tion described  in  the  last  paragraph — were  styled  trusts;  the  person 
holding  the  legal  title  was  termed  the  trustee;  while  the  holder  of 
the  beneficial  or  equitable  estate  was  ordinarily  known  as  the  cestui 
que  trust,  or,  in  more  modern  nomenclature,  as  the  beneficiary. 

'  Tlie  foregoing  account  of  the  text  shows  the  origin  of  trusts  as  they  exist 
in  England  under  the  statute  of  uses,  and  its  judicial  interpretation.  The 
(lucstion  then  arises,  How  far  does  tlie  statute  exist  in  this  country,  and  attect 
the  creation  of  trusts?  Since  the  statute  never  applied  to  personal  property, 
and  imder  the  judicial  construction  never  embraced  active  uses  and  trusts, 
it  follows  that  the  question  suggested  practically  means,  how  far  do  express 
passive  trusts  in  lands  exist  in  the  states  of  this  country?  and  how  far  does 
their  creation  depend  upon  the  statute  of  uses?  As  such  express  passive  trusts 
are  very  rare  indeed  in  the  United  States,  and  are  opposed  to  our  prevailing 
notions  of  landed  property  and  modes  of  dealing  with  it,  tliis  question  is 
plainly  more  theoretical  than  practical.  Still,  the  operation  of  the  statute 
has  sometimes  been  discussed  by  American  courts,  and  in  one  state  in  par- 
ticular it  has  been  a  frequent  subject  for  judicial  inquiry.  In  several  of 
the  states,  as  will  more  fully  appear  in  a  subsequent  paragraph,  all  express 
passive  trusts  in  land,  and  all  express  active  trusts,  with  the  exception  of 
certain  specified  species,  have  been  completely  abrogated  and  abolished.  The 
statute  of  uses  clearly  has  no  operation  in  those  states,  since  it  has  been  super- 
seded bj  more  destructive  legislation.  ...  In  most  of  the  remaining  states. 
as  ]Mr.  Perry  shows  in  his  admirable  treatise,  the  statute  of  uses  has  either 
been  substantially  re-enacted,  or  adopted  and  held  to  be  in  force  as  a  part  of 
the  English  legislation  regarded  as  operative  and  binding  in  this  countrj'. 
See  Perry  on  Trusts,  sec  209,  and  note,  containing  abstract  of  statutes.  See., 
also,  Fellows  v.  Kipley.  Gi)  X.  II.  410,  45  Atl.  138;  Graham  v,  Whitridge,  (Md.) 
58  Atl.  30;   Henderson  v.  Adams,  15  Utah  30,  48  Pac.   398. 


§  987  EQUITY    JLKlSl'IiUDEXCK.  548 

SECTION  II. 
EXPRESS    PRIVATE    TRUSTS. 

ANALYSIS. 

§  987.  Classes  of   trusts. 
§§  988-990.  Express    passive    trusts. 

§  989.  Estates   of   the   two    parties:    liability    for    beneficiary's    debts,    etc. 
§  990.  Rules    of   descent,    succession,    ai.d    alienation. 
§§  991-995.  Express    active   trusts. 
§  992.  Classes  of  active  trusts. 

§  993.  Voluntary  assignments  for  the  benefit  of  creditors;  English  doctrine. 
§  994.  The  same;   American  doctrine. 
§  99.5.  Deeds   of  trust   to   secure  debts. 
§§  996-999.  Voluntary    trusts. 

§  997.  The    general    doctrine;    incomplete    voluntary    trusts    not    enforced. 
§  998.  When  the   donor   is   the   legal   owner. 
§  999.  When   the  donor  is  the   equitable   owner. 
§§    1000,  1001.  Executed    and    executory    trusts. 
§    1001.  Definition   and   description. 
§    1002.   Powers    in    trust. 
§§    1003-1005.  Legislation    of    various    states. 

§    1004.  Judicial    interpretation;    validity    of    trusts. 

§   1005.  Interest,   rights,   and   liabilities  of  the  beneficiary. 

§  987.  Classes  of  Trusts. — Ilavino'  thus  explained  the  origin  of 
trusts  and  their  historical  development  until  the  jurisdiction  sitb- 
stantially  as  it  now  exists  had  become  firmly  established,  I  shall 
now  proceed  to  consider  the  various  kinds  and  classes  which  are 
recognized  by  equity  and  form  a  part  of  its  jurisprudence.  All 
possible  trusts,  whether  of  real  or  of  personal  property,  are  sepa- 
rated by  a  principal  line  of  division  into  two  great  clas.ses:  Those 
created  by  the  intentional  act  of  some  party  having  dominion  over 
the  property,  done  with  a  view  to  the  creation  of  a  trust,  which  are 
express  trusts;  those  created  by  operation  of  law.  Adhere  the  acts 
of  the  parties  may  have  had  no  intentional  reference  to  the  exist- 
ence of  any  trust, — implied,  or  resulting,  and  constructive  trusts. 
Express  trusts  are  again  separated  into  two  general  classes, — pri- 
vate and  public.  Private  trusts  are  those  created  by  some  written 
instrument,  or  in  some  trusts  of  personal  property  by  a  mere  verbal 
declaration,  for  the  benefit  of  certain  and  designated  individuals, 
in  which  the  cestui  que  trust  is  a  known  person  or  class  of  persons. 
Public,  or,  as  they  are  frequently  termed,  charitable,  trusts  are 
those  created  for  the  benefit  of  an  unascertained,  uncertain,  and 
sometimes  fluctuating  body  of  individuals,  in  which  the  cestuis  que 
trustent  may  be  a  portion  or  class  of  a  public  community. — as.  for 


549  EXPRESS   rinvATE   trusts.  §  988 

example,  the  poor  or  the  c-hildreii  of  a  partieuhir  town  or  parish. 
As  a  iieueral  rule,  property  of  every  kind  and  form,  real  and  per- 
sonal, may  be  made  the  subject  of  an  express  trust  or  of  one  arising 
by  operation  of  law.  All  persons  who  have  the  capacity  to  hold 
and  dispose  of  property  can  impress  a  trust  upon  it;  and,  generally, 
all  persons  capable  of  holding  property  may  be  made  trustees.^ 
All  persons  capable  of  holding  property,  even  those  non  sui  juris, 
and  such  persons  only,  may  be  beneficiaries.-  E(|uity  wil!  enforce 
all  lawful  trusts.  If  a  trust  should  be  created  for  an  illegal  or 
fraudulent  purpose,  equity  will  not  enforce  it,  nor,  it  seems,  relieve 
the  person  creating  it  by  setting  aside  the  conveyance."  When, 
however,  a  trust  is  unlawful  because  it  is  one  which  the  statute 
forbids,  or  w^hich  conflicts  with  the  statute  concerning  perpetuities, 
and  the  like,  the  whole  disposition  is  void.* 

§  988,  Express  Passive  Trusts. — Express  private  trusts  are  of 
two  kinds, — passive  or  simple,  and  active  or  special.  An  express 
passive  or  simple,  or,  as  it  is  sometimes  called,  pure,  trust  exists 
when  land  is  conveyed  to  or  held  by  A  in  trust  for  B,  without  any 
power  expressly  or  impliedly  given  to  A  to  take  the  actual  posses- 
sion and  management  of  the  land,  or  to  exercise  acts  of  government 
over  it  except  by  the  direction  of  B.^  In  such  a  cjise  the  naked 
legal  title  alone  is  vested  in  the  trustee,  while  the  equitable  estate 
of  the  cestui  que  trust  is  to  all  intents  the  beneficial  ownership,  en- 
titlmg  him  to  the  possession,  the  rents  and  profits,  and  the  manage- 
ment and  control,  according  to  the  extent  of  his  estate.    These  pass- 

'It  might  not  be  expedient  to  appoint  married  women  or  infants  trustees; 
1)nt  they  77iay  discharge  the  duties  of  the  office;  see  Jevon  v.  Bush,  1  Vern. 
342,  Ames  Trusts  217;  Still  v.  Rub}-,  3.5  Pa.  St.  373,  Ames  Trusts  219.  Prop- 
erty subject  to  an  express  or  implied  trust  might  devolve  upon  a  person 
wholly  non  sui  juris,  as  an  idiot:  equity  would  either  enforce  the  trust  against 
the  property,  or  appoint  anotlier  trustee.  The  difficulty  of  enforcing  a  con- 
veyance by  the  trustee  in  such  a  case  (see  Pegge  v.  Skinner,  1  Cox  Eq.  23. 
Ames  Trusts  218:  Hall  v.  Warren.  0  Ves.  605,  H.  &  B.  575)  has  been  overcome 
by  modern  statutes;  see  Ee  Wadsworth,  2  Barb.  Ch.  381,  Ames  Trusts  511. 
A  corporation  may  be  a  trustee:  Att'y  Gen.  v.  Landisfield,  9  Mod.  286,  Ames 
Trusts    216. 

-Wherever  the  common-law  rule  prevails  forbidding  aliens  from  acquiring 
or  holding  real  estate  by  an  absolute  right,  they  cannot  be  made  beneficiaries, 
and  hold  the  equitable  interest  inider  a  trust  in  their  favor;  but  this  rule  does 
not  prohibit  trusts  of  personal  property  on  behalf  of  aliens:  Du  Hourmelin 
V.  Sheldon,  4  Mylne  &  C.  525,  1  Beav.  79.  The  common-law  rule  also  dis- 
qualifies them  from  being  trustees:     King  v.  Bays,  Dyer  283b,  Ames  Trusts  216. 

^See  Symes  v.  Hughes,  L.  R.  9  Eq.  475;  Cross  v.  U.  S.  Trust  Co.,  131  N,  Y. 
330,  27   Amer.   St.  Rep.   597,   30  N.   E.   125,    15  L.   R.   A.   606. 

*. Johnston's  Estate,   185   Pa.   St.    179,  64   Amer.   St.   Rep.   621,   39   Atl.   879. 

>  1  Spence's  Eq.  Jur.  49.5-497.  See  Holmes  v.  Walter,  118  Wis.  405),  95 
'N.  W.   380. 


§  1)81)  KQUITY    JUinsi'lUDKNCK-  550 

ive  trusts  are  considered  in  eiiuity  as  virtually  equivalent  to  the 
coiresponding  leyal  ownerships;  the  trust  is  regarded  .'/ather  as 
fastened  upon  the  estate  thaii  ujjon  tlie  person  of  the  trustee;-  it 
is  never  suffered  to  fail  for  want  of  a  trustee,  either  when  the  des- 
ignated trustee  dies,  or  refuses  to  act,  or  is  an  improper  person. •■ 
As  a  general  principle,  the  rules  of  law,  excepting  those  growing 
out  of  the  doctrine  of  tenure,  have  been  applied  by  analogy  as  far 
as  practicable  to  these  corresponding  passive  trust  estates.*  A 
person  cannot  hold  property  under  a  passive  trust  for  himself, 
for  generally,  when  the  legal  estate  and  an  equal  or  less  equitable 
estate  unite  in  the  same  owner,  a  merger  takes  place;''  but  this 
rule  is  not  universal,  since  the  two  estates  may  be  kept  separate  and 
subsisting,  in  order  to  protect  the  equitable  interests  of  the  owner.'' 
Such  express  passive  trusts  in  land  are  certainly  very  infrequent 
m  this  country,  although  they  may  occasionally  exist,  where  not 
])r()hibited  by  statute."  Trusts  in  personal  property,  however,  which 
are  essentially  passive,  are  not  at  all  uncommon.'* 

§989.  Estates  of  the  Two  Parties. — The  estate  of  the  naked 
trustee  in  a  i)assive  trust,  and  a  fortiori  of  the  trustee  in  an  active 
trust,  is  the  only  legal  ownership,^  although  it  must  be  used,  in  equi- 
ty, only  for  the  purposes  of  carrying  out  the  trust  and  protecting 
the  rights  of  the  beneficiary.-  The  trustee,  having  the  legal  in- 
terest, is  the  proper  person  to  bring  actions  at  law,"  and  to  do 
(itlier  things  which  can  be  done  only  b}-  one  having  the  legal  estate.* 
The  estate  of  the  cestui  (lue  trust,  wliile  regarded  in  equity  as  the 

-  Adair  v.  Shaw,   1   Shoales  &  L.  262,  per  Lord  Redesdale. 

^See  post,   S    lOST;   Keith  v.   Scales,   124  N.   ('.  4!)7.   32   S.   E.   809. 

nVatts  V.  P.all,  1  P.  Wms.  108,  Ames  Trusts  370,  1  Scott  292;  Burgess  v. 
Whcate,  1  Eden  177,  1S4,  lOo,  per  Sir  T.  Clarke;  p.  223,  per  Lord  Mansfield; 
p.   2.-)0,    per    Lord    Xdrthiiiiiton.    Ames    Trusts    3.-)G,    1    Scott    58,    31G. 

■■'Tilton    V.    Davidson,    08    IMe.    a.").   ,5(j    Atl.    215. 

n^rydges  v.   F.rydges,   3   Ves.   120,    126.     See  ante,   §§   787,   788. 

'Dean  v.   Long,    122   111.  447,    14  N.  E.  34. 

**  For  example,  A  may  deposit  money  in  a  l)ank,  in  "trust  for  B."  or  may 
deposit  in  the  name  of  B,  "in  trust  for  C,"  and  thus  create  a  valid  trust  which 
!*<  really  passive,  since  tlie  trustee  is  not  charged  with  any  duties  of  manage- 
ment, such  as  receiving  the  interest  and  paying  it  over;  in  fact,  he  holds  the 
corpus  of  tlie  property  in  trust  for  the  beneficiary.  As  illustration,  see  Mar- 
tin V.  Funk,   75  N.  Y.   134;   31  Am.  Rep.  446,  H.  &   B.   393. 

'  (Jandy  v.  Fortner,  119  Ala.  .303,  24  South.  425. 

=  Hafner  v.  City  of  St.  Louis,  161  Mo.  34,  61  S.  W.  632;  Xeal  v.  Bleckley, 
51   S.   C.   506,  29   S.  E.  249. 

M^rice  V.  Krasnoflf,   60  S.  C.    172,   38   S.   E.   413. 

*  When  money  is  deposited  in  a  bank  to  the  credit  of  A,  in  trust  for  B,  A, 
or  upon  his  death  his  administrator,  is  prima  facie  tlie  proper  person  to  de- 
mand and  receive  payment  from  the  bank:  Boone  v.  Citizens'  Sav.  Bank,  8* 
N.  Y.  S3 :  38  Am.  Rep.  498. 


r<51  EXl'ltKSS    rinVATE     TKL'.STS.  §  989 

real  ownership,  is  governed,  so  far  as  practicable,  by  the  leyal  rules 
applicable  to  similar  estates  at  law.  The  language  of  the  instru- 
ment creating  or  declaring  the  trust  is  interpreted  by  courts  of 
ecpiity  in  accordance  with  the  rules  followed  by  courts  of  law. 
The  interest  of  the  cestui  que  trust  is  alienable;  if  real  estate,  it 
nuiy  be  conveyed  by  ordinarj'  deed;  if  persoiuil,  it  may  be  assigned;^ 
but  the  rule  is  established  in  England  that  notice  must  be  given 
to  the  trustee,  in  order  to  perfect  an  assignment  b}'  a  cestui  qu^ 
trust  of  peisonalty,  and  to  protect  the  assignee."  The  estate  cannot, 
by  any  restrictions  annexed  to  the  trust,  be  rendered  inalienable, 
nor  can  it  be  stripped  of  other  incidental  rights  of  ownei'ship.'^ 
It  is  also  lial)le  for  the  debts  of  .the  beneficiary.''  It  cannot 
he  so  created  that,  while  it  is  subsisting  and  enjoyed  by  the  benefi- 
ciary, it  shall  be  absolutely  free  from  such  liability.  The  trust  may 
be  so  limited  that  it  sliall  not  take  effect  unless  the  beneficiary 
is  fi-ee  from  debt,  or  that  his  estate  shall  cease  upon  his  becoming 
insolvent,  or  upon  a  judgment  being  recovered  against  him,  and 
shall  thereupon  vest  in  another  person;"  but  the  cestui  que  trust 
cannot  hold  and  cnjoij  his  interest  entirely  free  from  the  claims 
of  creditors.^"     These  rules  are  subject  to  a  most  important  excep- 


'See   post,   §    100.5. 

"This  rule  is  luloptod  in  only  a  portion  of  the  American  states:  See  ante, 
■§§   ()!)5-007,  where  the  English  and  American   cases   are  cited. 

H'.randnn   v.   Rohinson,    18   Ves.  42f),  Ames  Trusts   394. 

« Forth    V,    Duke    of    Norfolk,    4    Jfadd.    503. 

M'.ull   V.   Kv.    ]'>ank.   !I0    Ky.   4.-,i'.    14   S.   W.   42.-),    12   L.   W.   A.    37. 

'"This  is  tlie  Enolish  rule  upon  this  subject,  and  tlie  rule  in  about  half  of 
the  states  where  the  question  has  arisen:  Brandon  v.  Rolunsdu.  IS  Ves.  42!). 
Ames  Trusts  304:  Nichols  v.  Levy.  5  Wall.  433.  441;  Bland  v.  Bland,  00  Ky. 
400,  29  Am.  St.  Rep.  390,  14  S.  W.  423,  9  L.  B.  A.  .599;  Hutchinson  v.  :yiax- 
well,  100  Va.  100,  40  S.  E.  65."),  03  Am.  St.  Rep.  944,  57  L.  R.  A.  384.  These 
trusts  are  commonly  known  by  the  name  of  "spendthrift  trusts."  Their  validity 
has  been  sustained  in  many  jurisdictions,  however,  largely  on  the  sfrength 
of  dicta  in  Nichols  v.  Eaton.  01  U.  S.  716;  see  Broadway  Nat.  Bank  v.  Adams, 
133  Mass.  170,  43  Am.  Rep.  179,  Ames  Trusts  397;  Leigh  v.  Harrison,  09  :\Iiss. 
023.  11  South.  604,  18  L.  R.  A.  49:  .Tackson  Sq.  L.  &  S.  Ass'n  v.  Bartlett.  95 
^rd.   661.  53   AH.  426,   93   Am.   St.   Rep.   410. 

.Ml  jurisdictions  agree  in  holding  that  a  person  sui  juris  cannot  convey 
his  j)roi)erty  upon  trusts  for  himself  free  from  the  claims  of  his  creditors: 
Brown  v.  IMcOill.  87  ;Md.  161.  67  Am.  St.  Rep.  334,  39  AH.  613,  39  L.  R. 
A.  806;  Ohormley  v.  Smith,  130  Pa.  St.  584,  23  Am.  St.  Rep.  21.5,  21  AH. 
135,  11  L.  R.  A.  565.  When  no  interest  is  vested  in  the  beneficiarv,  as  where 
the  direction  of  the  creator  of  the  trust  is  not  to  pay  the  income  but  to  apph/ 
such  portion  of  it  as  the  trustee  sees  fit  to  the  support  of  A;  or  to  pay  the 
incoitie  to  A  and  others  in  such  proj)ortions  as  the  trustee  sees  fit:  the  income 
is  free  from  the  reach  of  the  beneficiary's  creditors:  See  In  re  Bullock.  60 
L.  J.   Rep.   Ch.  .341,  Ames  Trusts  401  :    In    re   rolcman.   39   Ch.   Div.   443.    Ames 


§  991  EQUITY    JUKISPKUDENCE.  552 

tion  in  the  case  of  the  married  woman's  separate  estate, — property- 
held  npon  trust  for  her  separate  use.  It  is  the  familiar  doctrine 
with  reference  to  such  separate  estate, — the  very  essential  element 
that  it  may  be  settled  to  her  own  separate  use  so  as  to  be  held 
by  her  entirely  free  from  her  husband's  control  and  from  the 
claims  of  his  creditors.  It  is  also  the  established  doctrine,  designed 
to  protect  her  from  the  moral  influence  of  her  husband,  that  in 
creating  the  trust  a  clause  may  be  inserted  against  "anticipation," 
by  which  her  power  of  aliening  her  interest  is  taken  away  during 
her  marriage ;  and,  as  the  rule  is  generally  accepted,  the  restraint 
of  such  clause  may  operate  during  any  future  as  well  as  present 
marriage.^  ^ 

§990.  Rules  of  Descent  and  Succession. — The  rules  concerning 
descent,  devolution,  and  succession,  applied  to  the  equitable  estates 
of  beneficiaries,  are  generally  the  same  which  regulate  correspond- 
ing legal  estates.^  Those  rules,  however,  which  result  from  the 
doctrine  of  tenure  do  not  apply,  and  therefore  it  is  settled  in  Eng- 
land that  the  ecpiitable  estate  of  the  beneficiary  in  lands  held  in 
trust  for  him  is  not  subject  to  escheat,  but  the  trustee  holds  the 
land  absolutely.-  As  a  consequence  of  the  general  doctrine,  estates 
of  inheritance  held  in  trust  for  the  wife  are  subject  to  the  husband's 
curtesy;'^  but  by  a  strange  inconsistency  of  the  English  law,  the 
wife  had  no  dower  in  similar  estates  held  in  trust  for  her  hus- 
band.* 

§991.  Express  Active  Trusts. — Active  or  special  trusts  are  those 
in  which,  either  from  the  express  directions  of  the  language  creat- 

Trusts  339;  Nichols  v.  Eaton,  supra;  Stone  v.  Westcott,  18  R.  I.  685,  29  Atl. 
838. 

See  a  most  interesting  discussion  of  the  whole  subject  in  Gray's  Eestraints 
on  Alienation,  Preface  and  §§  134-277.  In  the  group  of  states  which  follow 
the  New  York  legislation  relating  to  trusts,  the  rights  of  creditors  are  regu- 
lated by  statutes,  and  only  that  portion  of  the  income  which  is  not  required 
for  the  beneficiary's  support,  education,  etc.,  can  be  reached;  in  a  few  states, 
liowever,  the  Avhole  income  is  thus  exempt:  Graff  v.  Bennett,  31  N.  Y.  9,  88 
Am.    Dec.    236. 

"See  post,   §§    1107-1109. 

'See  Burgess  v.  Wheate,  1  Eden  177,  Ames  Trusts  356,  1  Scott  58.  316; 
The  King  v.  Ex'rs  of  Sir  John  Deceombe,  Cro.  Jac.  512,  Ames  Trusts  353; 
Anonymous,  reported  in  Year  Book,  5  Edw.  IV,  7,  pi.  18,  Ames  Trusts  352; 
King's  Att'y  v.  Sands,  Freeman  Ch.  Cases  129,  Ames  Trusts  354;  Middleton 
V.   Spicer,    1   Br.   Ch.   Cas.   201,   Ames   Trusts   364. 

=  Burgess  v.  Wheate,   1  Eden   177,  Ames  Trusts  3.56,   1   Scott  58,  316. 

"Appleton  V.  Rowley,  L.  R.  8  Eq.  139.  Ames  Trusts  381;  Sweetapple  v. 
Bindon,  2  Vern.  536,  Ames  Trusts  379;  Watts  v.  Ball,  1  P.  Wms.  108,  Ames 
Trusts   379,    1   Scott   292. 

^D'Arey  v.  Blake,  2  Schoales  &  L.  387,  Ames  Trusts  376;  Bottomly  v.  Lord 
Fairfax,    Precedents   in    Ch.    336,   Ames    Trusts    375. 


553  ExrrtKss   piuvate   tuusts.  §  i)y2 

iug  the  trust,  or  from  the  very  nature  of  the  trust  itself,  the 
trustees  are  charged  with  the  perforniauee  of  active  and  substan- 
tial duties  with  respect  to  the  control,  nianagenient,  and  disposition 
of  the  trust  property  for  the  beuelit  of  the  cestuis  que  trustent 
They  may.  except  when  restricted  by  statute,  be  created  for  every 
purpose  not  unlawful,  and,  as  a  general  rule,  may  extend  to  eve;y 
kind  of  iiropert}',  real  and  personal.  In  this  class  the  interest  of 
the  trustee  is  not  a  mere  naked  legal  title,  and  that  of  the  cestui 
que  trust  is  not  the  real  ownership  of  the  subject-matter.  The 
extent  and  incidents  of  the  rights  held  Ijy  the  respective  parties 
must,  of  course,  vary  with  the  nature  of  the  trust  itself  and  the 
duties  which  the  trustee  is  called  upon  to  perform.  It  is  a  universal 
rule,  however,  that  the  trustee's  estate  and  power  over  the  subject- 
matter  are  commensurate  with  the  duties  which  the  trust  devolves 
upon  him,  and  are  sufficient  to  enable  him  to  perform  all  those 
duties.^  The  trustee  is  generallj^  entitled  to  the  possession  and 
management  of  the  property,-  and  to  the  receipt  of  its  rents  and 
profits;  and  in  manj^  cases  he  has,  from  the  very  nature  of  the 
trust,  authority  to  sell  or  otherwise  dispose  of  it.  The  interest  of 
the  beneficiary  is  necessarily  more  limited  than  in  passive  trusts, 
and  it  sometimes  cannot  with  accuracy  be  called  an  equitable  csftrtc^ 
He  always  has  the  right,  however,  to  compel  a  performance  of  the 
trust   according  to   its   terms  and  intent.* 

§992.  Classes  of  Active  Trusts. — Although  active  trusts  may  be 
created  for  a  great  numlier  of  special  purposes,  those  which  are 
the  most  frequent  and  important  may  be  reduced  to  the  four 
following  generic  classes :  1.  Where  the  trust  is  simply  to  convey 
the  property  to  some   designated  person,  or  class  of  persons.^     2. 

M  Spence's  Eq.  Jur.  406,  497;  see  In  re  Colo's  Estate,  102  Wis.  1.  72  Am. 
St.  Hep.  8o4,  78  N.  W.  402.  As  to  the  riglit  of  the  beneficiary  to  obtain  a  con- 
A-ej'ance  of  the  trust  property,  although  the  trust  has  not  been  coniplotod  nor 
ceased,  see  Sanders  v.  \'autier,  4  Ik'av.  11.5,  Ames  Trusts  454;  Claflin  v.  Claflin. 
149  ]VIass.  19,  14  Am.  St.  Rep.  39-3,  20  N.  E.  454,  3  L.  R.  A.  370,  Ames  Trusts 
435. 

-See  Tidd  v.   Lister,   5  Mad.  429,  Ames  Trusts  465. 

'  As  to  provisions  imposing  a  restraint  pn  alienation,  and  freeing  the  interest 
of  the  beneficiarj'  from  the  claims  of  his  creditors,  see  ante,   §   9S0,   note. 

*See   post.    §§    1062-1065. 

'  This  species  is  often  found  in  connection  with  other  kinds.  Trusts  for 
investment  and  accumulation  almost  invariably  terminate  with  a  trust  to 
convey  the  accumulations  to  specified- beneficiaries;  in  trusts  for  applying  rents 
and  profits  to  particular  uses,  there  is  gonerallv  a  provision  for  conveying 
the  capital  fund,  at  the  expiration  of  tlie  period  liniited,  to  some  designated 
persons  by  way  of  remainder.  Trusts  merely  to  convey  the  property,  unac- 
companied by  any  other  duties  of  tlie  trustee,  are  uncommon.  Such  rf/.sposi- 
tiofis  are  very  frequent  in  Englisli  marriage  seltlcmenls.  but  they  are  usually 
accomplished  by  means  of  powers,   rather  than   by   trusts. 


§  !)9'3  EQUITY    JURISPRIDENCE.  554 

Where  the  primary  object  is  to  sell  or  dispose  of  the  entire  trust  prop- 
erty in  some  manner  and  to  use  the  proceeds  for  some  ulterior  pur- 
poses.- In  all  the  instances  of  this  class,  where  the  trust  is  to  sell  the 
corpus  of  the  property  and  to  distribute  the  proceeds  among  credit- 
ors, legatees,  and  the  like,  the  beneficiaries  plainly  acquire  no  proper 
estate  in  the  original  trust  fund  prior  to  its  sale;  their  right  and 
interest  attach  to  the  proceeds  of  this  fund,  which  are  to  be  paid 
to  or  distributed  among  them.  In  order  to  make  their  right  fully 
available,  and  to  guard  their  interest  as  much  as  possible  against 
the  large  authority  given  to  the  trustees,  equity  has  invented  in  such 
cases  the  doctrine  of  conversion,  by  which  real  property  is  regarded 
as  personal,  and  personal  property  as  real.-^  3.  This  class  includes 
<ill  those  trusts  where  the  primary  object  is  to  hold  and  invest  the 
entire  property  and  its  proceeds,  and  thus  to  accumulate  for  some 
ulterior  purposes/  4.  This  class  includes  all  those  trusts  of  which 
the  primary  object  is  to  hold  the  corpus  of  the  property,  receive  its 
rents,  profits,  and  income,  and  apply  them  to  some  prescribed  uses.^ 

-  Among  the  most  important  instances  belonging  to  this  class  are  convey- 
ances or  assignments  by  a  debtor  upon  trust  to  sell  the  property  and  pay 
debts  with  the  proceeds,  including  the  official  assignments  made  to  assignees. 
in  bankruptcy,  insolvency,  and  other  analogous  proceedings.  Also,  a  devise 
or  bequest  of  property  by  will,  upon  trust  to  sell,  mortgage,  or  lease  tlie 
same,  and  with  the  proceeds  to  pay  the  testator's  debts,  or  legacies,  or  an- 
nuities, or  other  charges  and  liabilities,  or  to  pay  "portions"  to  daughters 
and  younger  sons.  This  last  object,  which  is  very  common  in  England,  is 
often  found  in  family  settlements  as  well  as  in  wills.  A  trust  to  exchange 
lands,  or  to  dispose  of  property,  and  with  the  proceeds  purchase  other  kinds 
or   forms,   falls  under  the  same  class. 

'Greenhill  v.  Greenhill,  2  Vern.  679,  1  Scott  oOo;  Fletcher  v.  Ashburner,  1 
Brown  Ch.  497,  1  Lead.  Cas.  Eq.  1118,  1  Scott  (i06;  Guidot  v.  Guidot,  .3  Atk. 
2.54,  2.56,  3  Keener  949,  1  Scott  600;  Craig  v.  Leslie,  3  Wheaton  563,  H.  &  B. 
:«),   1  Scott  611.     See  post,   §    1159,  et  seq. 

*  Sometimes  land  or  personal  property  is  given  on  trust  to  receive  the  in- 
come, and  continually  to  invest  it  in  the  purchase  of  other  lands,  or  interest- 
bearing  securities,  during  the  period  of  the  trust;  sometimes  land  is  given  on 
trust  to  sell  and  to  invest  the  proceeds  in  securities,  and  to  re-invest  the 
income  in  the  same  manner;  sometimes  personal  property  is  directed  to  be 
converted  into  money,  and  the  proceeds  to  be  invested  in  lands,  the  income 
of  which  is  to  be  accumulated  by  the  constant  purchase  of  other  lands,  etc. 
In  all  these  forms  provision  is  made  for  the  disposition  of  the  accumulated 
fund  at  the  expiration  of  the  period,  in  some  manner  on  behalf  of  the  bene- 
ficiaries. The  periods  for  which  such  trusts  may  be  created  are  now  limited 
by  statute  in  England  and  in  this  country,  so  as  to  prevent  a  "perpetuity." 

■''The  forms  of  this  class  also  are  various.  Real  or  personal  property,  or 
both,  is  sometimes  given  by  will  upon  trust  to  hold  the  capital  and  apply 
the  income  to  the  payment  of  debts,  legacies,  annuities,  etc. ;  property,  real 
or  personal,  or  both,  is  given  by  will  or  by  deed  in  trust  to  receive  the  rents 
aod  profits  and  pay  the  same  to,  or  apply  them  to  the  use  of,  designated  bene- 


555  EXl'HKSS     PRIVATE     TRUSTS.  §  9P4r 

i\lure  than  one  of  these  four  general  objeets  may  be  embraced  in 
the  same  trust.  In  instances  of  the  third  and  fourth  classes,  the 
beneficiaries  may  have  a  direct  equitable  interest  in  the  trust 
})roperty  itself,  Avhich  is  plainly  more  than  a  mere  right  of  action, 
but  is  not  so  substantial  an  estate  as  that  held  by  the  cestui  que 
trust  under  a  simple  passive  trust. 

§  993.  Assignments  for  the  Benefit  of  Creditors. — Among  the 
active  trusts  which  are  quite  frequent  in  this  country  are  volun- 
tary and  general  assignments  by  failing  debtors  of  their  property 
to  trustees  upon  trust  to  pay  the  creditors  of  the  assignor.^  The 
doctrine  is  settled  in  England  that,  primarily,  such  assignments 
do  not  create  a  trust  nor  clothe  the  creditors  with  the  character 
of  cestuis  que  trustent ;  they  rather  confer  a  power  upon  the  trustee, 
and  make  him  an  agent  for  the  debtor  to  dispose  of  the  property 
und'er  the  debtor's  directions.  It  follows  from  this  yiew  that  until 
the  assignment  has  been  communicated  to  the  creditors,  it  may 
be  revoked,  or  altered,  or  superseded  by  the  assignor,  at  his  own 
will.'-  But  when  the  fact  of  such  assignment  has  been  communicated 
to  creditors,  and  their  position  is  altered  by  it,  and  especially  if 
they  have  assented  to  it,  then  it  becomes  irrevocable  as  to  such 
creditors,  and  they  can  enforce  its  trusts  and  take  the  benefit  of 
its  provisions  in  their  behalf.^  If  creditors  make  themselves  actual 
parties  by  executing  the  deed  of  assignment,  it  of  course  becomes 
irrevocable  as  to  them  ;  their  rights  under  it  are  fixed.* 

§994.  The  American  Doctrine. — With  a  few -exceptions,  the 
American  courts  have  not  adopted  this  English  theory  with  respect 
to  the  nature  of  such  assignments.  The  doctrine  is  generally  settled 
in  this  country  that  voluntary  general  assignments  for  the  benefit 
of  creditors,  if  otherwise  valid,  are  not  mere  agencies  of  the  debtor; 
they  create  true  relations,  and  the  creditors  are  true  beneficiaries. 
AVhen  once  duly  executed,  they  are  irrevocable,  and  the  creditors, 
on  being  informed  of  their  existence,  may  take  advantage  of  the 
provisions  in  their  ow^n  favor,  and  may  enforce  the  trusis  declared 
without  making*  themselves  parties,   or   doing  any   act  indicating- 

ficiaries  during  their  lives,  or  for  some  specified  period.  In  this  manner  pro- 
vision is  often  made  for  wives  in  marriage  settlements,  and  for  widows  and 
cliildren  hj  will. 

'These  general  assignments  are  not  common  in  England,  since  they  inter- 
fere with  the  modern  bankrupt  laws;  so  far  as  tliey  do  not  conflict  witli 
II10S0  laws  they  are  valid.  In  some  of  the  states  the  whole  ground  is  covered 
hy  local  insolvent  laws;  in  others,  assignments  for  the  benefit  of  creditors  are 
strictly  regulated  and  limited  by  statutes. 

■■=  Acton   V.   Woodgate,  2   :\Iylne   &   K.   492. 

MJlegg  v.  Reese,  L.  R.  7   Ch.   71. 

♦Pee  Whitmoro  v.  Tiirquand,  3  Dc  Oex.  F.  &  J.  107. 


§  995  EQUITY     JTRTSPni'DEXCE.  556 

their  oAvn  acceptance  or  assent.^  Although  tlie  assignee  is  thus  a 
trustee  for  the  creditors,  yet  he  is  at  the  same  time  so  far  a 
representative  of  the  debtor  that  he  must  be  governed  by  the  ex- 
press terms  of  the  trust ;  he  cannot  indirectly  modify  the  provisions 
of  the  assignment.-  The  doctrine  generally  prevails  in  the  Ameri- 
can states,  that  unless  prohibited  by  statutes,  voluntary  general 
assignments  by  failing  debtors  for  the  benefit  of  their  creditors, 
even  when  preferring  individuals  or  classes  among  the  beneficiaries, 
are  valid.  The  necessary  delay  incident  to  the  execution  of  the  trust 
is  not  within  the  meaning  and  scope  of  the  statute  which  avoids 
transfers   in  fraud  of  creditors." 

§  995.  Deeds  of  Trust  to  Secure  Debts. — A  special  form  of  trust 
for  the  benefit  of  creditgrs  peculiar  to  the  law  of  this  country  has 
become  quite  common  in  several  of  the  states,  and  requires  a  brief 
description.  A  "deed  of  trust  to  secure  a  debt"  is  a  conveyance 
made  to  a  trustee  as  security  for  a  debt  owing  to  the  beneficiary, 

'Moses  V.  :\Iuroatroy(l,  1  Johns.  Cli.  119,  129,  7  Am.  See.  478;  Golden's  Appeal, 
110  Fa.  St.  581,  1  Atl.  660.  The  doctrine  which  generally  prevails,  in  tlic 
aljsence  of  statutory  rcguhitions,  seems  to  be  ■  s  L"^lic/.s:  A  creditor  is  not 
bound  to  accept  the  provision  made  in  his  behalf^  :i:;  -•  '-oa:;.  the  aTsignment  pre- 
clude him  from  suing  the  debtor  and  obtaining  a  judgmont  upoa  hi^j  claim;  but  he 
can  not  roach  the  assigned  propcrtt/  in  satisfactioi.  ^  .  his  judgment,  unless 
he  is  able  to  procure  the  assignment  to  Ij  set  a';.-:)  as  fraudulent  against 
creditors.  In  many  of  the  states  the  acceptanc :  jy  lie  creditor  of  the  pro- 
vision made  in  the  assignment  in  part  payment  oC  'lis  demand  will  not  prevent 
liim  fi'om  subsequehtly  enforcing  the  balance  of  ilie  claim  against  the  debtor's 
after-acquired  property,  since  the  assignment  is  purely  voluntary,  and  is 
not  per  se  a  composition  with  creditors,  nor  does  it  operate  as  a  discharge  in 
Ijankruptcy.  A  clause  inserted  in  the  assignment  to  the  effect  that  a  creditor 
must  release  and  discharge  his  entire  demand  as  a  condition  to  his  claiming 
any  benefits  under  the  trust  is  held  in  many  states  to  render  the  whole  assign- 
ment voitl,  on  the  ground  that  it  necessarily  hinders  and  delays  creditors. 
.Such  ])rovisions,  however,  seem  to  be  sustained  as  valid  and  operative  by  tlie 
courts  of  other  states:  Clayton  v.  Johnson,  3(>  Ark.  406,  38  Am.  Rep.  40 
(valid);  Collier  v.  Davis,  47  Ark.  307,  58  Am.  Rep.  758    (void), 

-In  re  Lewis,  81  X.  Y.  421. 

••'Estes  V.  (iunter,  122  U.  S.  450,  7  Sup.  Ct.  Rep.  1275,  30  L.  ed.  1228.  The 
validity  of  the  assignment  depends  upon  the  question  whether  it  falls  within  the 
inhioitions  of  the  statute  of  13  Eliz.,  c.  5,  and  analogous  statutes  of  the  Amer- 
ican states.  If  executed  with  an  actual  intent  to  hinder,  delay,  or  defraud 
creditors,  as  shoAvn  by  extrinsic  evidence,  or  if  it  contains  provisions  which 
necessarily  operate  to  hinder  or  delay  creditors,  and  therefore  raise  a  con- 
clusive presumption  of  siu-h  an  intent,  the  assignment  will  be  declared  void. 
Various  provisions  have  been  thus  condemned  by  the  courts,  although  there  is 
not  a  perfect  imiformity  among  the  decisions.  A  provision  which  creates  a 
trust  in  favor  of  the  debtor  himself,  to  be  operative  before  all  tlie  creditors 
are  fully  paid,  will  always  render  the  assignment  void:  See  Austin  v.  Bell.  20 
Johns.  442,  11  Am.  Dec.  297;  Grover  v.  Wakeman,  11  Wend.  187,  201,  203, 
25  Am.  Dec.  624,  4  Paige  23. 


567  EXPRKSS     I'KIVATK     TItUSTS.  §  99.5 

— a  creditor  of  the  grantor, — and  conditioned  to  he  void  on  pay- 
ment of  the  debt  by  a  certain  time,  but  if  not  paid  the  trustee 
to  sell  the  hind  and  apply  the  proceeds  in  extinguishing  the  debt, 
paying  over  any  surplus  to  the  grantor.  The  object  of  such  deeds 
is,  by  means  of  the  introduction  of  trustees,  as  impartial  agents 
of  the  creditor  and  debtor,  to  provide  a  convenient,  cheap,  and 
speed}'  mode  of  satisfying  debts  on  default  of  payment.^  A  dis- 
tinction, however,  should,  be  noted,  in  this  connection,  between 
unconditional  deeds  cf  trust  to  raise  funds  for  the  payment  of 
debts,  and  deeds  of  trust  in  the  nature  of  mortgages,  the  former  be- 
ing absolute  and  indefeasible  conveyances  for  the  purposes  of  the 
trust,  while  the  latter  are  conveyances  by  way  of  security,  subject 
to  a  condition  of  defeasance.-  In  many  states,  deeds  of  trust  to 
secure  debts  are  much  favored,  either  on  account  of  the  interven- 
tion of  disinterested  third  parties,  whose  position  as  trustees  secures 
to  the  debtor  fair  dealing,  or  the  absence  of  any  necessity  for  the 
intervention  of  the  courts;  though  in  some  states  they  are  required 
to  be  judicially  foreclosed,  and  are  therefore  of  no  practical  advan- 
tage. Indeed,  in  a  majority  of  the  states,  this  form  of  security 
has  come  into  general,  and  in  some  instances  universal,  use.  An 
intimate  relation  exists  between  deeds  of  trust  to  secure  debts 
and  mortgages,  especially  mortgages  containing  poAvers  of  sale;  in 
fact,  the  former  are  generally  considered  as  being  in  legal  effect 
mortgages.^  Where  a  mortgage  is  regarded  as  a  conveyance  of 
the  legal  estate,  a  deed  of  trust  can  be  no  less  a  conveyance  of 
the  legal  estate,  and  where  a  mortgage  is  considered  as  but  a  mere 
lien,  a  deed  of  trust  is  generally  considered  as  nothing  more  than 
a  lien."*  A  reconveyance,  as  a  general  rule,  is  not  necessary  on 
payment  of  the  debt  secured  by  a  deed  of  trust,  satisfaction  being 
entered  in  the  margin,  as  in  the  case  of  a  mortgage.  Statutes  relat- 
ing to  the  recording  of  mortgages  embrace  deeds  of  trust,  without 
special  mention  of  the  latter,  as  also  do  those  relating  to  powers 
of  sale  contained  in  mortgages.  "While  a  mortgage  with  power 
of  sale  may  be  assigned,  in  the  absence  of  words  restricting  an 
assignment,  and  the  power  of  sale  passes  thereby  to  the  assignee, 
a  deed  of  trust  to  secure  a  debt,  being  a  confidence  reposed,  cannot 
be  delegated,  and  no  assignment  is  possible,  without  an  express 
and  positive  permission  in  the  deed."     The  duties  of  the  trustee 

^Taylor  v.  Stearns,   IS  Gratt.  244,  278. 

-Hoflnian  v.  :\Iackall,  5  Ohio  St.  124,  130,  64  Am.  Dec.  037. 

s\Vebb  V.  Hoselton,  4  Neb.  308,  19  Am.  Rep.  G38;  Earth  v.  Deuel,  11  Colo. 
404,   19  Pac.  471. 

*  Flint,  ete.,  R'y  Co.  v.  Auditor  General,  41  ^licli.  03.").  Sec  Kocli  v.  IJriggs, 
14  C'al.  250,  73   Am.  Dee.   0.51. 

^See  Irish  v.  Antioch  College,  120  111.  03S.  9  Am.  St.  Pep.  03S,  18  X.  K.  708,. 
where  the  deed  provided  for  a  successor  to  the  trustee. 


§  997  EQUITY    JUItl.sPKUDEXCE.  558 

of  a  deed  of  trust  require  the  utmost  good  faith  and  impartiality 
as  regards  both  the  debtor  and  the  creditor.  He  is  personally  liable, 
in  a  suit  at  law  for  damages  to  the  party  aggrieved,  for  a  failure 
to  use  reasonable  diligence,  or  an  abuse  of  his  discretionary  powers ; 
and  a  sale  may  be  enjoined  or  set  aside  at  the  instance  of  the  in- 
jured party. **  It  is  not  necessary  that  the  person  who  is  to  execute 
the  power  in  a  trust  deed  should  join  in  the  deed,  or  execute 
any  formal  writing  showing  iiis  acceptance  of  the  trust  ;^  nor 
is  it  necessary  that  the  beneficiary  should  signify  his  assent  by  any 
formal  writing,  for  his  assent  is  presumed,  since  the  deed  is  for  his 
benefit.  Where  a  trustee  has  accepted  the  trust,  he  cannot  re- 
nounce it  without  the  consent  of  the' beneficiary,  or  of  a  court  of 
equity;  and  he  may  be  compelled  to  discharge  the  trust.^ 

§  996.  Voluntary  Trusts. — The  particular  question  to  be  examined 
under  this  head,  and  which  renders  it  one  of  such  great  practical 
importance,  is,  When  will  trusts,  and  transactions  in  the  nature 
of  trusts,  which  are  purely  voluntary,  virtual  gifts  be  treated 
as  binding  and  enforceable  in  equity?  The  answer,  it  will  be  seen, 
turns  upon  the  distinction  between  trusts  which  are  executed — 
that  is,  completely  created  or  declared — and  those  which  are  merely 
executory,  incomplete,— that  is,  promises  to  create  a  trust.  The 
full  discussion  of  the  subject  also  involves  the  difference  between 
assignments  perfect  and  imperfect,  and  declarations  of  trust.  Un- 
derlying the  whole  theory  of  voluntary  trusts  is  the  principle  that 
while  the  maxim.  Ex  nudo  pacto  non  oritur  actio,  operates  in  eciuity 
even  more  strictly  than  at  the  common  law,  so  that  a  promise  with- 
out any  valuable  consideration  has  no  binding  efficacy,  still  a 
valid  trust  may  be  created  without  any  valuable  consideration; 
if  a  trust  has  been  completely  declared,  the  absence  of  a  valuable 
consideration  is  entirely  immaterial.^  Another  principle  frequently 
applicable  in  cases  of  this  kind  is,  that  equity  generally  regards 
an  imperfect  conveyance  or  assignment  as  a  contract  to  convey 
or  assign;  but  whether  such  contract  is  binding  or  not  must  de- 
pend upon   the    cireumstances.- 

§  997.     The  General  Doctrine — Incomplete  Voluntary  Trusts  not 

'Mailer's  Adra'r  v.  Stone,  84  Va.  834.  10  Am.  St.  Rep.  880,  and  note.  6 
S.  E.  22:5. 

'Leffler  v.   Arnistrontr.   4  Iowa    482.  68  Am.  Dee.  072. 

«Com.  V.  Susquehanna,  etc..  Ey.  Co..  122  Pa.  St.  ^OC.  l.->  Atl.  448.  1  L.  R. 
A.    225. 

*Ex  parte  Pye,  18  Ves.  140,  Ames  Trusts  123;  Bath  Sav.  Inst.  v.  Hathorn. 
88  Me.  122,  .51  Am.  St.  Rep.  382.  33  Atl.  836,  32  L.  R.  A.  377.  H.  &  B.  400; 
Wagoner's  Estate.  174  Pa.  St.  ,5.o8.  ,52  Am.  St.  Rep.  828,  32  L.  R.  A.  766,  34 
Atl.   114. 

=<  Parker  v.  Taswell,  2  De  Gex  &  J.  559. 


559  EXPRESS    PRIVATE    TRUSTS.  §  997 

Enforceable. — The  general  doctrine  is  well  settled.  A  perfect  or 
completed  trust  is  valid  and  enforceable,  although  purely  volunta- 
ry. A  voluntary  trust  which  is  still  executory,  incomplete,  imper- 
fect, or  promissory  will  neither  be  enforced  nor  aided.^  In  order 
to  render  the  voluntary  trust  valid  and  effectual,  the  party  creating 
it,  tither  by  direct  transfer  or  by  declaration,  must  have  done  every- 
thing which,  according  to  the  nature  of  the  property  comprised  in 
jt,  was  necessary  to  be  done  in  order  to  transfer  the  property 
and  render  the  transaction  binding  upon  him.  A  person  holding 
propert}',  real  or  personal,  and  intending  to  make  a  voluntary 
disposition  thereof  for  the  benefit  of  another,  may  do  so  in  either 
one  of  the  three  modes:  1.  Pie  may  make  a  simple  conveyance 
or  assignment  of  it  directly  to  the  donee,  so  as  to  vest  in  the  latter 
whatever  interest  and  title  the  donor  has,  without  the  intervention 
of  any  trust;  2.  He  may  make  a  transfer  of  it  to  a  third  person 
upon  trusts  declared  in  favor  of  the  donee ;  3.  He  may  retain  the 
title,  and  declare  himself  a  trustee  for  the  donee,  and  thus  clothe 
the  donee  with  the  beneficial  estate.  In  either  of  these  modes, 
if  the  transaction  is  imperfect  and  executory,  equity  will  not 
aid  nor  enforce  it ;  and  if  the  intention  of  the  party  is  to  adopt  one 
of  the  methods,  a  court  of  equity  will  not  resort  to  either  of  the 
other  methods  for  the  purpose  of  carrying  it  into  effect.  When- 
ever the  party  intends  to  make  a  transfer  directly  to  the  donee, 
he  must  do  all  that  is  necessary,  according  to  the  nature  of  the 
property,  to  pass  and  vest  the  title,  by  valid  conveyance  in  case 
of  real  property,  and  by  valid  assignment  in  case  of  personal  prop- 
erty, and  generally  accompanied  by  an  actual  delivery  of  chattels 
and  things  in  action  where  the  donor  is  the  legal  owner.  Where 
the  donor  shows  an  intention  to  adopt  this  first  method,  and 
thus  to  vest  the  property  directly  in  the  donee,  and  the  act  of 
donation   is   simply   an   assignment   o'f  any   form,    hut   is  ini perfect 

^See  ]Milr<)y  v.  Lord.  4  De  Gex,  F.  &  J.  2fi4,  274,  Ames  Trusts  140;  Richards 
V.  Delhridge,  L.  R.  18  Eq.  11,  13,  Ames  Trusts  130,  H.  &  B.  385,  Shep.  204; 
Ex  parte  Pye,  18  Ves.  140,  Ames  Tinats  123;  Morgan  v.  Malleson,  L.  R.  10 
Eq.  475,  Ames  Trusts  129;  Colman  v.  Sarrel,  3  BroN\Ti  Ch.  12,  1  Ves.  50,  Ames 
Trusts  133;  Fortescue  v.  Barnett,  3  Mylne  &  K.  36,  Ames  Trusts  136;  Edwards 
V.  Jones,  1  Mylne  &  C.  220,  Ames  Trusts  140;  Donaldson  v.  Donaldson.  Kay  711, 
Ames  Trusts  146;  Richardson  v.  Richardson,  L.  R.  3  Eq.  686.  Ames  Trusts 
156:  Baddeley  v.  Baddoley.  L.  R.  0  Ch.  Div.  113.  Ames  Trusts  170;  In  re 
Breton's  Estate.  L.  R.  17  Ch.  Div.  418.  Ames  Tnists  171:  Clark  v.  Clark.  108 
:Mass.  522.  Ames  Trusts  2.32;  Young  v.  Young.  80  X.  Y.  422.  436.  36  Am.  Rep. 
634,  H.  &  B.  387;  Martin  v.  Funk.  75  K  Y.  134.  137.  31  Am.  Rep.  446.  H.  & 
B.  393:  Estate  of  Wehb.  40  Cal.  541.  545.  H.  &  B.  392;  Beaver  v.  Beaver.  117 
X.  Y.  421,  18  Am.  8t.  Rep.  531.  6  L.  R.  A.  403.  22  X.  E.  940.  H.  &  B.  396; 
Bath  Sav.  Inst.  v.  Hathorn,  88  Me.  122,  51  Am.  St.  Rep.  382.  33  Atl.  836,  32 
i.  R.  A.  377,  H.  &  B.  490. 


§  998  EQUITY     JURISPRUDEXCE.  560 

SO  that  it  does  not  pass  the  title,  a  court  of  equity  will  not  treat 
it  as  a  declaration  of  trust  constituting-  the  donor  himself  a  trustee 
for  the  donee;  an  imperfect  voluntary  assignment  will  not  be 
regarded  in  equity  as  an  agreement  to  assign  for  the  purpose  of 
raising  a  trust.  If  the  donor  adopts  the  second  or  third  mode, 
he  need  not  use  any  technical  words,  or  language  in  express  terms 
creating  or  declaring  a  trust,  but  he  must  employ  language  which 
shows  unequivocally  an  intention  on  his  part  to  create  a  trust  in 
a  third  person  or  to  declare  a  trust  in  himself.  It  is  not  essential, 
however,  that  the  donor  should  part  with  the  possession  in  the 
cases  where  he  thus  creates  or  declares  a  trust.  These  conclusions 
are  sustained  by  the  decided  weight  of  authority,  and  must  be 
regarded  as  the  settled  rules  of  equity  jurisprudence  upon  the 
subject.  The  general  doctrine  which  has  thus  been  explained 
may  find  its  application  under  two  different  conditions  of  fact: 
1.  Where  the  donor  is  the  absolute  owner  of  the  property,  holding 
the  legal  and  equitable  title  thereof ;  2.  Where  the  donor  is  only  the 
equitable  owner,  holding  only  the  equitable  estate,  the  legal  title 
being  vested  in  some  third  person  as  his  trustee.  These  two  con- 
ditions will   be  examined  separately. 

§  998.  Donor  the  Legal  Owner. — The  foregoing  general  conclu- 
sions determine  all  particular  questions  which  can  arise  under  this 
condition  of  fact.  If  the  donor  makes  a  complete  conveyance 
of  real  property  or  assignment  of  personal  property  suffi- 
cient to  vest  the  legal  title  in  the  donee ;  or  if  he 
completely  conveys  or  assigns  the  property  to  a  trustee 
upon  trusts  effectually  created  on  behalf  of  the  donee ;  or  if  he 
retains  the  legal  title,  but  effectualh^  declares  himself  a  trustee 
for  the  donee,  thus  clothing  the  donee  with  all  of  the  beneficial 
estate, — then,  in  each  of  these  instances,  the  gift  is  valid  although 
voluntary;  the  donee's  rights  are  perfect,  and  equity  will  enforce 
them  against  the  donor,  and  all  persons  claiming  under  him  as 
volunteers.^      Where  the  donor  has  the  legal  title,  and  the  property 

'  The  practical  question  always  is,  Avhether  the  conveyance  or  assignment 
is  sufficient  to  pass  the  legal  title;  or  whether  a  trust  has  heen  eftVctually 
created  or  declared.  While  no  particular  express  words  are  necessary  either 
to  create  a  trust  in  a  third  person,  or  to  declare  the  donor  a  trustee,  some 
words  unequivocally  showing  such  intent  are  indispensible.  A  mere  imperfect 
assignment,  without  words  indicating  an  intent  to  create  a  trust  or  to  declare 
the  donor  a  trustee,  can  not  be  construed  as  a  declaration  of  trust,  so  as  to 
raise  a  trust  in  the  donee's  favor,  which  equity  may  enforce.  Where  the 
siibject  matter  is  personal  property,  a  parol  declaration  of  trust,  if  otherwise 
sufficient,  is  effectual:  See  the  eases  cited  in  the  last  note.  I  add  the  facts 
of  a  few  instnictive  cases  by  way  of  illustration. 

In  :\Iilroy  v.  Lord,  4  De  Gex,  F.  &  J.  204,  Ames  Trusts   140,  A  OAraed  fifty 


561  EXPRESS    PRIVATE    TRUSTS.  §  99S 

is  of  such  a  nature  that  a  legal  estate  can  be  transferred, — that 
is,  is  land,  chattels,  money,  and  some  species  of  things  in  action, — 

shares  of  stock  of  a  bank,  which  stood  upon  the  books  of  the  bank  in  his  name. 
Bj'  the  charter  of  tlie  bank  its  shares  were  transferable  only  by  entry  made 
in  the  transfer-books  of  the  corporation.  A  executed  a  voluntary  deed,  by  wliicli 
he  purported  to  assign  these  shares  to  B,  in  trust  for  the  plaintiff,  C,  but  no 
transfer  was  made  upon  the  bank's  books.  Held,  that,  as  the  assignment  was 
incomplete  and  inoperative  to  pass  the  legal  title  to  the  trustee,  B,  no  trust 
w^as  effectually  created  in  C's  favor;  and,  also,  since  the  plain  intention  was 
to  vest  the  trust  in  B,  and  not  to  constitute  the  donor  a  trustee,  the  assign- 
ment could  not  be  construed  as  a  declaration  of  trust  binding  the  shares  in  the 
donor's  hands.  In  Eichardson  v.  Richardson,  L.  R.  3  Eq.  G8(),  Ames  Trusts  156 
E,  by  a  voluntaiy  deed,  assigned  certain  specific  property,  and  "all  other 
the  personal  estate,  whatsoever  and  wheresoever,"  of  the  assignor  to  R  abso- 
lutely. At  the  date  of  the  assignment,  E  was  owner  of  certain  promissory  notes. 
These  notes  were  not  mentioned  in  the  assignment.  On  R's  death  these  notes 
Avere  found  in  his  possession,  but  not  endorsed  hy  E,  and  there  was  no  evidence 
of  any  delivery  of  the  notes  by  E  to  R.  Page  Wood,  V.  C,  held  that  although 
the  assignment  did  not  operate  as  such  to  pass  the  legal  title  to  the  notes, 
still  it  operated  as  a  declaration  of  trust  by  E  in  R's  favor,  and  R  thereby  became 
entitled  to  the  notes.  In  Morgan  v.  Malleson,  L.  R.  10  Eq.  475,  Ames  Trusts 
129,  S,  the  owner  of  a  certain  India  bond,  signed  the  following  voluntary 
instrument  and  delivered  it  to  JM,  but  did  not  deli\-er  the  bond  itself:  "I  hereby 
give  and  make  over  to  ^I  an  India  bond,  value  one  thousand  pounds."  On  tlie 
death  of  S,  a  contest  arose  between  INI  and  the  executors  of  S,  and  Lord 
Romilly  held  that  the  assignment  was  operative  as  an  effectual  declaration  of 
trust  in  M's  favor,  and  he  was  entitled  to  the  bond.  The  judge  said  that  the 
assignment  was  equivalent  to  the  words:  "I  undertake  to  hold  the  bond  for 
you."  These  two  cases  have  been  severely  criticised  both  in  England  and  in 
this  country;  they  must  be  regarded  as  conti-ary  to  the  doctrine  settled  by 
the  weight  of  authority,  and  as  virtually  overruled.  In  Richards  v.  Delbridge, 
L.  R.  18  Eq.  11,  Ames  Trusts  130,  H.  &  B.  385,  Shep.  204,  D,  who  owned  leasehold 
premises  and  a  stock  in  trade,  purported  to  make  a  voluntary  transfer  or  gift 
of  the  whole  to  his  grandson,  E,  by  means  of  the  following  memorandum,  which 
he  wrote  upon  the  lease  and  signed:  "This  deed,  and  all  thereto  belonging, 
I  give  to  E  from  this  time  forth,  with  all  the  stock  in  trade."  The  lease 
with  the  memorandum  was  then  delivered  to  E's  mother,  and  the  donor  soon 
afterwards  died.  Held,  that  there  was  no  A-alid  assignment  so  as  to  con- 
stitute a  perfected  gift,  and  that  thera  was  no  valid  declaration  of  trust. 

In  Martin  v.  Funk,  75  X.  Y.  134,  31  Am.  Rep.  44G,  H.  &  B.  393  Mrs.  Susan 
B.  deposited  in  a  savings  bank  a  sum  of  money  belonging  to  her,  declaring  at  the 
time  that  she  wanted  the  account  to  be  in  trust  for  the  plaintiff.  The  account 
was  so  entered  in  the  books  of  the  bank,  and  a  pass-book  was  delivered  to  her, 
containing  the  following:  '"i'lio  Citizens'  Saving  Bank,  in  account  with  Susan 
Boone,  in  trust  for  Lillie  Willard,  five  hundred  dollars."  :\lrs.  B.  retained 
possession  of  the  pass-book,  nnd  the  money  remained  in  the  bank  until  her 
death.  Plaintiff  was  ignorant  of  the  deposit  lentil  after  the  donor's  death. 
Held,  that  the  transaction  was  an  effectual  declaration  of  trust,  constituting 
the  donor  a  trustee  for  the  plaintiff,  and  clothing  the  plaintiff  with  the  beneficial 
ownership  of  the  money:  that  the  donor's  retention  of  flic  |)a-;-;-bo()k  was 
not  inconsistent  with  her  position  as  a  trustee,  and  that  notice  to  the  cestui 
que  trust  was  not  necessary  in  order  to  constitute  a  valid  trust.  In  Young 
36 


§  999  EQUITY     JURISPRUDENCE.  562 

an  imperfect  conveyance  or  assignment,  which  does  not  pass  the 
legal  title,  will  not  be  aided  or  enforced  in  equity..  But  if  the 
property  is  not  of  such  a  nature  that  the  legal  title  can  be  trans- 
ferred, then,  if  nothing  more  remains  to  be  done  or  can  be  done 
by  the  grantor  or  donor, — if,  as  far  as  he  is  concerned,  the  convey- 
ance or  assignment  is  complete,  and  he  has  done  all  that  is  neces- 
sary to  be  done,  having  regard  to  the  nature  of  the  property, — 
the  conveyance  or  assignment  will  be  effectual  in  equity,  and  will  be 
enforced  on  behalf  of  the  donee.-  It  should  be  observed,  however, 
that  by  recent  statutes  nearly  all,  if  not  quite  all,  legal  things  in 
action  have  been  rendered  assignable  at  law,  so  that  the  cases 
in  which  the  last-mentioned  rule  can  apply  have  been  very  much 
limited. 

§  999.  Donor  the  Equitable  Owner. — Where  the  donor  is  only  the 
ecjuitable  owner,  the  legal  estate  being  vested  in  a  third  person, 
he  may  make  a  voluntary  transfer  of  his  interest  by  conveyance  or 
assignment ;  and  if  he  has  done  all  that  is  within  his  power  to 
pass  the  property  directh^  to  the  donee,  or  to  declare  a  trust  in 
favor  of  the  donee,  the  donee 's  rights  will  be  protected  and  enforced 
by  a  court  of  equity.^  Also,  the  donor  holding  the  equitable  es- 
tate may  direct  the  trustee  in  whom  is  vested  the  legal  title  to  hold 
the  property  in  trust  for  the  donee;  and  this  will  create  a  valid 
trust  in  favor  of  the  donee,  and  will  clothe  him  with  the  beneficial 
interest,  even  though  the  direction  is  voluntary ;  and  it  is  not  neces- 

V.  Young-.  80  X.  Y.  422,  30  Am.  Rep.  6.']4.  H.  &  P,.  :587,  Young  placed 
certain  bonds  in  two  envelopes,  and  wrote  on  each  envelope  a  memorandum, 
signed  by  him,  that  a  specified  number  of  the  bonds  therein  belonged  to  his 
son  VV,  and  the  residue  to  his  son  J,  but  tliat  the  interest  to  become  due 
thereon  was  "owned  and  reserved"  by  himself  during  his  life,  and  that  at  his 
death  "they  belong  al)solute]y  and  entirely  to  W  and  J  and  their  heirs."  The 
donor  showed  these  envelopes  and  memoranda  to  the  wives  of  his  sons,  and 
made  statements  to  them  expressing  his  intention  that  the  gift  was  to  be 
complete  and  valid.  Tjie  donor  retained  possession  of  the  envelopes  and  con- 
tents until  his  death,  about  a  year  afterwards.  Held,  that  there  was  no 
executed  and  valid  gift  passing  the  legal  title,  and  no  valid  declaration  of 
trust  constituting  the  father  a  trustee  for  the  donees.  In  Estate  of  Webb,  49  Cal. 
541,  H.  &  B.  '.id'l,  a  person  had  written  a  letter  to  his  sister,  in  which  he 
promised  to  assign  some  securities  to  her,  and  this  was  held  not  an  executed 
gift  nor  a  valid  trust. 

-  lUu.strations  of  the  first  class,  where  the  assignment  was  incomplete,  and 
the  donee  acquired  no  right:  Wadd  v.  Hazleton,  137  N.  Y.  215,  33  Am.  St.  Rep. 
707,  21  L.  R.  A.  693,  33  N.  E.  143.  Examples  of  the  second  class,  where  the 
donor  did  all  that  the  nature  of  the  property  admitted:  Edwards  v.  Jones, 
1  Mylne  &  C.  226.  238,  Ames  Trusts  140;  Fortescue  v.  Barnett,  3  Mylne  &  K. 
36,   Ames   Trusts    136. 

^Donaldson  v.  Donaldson.  Kay  711,  Ames  Trusts  146;  Tierney  v.  Wood, 
\9  Beav.   330,   Ames  Trusts   182. 


5G3  EXl'KKSS    PRIVATE    TRUSTS.  §  1000 

5aiy  that  the  trustee  should  give  his  assent.-  Finally,  the  holder 
of  the  equitable  estate  may,  by  a  sufficient  declaration  of  trust, 
constitute  himself  a  trustee  for  the  donee  with  respect  to  the  prop- 
erty, subject  to  the  same  limitations  which  apply  to  such  declara- 
tions of  trust  by  a  donor  who  holds  the  legal  estate.  In  conclusion, 
it  may  be  truly  said  that  each  case  of  voluntary  trust  or  transfer 
depends  largely  upon  an  interpretation  of  the  language  used  by  the 
donor;  whether  the  language  operates  as  a  complete  transfer,  or 
is  an  effectual  declaration  of  trust,  must  always  be  the  vital  ques- 
tion. 

§  1000.  Executed  and  Executory  Trusts. — This  distinction  be- 
tAveen  "executory"  and  "executed"  trusts  is  solely  concerned  with 
questions  of  construction  and  interpretation  of  the  instrument 
creating  the  trust,  and  of  enforcement  of  the  a'ust  thus  created, — 
namely,  whether  the  strict  rules  of  law  governing  limitations,  and 
especially  the  rule  in  Shelley's  case,  are  or  are  not  to  be  applied 
in  such  construction,  interpretation,  and  enforcement.  Whenever  a 
trust  is  executed,  it  i.s  always  construed  in  conformity  with  the 
strict  legal  rules  concerning  limitations  of  estates,  and  the  rule 
in  Shelley's  case  is  made  operative  if  the  terms  of  the  successive 
trusts  bring  it  within  that  rule,  even  though  the  apparent  inten- 
tion of  the  one  creating  the  trust  is  thereby  defeated.  Wherever 
a  trust  is  executory,  the  intention  of  the  party  is  followed  in  its 
construction  and  enforcement,  the  strict  legal  rules  concerning 
limitations  are  not  invoked,  and  the  rule  in  Shelley's  case  is  not 
permitted  to  operate.  Executory  trusts  and  questions  concerning 
them  ordinarily  arise  from  marriage  articles  or  inchoate  marria'^e 
agreements  in  which  a  complete  settlement  is  not  made,  but  the 
party  covenants  that  he  will  settle  property  or  convey  property 
upon  trusts  for  the  benefit  of  his  family,  and  from  wills  in  which 
the  testator  does  not  devise  property  upon  completed  trusts,  but 
devises  to  trustees  upon  trusts  for  them  to  settle  it.  In  these  and 
similar  instances  a  court  of  equity  is  called  upon  to  determine 
the  nature  of  the  settlements  to  be  made,  and  in  doing  so  it  carries 
out  the  intention  of  the  covenantor  or  testator,  actual  or  presumed, 
without  regard  to  the  strict  legal  rules  of  limitation.  As  such 
instruments  are  comparatively  infrequent  in  this  country,  and  the 
subject  rarely  comes  before  the  American  courts,  it  A\-ill  be  siiffi- 

-8ee.  also.  MfFaddon  v.  .Tonkyjis,  1  Pliill.  Ch.  1,53.  Ames  Trusts  47  (direction 
by  creditor  to  debtor  to  hold  tlie  debt  in  trust  for  another;  but  see  In  re 
Caplens  Estate,  4,5  L.  J.  Rep.  280,  Ames  Trusts  49).  A  receipt  in  the  form, 
"Received  of  B,  for  the  use  of  A.  one  hundred  pounds,  to  be  paid  to  A  at  B's 
death,"  a  sufficient  declaration  of  trust:  Moore  v.  Darton,  4  De  Gex  &  S.  517, 
Ames  Trusts  39. 


§  1002  EC^UITY     JUKlsriiUDENCE.    ^  564 

cient  to  state  the  more  general  doctrines  a^  established  by  decisions, 
without  going  into  any  minute  detail  of  special  rules. 

§1001.  Definition  and  Description. — A  trust  is  executed  when 
no  act  is  necessary  to  be  done  to  give  eil'ect  to  it  when  the  trust 
is  fully  and  finally  declared  in  the  instrument  creating  it.^  A  con- 
veyance of  land  to  A  in  trust  for  B,  a  devise  of  land  to  A  in  trust 
to  receive  the  rents  and  profits  and  apply  them  to  the  use  of  B, 
are  examples.  It  is  plain  that  all  ordinary  express  passive  or 
active  trusts  are  thus  executed.  A  trust  is  executory  when  some 
further  act  is  directed  to  be  done,  in  order  to  complete  and  per- 
fect the  trust  intended  to  be  created.-  .  .  . 

§  1002.  Powers  in  Trust. — ^Analogous  to  trusts  proper,  but  dif- 
fering from  them  in  one  essential  feature,  are  powers  ri  trust. 
In  a  true  trust  the  legal  title  is  in  and  by  its  creation  always  vested 
in  the  trustee,  but  to  be  held  for  the  benefit  of  the  beneficiary. 
In  a  trust  power,  as  distinguished  from  a  trust,  the  legal  title 
is  vested,  not  in  the  trustee,  but  in  a  third  person,  and  the  trustee 
has  authority  to  convey  or  dispose  of  the  property  to  or  for  or 
among  the  beneficiaries.  A  power  generally  is  an  authority  given 
to  A  to  convey  or  dispose  of  an  interest  which  he  docs  not  himself 
hold,  and  of  which  the  complete  legal  title  is  vested  in  another 
person,  B.  "Where  the  power  is  not  coupled  with  a  trust,  A  is 
clothed  with  a  complete  discretion  whether  he  will  or  will  not  ex- 
ecute it;  courts  of  equity  do  not  control  that  discretion;  if  he 
utterly  fails  to  make  any  appointment,  they  do  not  relieve  the 
expected  beneficiaries  to  or  among  whom  the  disposition  might 
have  been  made.  Where  the  power  is  in  trust,  A  may  have  some 
discretion  with  respect  to  the  mode  in  which  he  shall  exercise 
it,  with  respect  to  the  amounts  distributed  among  a  designated 
class  of  beneficiaries,  and  the  like;  but  he  has  no  discretion  as  to 
whether  he  will  or  will  not  exercise  it  at  all.  It  partakes  so  mui^h 
of  the  nature  of  a  trust,  that  an  obligation  rests  upon  him,  and  an 
equitable  right  is  held  by  the  beneficiaries, — a  right  which  equity 
recognizes,  and  to  a  certain  extent  protects;  so  that  if  A  does 
not  discharge  the  duty  resting  upon  him,  a  court  of  equity  will, 
to  a  certain  extent,  discharge  the  duty  in  his  stead.  A  trust  power 
may  therefore  be  defined  as  follows:  It  is  an  authority  given  to 
A  to  dispose  of  property  of  which  the  legal  title  is  held  by  B, 
to  or  among  a  specified  beneficiary  or  class  of  beneficiaries,  con- 
ferred in  such  terms  that  a  fiduciary  or  trust  obligation  rests  upon 
A  to  make  the  dis]K)sitioii.  although  he  iikii/  be  clothed  with  some 

'Stratton    v.    (Jildorslccve,    41    Atl.    1117     (New    Jersey);    Ciishing   v.    Blake, 
30  N.  J.  Eq.  (iSn. 

-Taylor  v,  Bnnvn,  112  da.  758,  38  S.  E.  G6. 


565  IIOAV    EXl'liKSS    TIM  STS     AI;E    {'lUUTED.  §  lOOG 

discretion  as  to  the  ainouiits  oi-  shares  which  he  sliall  confer  upon 
the  individuals  constituting  a  class  of  beneficiaries,  or  even  as 
to  the  persons  whom  he  shall  select  from  the  class  to  receive 
the  entire  benefit.  On  the  other  hand,  the  beneficiaries  may  be  so 
specified  that  no  discretion  with  respect  to  them  exists.^  When  the 
trust  power  is  of  such  a  nature  that  the  donee-trustee  is  authorized 
to  dispose  of  the  property  among  a  class,  and  is  clothed  with  a  dis- 
cretion, a  court  of  equity  will  not  interfere  to  control  that  discre- 
tion, or  interfere  with  the  mode  of  exercising  it,  if  he  does  in  fact 
make  an  appointment.  If,  however,  the  donee-trustee  fails  to  act 
at  all,  and  makes  no  appointment,  it  is  a  settled  rule  that  a  court 
of  ecpiity,  in  enforcing  the  power  on  behalf  of  the  beneficiaries, 
will  ahvays  decree  an  equal  distribution  of  the  property  among 
all  the  persons  constituting  the  class.- 


SECTIOX  III. 

HOW  EXPRESS  TRUSTS  ARE  CREATED. 

ANALYSIS. 

§   1006.  Trusts   of   real   property;    statute   of   frauds;    writing  necessary. 

§  1007.  \\'ritten  declaration  by  the  grantor;  ditto,  by  the  trustee;  ex- 
amples. 

§  lOOS.  Trusts  of  personal  property  may  be  created  verbally:  wliat 
trusts   are   not   within   the   statute. 

§  1000.  Words  and  dispositions  sufficient  to  create  a  trust;  examples. 
§§  1010-1017.  Express  trusts  inferred  by  construction,  sometimes  improperly 
called  "implied  trusts." 

§   1011.   1.  From    the    powers    given    to    the    trustee. 

§   1012.  2.  Provisions    for    maintenance;    examples. 

§   1013.  3.  To  carry  out  purposes  of  the  will. 

§   1014.  4.  From    "precatory"    words;    Knight    v.    Knight;    examples. 

§   lOl-^i.  ^lodern  tendency  to  restrict  this  doctrine;   in  the  United   States. 

§  lOlG.  \A'hat  intention  necessary  to  create  the  trust;  the  general  cri- 
terion ;  examples. 

§   1017.  Objections   to   the    doctrine. 

§  1006.  Trusts  of  Real  Property— Statute  of  Frauds.— Before  the 
statute  of  frauds,  trusts  of  real  as  well  as  personal  property  could 
be  created  or  declared — technically  averred — verbally.^  The  origi- 
nal statute  of  frauds  provides  that  "all  declarations  or  creations  lof 
trusts,   or   confidences  in   any  lands,   tenements,   or  hereditaments, 

'P.rowii  V.  Higgs,  8  Ves.  ,501,  .570. 

=  Harding  v.  GIjti,  1  Atk.  460,  2  Lead.  C'as.  Eq.  4th  Am.  od.  1833.  1848. 
1857,  Shep.  212,  Ames  Trusts  78;  Condit  v.  Bigalow,  04  N.  J.  Eq.  504.  54 
Atl.  160. 

'  It  seems,  however,  that  this  power  of  declaring  a  trust  of  land  verbally 
did   not   exist   when   the   land    was    convovcd    br   a    deed    absolute   on    its    face; 


§  1007  EQUITY     JLUrSPKlDKXCI-:.  5GG 

.shall  be  manifested  and  proved  by  some  wi'itin.u'  signed  by  the  party 
who  is  by  law  enabled  to  declare  the  trust,  or  by  his  last  will 
in  writing',  or  else  they  shall  be  utterly  void";  also,  that  "all  grants 
and  assignments  of  any  trust  or  confidence  shall  likewise  be  in  writ- 
ing, signed  by  the  party  granting  or  assigning  the  same,  or  by  such 
last  will  or  devise  [as  mentioned  in  §  5],  or  else  shall  likewise  be 
•  utterly  void."  This  last  clause  refers  to  assignments  by  the  cestui 
(pie  trust.  Analogous  statutes  have  been  enacted  in  the  American 
states.-  It  is  the  settled  doctrine,  in  interpreting  this  legislation,, 
that  a  trust  of  land  need  not  be  created  nor  declared  by  a  writing; 
it  need  only  be  manifested  and  proved  by  some  writing  duly  signed 
or  subscribed  by  the  proper  party;  and,  as  a  consequence,  this 
written  evidence  niay  be  a  separate  instrument,  either  simultaneous 
with  or  .subsequent  to  the  deed  of  conveyance,  and  may  be  very 
infornuil.'' 

§  1007.  Written  Declaration  by  the  Grantor,  or  by  the  Trustee. 
— The  written  evidence  of  the  trust  w^hieh  will  satisfy  the  statute 
iiKiy  come  from  the  grantor, — the  one  w^ho  intends  that  a  trust  shall 
be  created  for  a  certain  beneficiary, — or  from  the  trustee, — the 
grantee  to  whom  the  land  is  conveyed  for  the  purposes  of  the  trust, 
but  not  from  the  cestui  que  trust.  The  grantor  may  declare  the 
tmist  in  the  will  or  the  deed  by  which  the  land  is  conveyed  or 
devised,  or  in  an  instrument  separate  and  distinct  from  the  con- 
veyance; or  he  may  declare  himself  a  trustee,  and  that  he  holds 
the  land  in  trust,  without  conveying  the  legal  title. ^  When  the 
trust  is  not  created  in  and  by  the  instrument  of  conveyance,  it 
nuiy  be  sufficiently  declared  and  eviden<'ed  by  the  trustee  to  v,-honi 

only  applying  to  conveyances  by  feoffment  Avitliont  a.  deed:  See  Adlingt^.n  v. 
('ann,   3   Atk.    141,    149,    151. 

-29  Car.  11.,  c.  ."?,  sees.  7-9.  The  §  5  referred  to  in  the  clause  above  quoted, 
prescribed  tlie  mode  of  executing  a  will  of  land.  The  American  statutes 
differ  considerably  from  the  English,  and  among  tliemselves,  in  their  lan- 
guage. Still,  unless  tlie  terms  of  a  particular  statute  are  rudicallif  a  de- 
parture from  the  original  type,  and  are  mandators'  in  form,  requiring  tlie 
trust  to  be  created  by  the  conveyance  itself,  the  interpretation  adopted  liy 
the  English  courts  prevails  through  the  American  states.  The  various  >tat- 
utes  are  regarded  as  substantially  the  same:  Perry  on  Trusts,  sec.  Sl.  The 
statutes  of  frauds  in  a  number  of  the  states  have  omitted  the  paragraph  re- 
lating to  the  creation  or  declaration  of  trusts.  ^Ir.  Perry  enumerates  Con- 
necticut, Delaware,  Virginia,  North  Carolina.  Texas,  Tennessee,  Kentucky, 
Ohio,  and  Indiana.  To  these  should  be  added  West  Virginia:  See  Perry  on 
Trusts,    sec.    78,   note. 

To  the  effect  that  an  express  trust  in  lands  cannot  be  created  liy  parol,  see 
Oden   v.   Lockwood,    136   Ala.   .514,   33   South.   895. 

"  Stratton    v.    Edwards,    174    Mass.    374,    54    X.    E.    SS(). 

UJrann  v.  Coates,  109  Mass.  581,  H.  &  B.  3fi0;  Bates  v.  Hurd.  (15  Me.  180, 
H.  &  B.   368;   Tierney  -^  Wood,   19  Beav.  330,  Ames  Trusts   182. 


567  HOW    EXPRESS    TRLSrs    A1{E    CRHATED.  §  1009 

the  land  is  conveyed,  or  wlio  becomes  holder  oi"  the  legal  title ; 
and  this  may  be  done  b}^  a  writing  executed  simultaneously  with 
or  subsequent  to  the  conveyance,  and  such  writing  may  be  of  a  most 
informal  nature.-  The  trustee's  acceptance  of  the  trust  may  be 
express  by  his  executing  the  conveyance  or  other  instrument,  or 
by  assenting  to  the  will;  or  it  may  be  inferred  from  his  dealing 
with  the  property;  and  prima  facie  he  is  presumed  to  accept.'^ 
An  acceptance  by  the  trustee  is  necessary,  in  order  to  bind  him, 
but  not  in  order  to  validate  the  trust.  A  refusal  to  accept  or 
disclaimer  frees  the  trustee  named  from  any  duty  to  act  undei- 
the  trust,  but  the  rights  of  the  beneficiary  do  not  depend  upon 
his  acceptance.  A  court  of  equity  never  suffers  an  express  trust 
to  fail  from  want  of  a  trustee.* 

§  1008.  Trusts  of  Personal  Property  may  be  Created  Verbally. 
— The  provisions  of  the  statute  of  frauds  apply  to  chattels  real,^ 
but  not  to  money  secured  by  mortgages  and  other  charges  upon 
land.-  Nor  does  the  statute  extend  to  trusts  of  pure  personalt.v ; 
and  such  trusts  may  therefore  be  created,  declared,  or  admitted 
verbally,  and  proved  by  parol  evidence,  although  the  consensus  of 
authorities  demands  clear  and  unequivocal  evidence.^  Trusts  which 
arise  by  operation  of  law — resulting  and  constructive  trusts — are. 
in  express  terms,  excepted  from  the  statute. 

§1009.  Words  or  Dispositions  Sufficient  to  Create  a  Trust. — 
What  words  or  dispositions,  either  in  the  written  or  the  verbal 
declaration,  do  or  do  not  operate  to  create  a  trust?  It  is  assumed 
in  the  present  discussion  that  the  property  is  directly  convej^ed  to 
or  is  held  by  the  person  alleged  to  be  a  trustee.  In  the  first  place, 
as  has  already  been  shown,  a  mere  voluntary  promise  to  give  prop- 
erty in  trust  does  not  create  a  trust,  nor  any  right  which  a  court 
of  equity  will  enforce.^     In  the  second  place,  no  precise  form  of 

-Separate  written  luemorandura :  Bates  v.  Hurd,  G5  Me.  ISO,  11.  &  B.  .'J(iS. 
Letters:  De  Laurencel  v.  De  Boom,  48  Cal.  581.  Answer  of  defendant  in  an 
equity  suit:      McVay  v.  :\loVay,  43  X.  J.  Eq.  47,    10  Atl.    178,  H.  &  B.   370. 

^Montford  v.  Cadogan,  17  Ves.  485,  489,  19  Ves.  635,  638.  See,  also,  ]h»-\, 
§    1060. 

*  Adams  v.  Adams,  21  Wall.  185,  Ames  Trusts  227;  Sonley  v.  Clockniakcrs' 
Co.,  1  Br.  Ch.  Cas.  81,  Ames  Trusts  225;  Dodkin  v.  Brunt,  L.  R.  C  Eq.  580, 
Ames   Trusts   226. 

'Forster  v.   Hale,   3   Ves.   696. 

==Tapia  v.  DeMartini,  77  Cal.  383,  11  Am.  St.  Rep.  288,  19  Pac.  641. 

^McFadden  v.  Jenkyns,  1  Phill.  Ch.  153,  157,  Ames  Trusts  47;  Danser  v. 
Warwick,  33  N.  J.  Eq.  133,  Ames  Trusts  186  (parol  trust  as  to  a  bond 
and  mortgage). 

'Yoiuior  V.  Young,  80  N.  Y.  422,  36  Am.  Rep.  634,  11.  &  B.  387.  See  ante, 
§§   997,   998. 


§  1009  EQUITY    jrUJ.SPUlDENCE.  5G8 

words  is  necessary  to  create  a  trust,  but  the  intention  mnst  be 
clear.  The  fact  that  a  trust  of  land  is  created  must  not  only  be 
manifested  and  proved  b}'  a  writing  properly  executed,  but  it 
nuist  also  be  manifested  and  proved  by  such  a  writing  ^vhat  the 
trust  is.  The  declaration  of  trust,  whether  written  or  oral,  must 
be  reasonably  certain  in  its  material  terms;  and  this  recpiisite  of 
certainty  includes  the  subject-matter  or  property  embraced  within 
tlie  trust,  the  beneficiaries  or  persons  in  whose  behalf  it  is  created, 
the  nature  and  quantitj'-  of  interests  which  they  are  to  have,  and 
the  manner  in  which  the  trust  is  to  be  performed.  If  the  lan- 
guage is  so  vague,  general,  or  equivocal  that  any  of  these  necessary 
elements  of  the  trust  is  left  in  real  uncertainty,  then  the  trust 
must  fail.-  Xo  particular  technical  words  need  be  used ;  eveii 
the  words  "trust"  or  "trustee"  are  not  essential;  any  other  words 
which  unequivocally  show^  an  intention  that  the  legal  estate  was 
vested  in  one  person,  but  to  be  held  in  some  manner  or  for  some 
l)urpose  on  behalf  of  another,  if  certain  as  to  all  other  requisites, 
are  sufficient.  On  the  other  hand,  if  the  words  "trust"  or  "trustee" 
are  employed,  they  do  not  necessarily  show  an  intention  to  create 
or  declare  a  trust.  It  sometimes  happens  that  an  express  trust 
arises,  not  from  any  definite  words,  but  from  the  entire  dispositions 
contained  in  the  will,  deed,  or  other  instrument,  or  from  a  con- 
struction of  all  its  terms.  Some  examples  of  such  trusts,  both  in 
real  and  in  personal  property,  are  given  in  the  foot-note  as  illus- 
trations.^ 

-  It  does  not  follow  that  the  grantee,  devisee,  or  legatee  takes  the  prop- 
erty absolutely  free  from  the  trust  in  such  ease;  if  the  trust  attempted  to  he 
created  fails  for  reason  of  uncertainty,  and  the  instrument  shows  an  intention 
tliat  the  immediate  donee  was  not  to  take 'and  hold  the  befieficial  interest, 
tlieii  a  trust  Jesuits  to  the  donor:  See  post,  §  1032;  Smith  v.  Matthews.  3 
l)e  (;ex.  V.  &  J.  UU:  Sniitli  v.  Bowen.  35  N.  Y.  83  (the  words  "all  my  estate. 
!iotli  real  and  personal,  I  give  to  inr  wife,  to  he  used  and  disposed  of  at  her 
discretion  for  the  benefit  of  herself  and  my  daughters.  ]\L.  L.  and  A.,"  held 
to  create  a  trust  in  favor  of  the  daughters  with  respect  to  tliree  fourths  of 
llie  property).'  "Trust"  and  "trustee"  not  essential,  but  their  omission  viii/lif 
be  a  strong  evidence  of  the  intention:  Tobias  v.  Ketchum,  32  X.  Y.  31!).  '.Vll, 
:!2S.  H.  &  B.  374;  Smith  v.  Bowen,  35  N.  Y.  83;  and  "trust"  or  "trustee" 
do  not  always  show  a  trust;  Cleveland  v.  Springfield  Inst,  for  Sav.,  182  Mass. 
110.  (If)  X.  E.  27.  Sir  William  fJrant  said  in  Cruwys  v.  Colman.  0  Ves.  31!1, 
32:!.  that  three  things  are  indispensable  to  constitute  a  A^alid  trust:  1.  Suffi- 
cient words  to  raise  it;  2.  A  definite  subject;  and  3.  A  certain  or  ascertained 
object.  The  beneficiaries  need  not  be  named:  it  is  sufficient  if  they  can  be 
ascertained,  and  parol  evidence  is.  of  course,  admissible  in  case  of  a  latent 
ambiguity:      r4ilmer    v.    Stone,    120    U.    S.    5S(i,    7    Sup.    Ct.    Rep.    089. 

■"Trust  of  real  property:  Janes  v.  Throckmorton.  57  Cal.  368.  Trusts  of 
personal  property:  Alartin  v.  Funk,  75  X.  Y.  134.  31  Am.  Rep.  448,  11.  & 
B.  393:  Young  v.  Young,  80  X.  Y.  422,  30  Am.   Hep.  034.  H.  &   B.  387;    Hamer 


569  HOW     KXPKESS    TKLSTS     ARE    VHK.Vl'VA).  §  1011 

§1010,  Express  Trusts  Inferred  by  Construction. — There  is  an- 
other important  class  of  express  ti'iists,  whicli  are  not  directly 
and  expressly  declared  by  the  terms  of  the  instrument,  but  which 
are  inferred  by  a  construction  of  all  the  terms  and  dispositions. 
They  are  all  cases  where  the  court  infers  that  it  was  the  inten- 
tion of  the  party  to  create  an  express  trust  for  some  i)ur])ose,  al- 
though he  has  not  expressed  that  intention  in  une(iniv()cal  and 
direct  terms,  and  the  court  is  forced  to  gather  it  from  his  general 
expressions,  or  from  the  objects  and  purposes  of  his  gift.  When 
such  a  trust  is  found  by  the  court  to  have  been  intended  by  the 
party,  it  is  in  every  respect  a?i  express  active  trust, — has  no  resem- 
blance whatever  to  a  resulting  or  a  constructive  trust.  It  is,  in 
fact,  an  express  trust  which  the  donor  did  not  unmistakably  declare, 
but  which  the  court  has  helped  out  by  interpretation  and  inf(n*- 
ence.  To  call  this  class  "implied"  trust,  as  is  often  done,  is  not 
only  erroneous,  but  is  productive  of  confusion  and  mistake.  These 
trusts  ordinarily  arise  from  a  construction  of  the  language  of 
wills;  but  there  is  no  reason,  or  principle,  why  they  may  not  also 
arise  from  conveyances  and  agreements  inter  vivos. 

§1011.  1.  From  Powers  Given  to  the  Trustees. — Although  no 
trust  is  declared  in  express  terms,  nor  even  mentioned,  still  the 
intention  of  the  donor  to  create  the  trust,  and  the  existence  of  the 
trust  itself,  may  be  necessarily  inferred  from  the  powers  and  au- 
thority given  to  the  grantee,  and  in  case  of  wills,  even  when  no  es- 
tate is  directly  devised  to  the  executors,  but  the  whole  estate  is 
apparently  given  to  the  beneficiaries,  the  trust  may  be  necessarily 
inferred  from  the  powders  and  authority  conferred  u])on  the  ex- 
ecutors, and  thus  from  a  construction  of  the  entire  will  the  intention 
ma,y  be  shown  that  the  executors  are  to  take  the  legal  title  as 
trustees  of  an  express  active  trust.^     The  peculiarity  of  this  case 

V.  Sidway,  124  N.  Y.  538,  550,  27  N.  E.  256,  12  L.  R.  A.  4G3,  21  Am.  St. 
Rep.  693,  Ames  Trusts  33;  Beaver  v.  Beaver,  117  N.  Y.  421,  22  X.  E.  040, 
6  L.  R.  A.  403,  15  Am.  St.  Rep.  531,  H.  &  B.  396  (trust  not  inferred  from 
a  mere  deposit  of  nionej'  in  a  savings  bank  by  one  person  in  the  name  of 
another),  A  deposit  in  bank  of  a  sum  of  money  does  not  ordinarily  create 
a  trust,  but  gives  rise  to  the  relation  of  debtor  and  creditor  onlv  :  See  Carstair 
V.  Bates,  3  Camp.  301,  Ames  Trusts  12;  Ex  parte  Broad,  13  Q.  B.  D.  740. 
Ames  Trusts  19;  Shoemaker  v.  Hinze,  53  Wis.  116.  10  X.  W.  86,  Anns 
Trusts  29.  But  a  bank  deposit  may  be  made  as  a  special  (Icposit  in  sncli  a 
way  as  to  create  a  trust.  A  common  instance  is  that  of  the  deposit  of  a 
check,  or  draft,  for  collection:  See  Giles  v.  Perkins,  9  Ea.st.  12,  Ames  Trusts 
9;  Makesey  v.  Ramseys,  9  Clark  &  F.  818.  Ames  Trusts  13:  Commercial  Xat. 
Bank  v.  Hamilton  Xat.  Bank.  42  Fed.  880,  Ames  Trusts  15.  See.  also. 
Farley  v.  Turner,  26  L.  J.  Ch.  710,  Ames  Trusts  40;  In  re  Barned  Banking 
Co..   39   L.   .T.  Ch.   635.   Ames  Trusts  42. 

» Tobias  v.  Ketchum,  32  X.  Y.  319,  327-331.  H.  &  B.  374. 


§    1014  EQUITY    JUKISPHUDKXCE.  570 

is,  that  the  trust  arises,  and  the  legal  estate  is  vested  in  the 
trustees,  although  the  will  contains  no  disposition  by  which  the 
legal  estate  is  in  terms  devised  to  them.  The  doctrine  is  settled 
that,  in  dispositions  of  such  a  nature,  although  there  is  no  devise 
in  terms  to  them,  the  authority  conferred  by  the  Avill  upon  the 
executors  to  lease,  rent,  repair,  insure,  pay  taxes,  assessments,  and 
interest,  and  otherwise  manage  the  trust  property,  and  to  pay  over 
the  net  income  to  the  devisees  or  legatees,  necessarily  carries  the 
legal  title  to  the  executors,  and  creates  an  express  active  trust  in 
them.  It  is  a  familiar  doctrine  that  where  land  is  conveyed  or 
devised  to  trustees,  and  they  have  active  duties  to  perform,  they 
take  the  legal  estate ;  the  converse  is  also  generally  true,  that  where 
active  duties  are  prescribed  for  executors,  which  could  not  be  per- 
formed unless  the  legal  estate  is  vested  in  them,  they  are  in  fact 
made  trustees,  and  necessarily  take  the  legal  estate  for  the  purposes 
of  the  trust.'-' 

§  1012.  2.  Provisions  for  Maintenance. — X  second  species  oi  trust 
by  infei'enee  sometimes  arises  when  property  is  given  to  a  parent, 
or  person  in  loco  parentis,  with  no  trust  declared  in  terms,  but 
with  such  directions  for  the  maintenance  of  his  family  or  children 
as  enable  the  court  to  infer  an  intention  on  the  part  of  the  donor 
that  the  property  should  be  held  in  trust  for  the  purposes  of  the 
maintenance.  No  definite  rule  can  be  laid  down;  each  case  must 
stand  upon  its  own  circumstances.  If  the  language  is  sufficient 
for  the  intention  to  be  clearly  inferred,  the  trust  will  be  enforced ; 
otherwise  the  donee  will  take  an  absolute  estate,  and  the  provisions 
concerning  maintenance  will  be  regarded  as  mere  motives  for  the 
gift  and  reconnnendations  addressed  to  his  discretion.^ 

§  1013.  3.  To  Carry  out  the  Purposes  of  the  Will— Trusts,  or  at 
least  powers  in  trust,  are  sometimes  inferred  from  the  terms  of  a 
will,  when  an  intention  to  create  the  same  i.s  necessary,  in  order 
to  carry  out  the  directions  and  purposes  of  the  testator.  For  ex- 
ample, when  a  trustee  is  ordered  to  pay  certain  inoneys,  but  no 
property  is  given  him  with  which  to  make  the  payments,  or  when 
executors  are  ordered  to  sell  the  real  estate,  or  the  real  estate  is 
charged  with  the  pajonents  of  the  testator's  debts, — in  these  and 
similar  cases  a  trust,  or  a  power  in  trust,  may  be  inferred,  in  order 
that  the  trustee  or  executor  may  carry  the  directions  into  effect.^ 

§  1014.  4.  Precatory  Words. — The  most  common  and  important 
sjK'cies  of  trusts  I)y  inference  are  those  which  arise  where  a  testator 

=  Mott    V.    Buxton.    7    Ves.    201. 

MVoods  V.  Woods.  1  Mylne  &  C.  401;  Bloiiin  v.  Thanpuf.  SI  Me.  176,  16 
Atl.  540. 

^Blatch    V.    Wilder.    1   Atk.   420;    Walker    v.    Whiting,    23    Pick.    313. 


571  HOW    KXl'ltESS    TKUSTS    AUK    CREATED.  ^  1016 

has  given  property  to  a  devisee  or  legatee,  and  has  accompanied  his 
gift  with  precatory  words  or  phrases,  implying  his  desire  or  wish 
that  the  property  sliould  be  used  for  the  benefit  of  some  desig- 
nated person  or  persons,  or  should  be  applied  to  some  designated 
purpose.^  Words  expressing  direction,  recommendation,  entreaty, 
confidence,  hope,  expectation,  desire,  wish,  request,  and  the  like, 
are  inchided  under  the  denomination  "precatory."  As  a  most 
general  statement  of  the  rule,  if  such  words  are  strong  enough  to 
indicate  the  intention,  and  this  intention  is  not  defeated  by  other 
provisions  of  the  will,  the  court  infers  that  the  property  was  given 
on  trust  for  the  person  or  object  indicated,  and  will  enforce  such 
trust,  according-  to  its  nature,  as  a  similar  tiiist  declared  in  express 
terms  would  be  enforced." 

§  1015.  Modern  Tendency  to  Restrict  the  Doctrine. — I  shall  not 
attempt  any  analysis  and  classification  of  the  cases  for  the  purpose 
of  formulating  more  specific  rules.  This  has  been  done,  as  far  as 
practicable,  in  the  various  treatises  upon  trusts.  The  decisions  are 
numerous  and  conflicting.  Judges  have  for  some  time  past  shown 
a  decided  leaning  against  the  doctrine  of  precatory  trusts,  and 
a  strong  tendency  to  restrict  its  operation  within  reasonable  and 
somewhat  narrow  bounds;  many  of  the  earlier  decisions  would 
certainly  not  be  followed  at  the  present  day.  The  courts  of 
this  country  have  generally  adopted  the  doctrine  substantially  as 
settled  in  England,  although  perhaps  with  some  caution  and  re- 
serve, and  they  all  exhibit  the  modern  tendency  to  limit  rather 
than  enlarge  its  scope;  while  in  a  few  of  the  states  the  doctrine 
has  been  accepted  with  great  reluctance,  and  only  to  a  partial  ex- 
tent and  in  a  modified  form.^ 

1016.  What  Intention  Necessary — The  General  Criterion. — 
"Whether  or  not  a  trust  has  been  created  in  any  particular  case 
is  entirely  a  question  of  interpretation  and  construction.  The  in- 
tention must  be  sought  for  not  only  in  the  precatory  words  them- 
selves, but  also  in  the  tenns  and  qualifications  of  the  gift,  the  pow- 
ers of  disposition  or  enjoyment  conferred  upon  the  first  taker,  the 

^Knight  V.  Kniglit,  .3  Bear.  148.  172-174,  11  Clark  &  F.  513,  per  I^ord 
Langdale. 

=  Malim  v.  Keigliley,  2  Yes.  .3:5:5.  33.").  Ames  Trusts  83:  Stead  v.  .Mellor.  L. 
R.  5  Ch.  Div.  225,  Ames  Trusts  91;  Lambe  v.  Eanies.  L.  R.  10  Eq.  267,  6 
Ch.  597.  Ames  Trusts  85;  Harding  v.  Glyn,  1  Atk.  409,  Sli.  212,  Ame.s  Trusts 
78;  Harland  v.  Trigg,  1  Brown  Ch.  142,  Ames  Trusts  79;  Gregory  v.  Edmon- 
son,  39   Ch.   Div.   253,   Ames   Trusts   95. 

MVarner  v.  Bates.  98  Mass.  274,  277,  H.  &  B.  377;  Colton  v.  Colton.  127 
U.  S.  300,  8  Sup.  Ct.  1164.  .32  L.  Ed.  138;  Ellis  v.  Ellis's  Adm'rs,  1.1  Ala. 
296,  50  Am.  Dec.  132  j  Boyle  v.  Boyle,  152  Pa.  St.  108,  34  Am.  St.  Rep. 
629,  25   Atl.  494. 


§  1017  EQUITY  JURISPKUDEXCE.  572 

nature  of  the  property,  the  description  of  the  supposed  beneficiaries, 
and  all  the  other  context.  Precatory  words  may  be  used  which, 
standing  alone,  would,  under  the  decisions,  create  a  trust;  but 
they  may  be  qualified  and  controlled  by  other  expressions  showing 
that  the  gift  is  absolute,  and  that  everything  is  left  to  the  discretion 
of  the  devisee  or  legatee.  Each  case  must  therefore  turn  upon 
its  own  circumstances,  and  not  a  little  upon  the  sentiments  and 
prepossessions  of  individual  judges.  "With  respect  to  the  essential 
elements  which  must  exist  in  every  precatory  trust,  it  is  impossi- 
ble to  add  anything  to  the  clear  and  accurate  statement  of  Lord 
Langdale,  in  the  case  of  Knight  v.  Knight,  already  quoted.  Those 
essentials  are  the  imperative  nature  and  meaning  of  the  precatory 
words,  the  certainty  of  the  subject-matter  or  property  embraced 
in  the  trust,  and  the  certainty  of  the  objects  or  intended  bene- 
ficiaries. Upon  the  authority  of  the  more  modern  decisions,  the 
whole  doctrine  may  be  summed  up  in  a  single  proposition :  In  order 
that  a  trust  may  arise  from  the  use  of  precatory  words,  the  court 
must  be  satisfied  from  the  words  themselves,  taken  in  connection 
with  all  the  other  terms  of  the  disposition,  that  the  testators  inten- 
tion to  create  an  express  trust  was  as  full,  complete,  settled,  and  sure 
as  though  he  had  given  the  property  to  hold  up  on  a  trust  declared 
in  express  terms  in  the  ordinary  manner.  Unless  a  gift  to  A,  with 
precatory  words  in  favor  of  B,  is  in  fact  equivalent  in  its  meatiing, 
intention,  and  effect  to  a  gift  to  A,  "in  trust  for  B,"  then  certainly 
no  trustjghould  be  inferred.  The  early  decisions  proceeded  perhaps 
upon  a  more  artificial  rule,  and  saw  an  intention  in  the  use  of  words 
of  wish,  desire,  and  the  like,  where  no  such  intention  really  existed. 
The  modern  decisions  have  adopted  a  more  just  and  reasonable  rule, 
and  require  the  intention  to  exist  as  a  fact,  and  to  be  expressed 
in  unequivocal  language.  No  other  conclusion  can  be  reconciled 
with  the  general  principles  of  construction  which  are  based  upon 
reason  and  universal  experience.^  It  has  sometimes  been  stated 
as  a  general  rule  that  a  prima  facie  presumption  of  an  intention 
to  create  a  trust  arises  from  the  use  of  precatory  words.  Whatever 
may  have  been  true  of  the  earlier  cases,  the  modern  authorities 
do  not,  in  my  opinion,  sustain  any  such  rule ;  it  is  contrary  to  their 
Avhole  scope  and  tenor. 

§  1017.  Objections  to  the  Doctrine. — The  doctrine  of  precatory 
'rusts  has  never  met  with  unanimous  approval.  Able  judges  have 
dissented  from  it  on  principle,  have  pronounced  it  artificial,  and 

^  Stead  V.  Mellor,  L.  R.  ,5  Cli.  Div.  22;-).  Ames  Trusts  01;  Foose  v.  Whit- 
more,  82  N.  Y.  405,  37  Am.  Rep.  .^72;  Colton  v.  Colton.  127  U.  S.  300,  8 
Sup.  Ct.  Rep.  1164,  20  L.  Ed.  420;  Knox  v.  Kno.x,  59  \Yis.  172,  48  Am.  Rep. 
487,    18   N.    W.    155. 


573  HOW    EXPRESS    TRUSTS     ARE    CREATED.  §  1017 

have  described  it  as  violatinp;  instead  of  carryin<>-  out  tlie  intent 
of  parties;  and  nnduuhtedly  most  of  the  earlier  decisions  were  open 
to  this  criticism.  It  does  seem  strange  that  a  testator,  having 
a  full  and  settled  intention  to  create  a  trust,  should  adopt  a  mode 
which  at  best  seems  to  be  a  mere  sug-tj:estion  or  possible  inference, 
and  should  not  employ  the  familiar  method  of  creating  a  trust  by 
express  declaration.^  On  the  other  hand,  to  abrogate  the  doctrine 
altogether  would  be  introducing  a  rule  wdiolly  arbitrary  and  tech- 
nical, since  it  would  be  saying,  in  fact,  that  tnists  shall  not  be 
created  except  by  means  of  a  certain,  fixed,  and  technical  formula 
or  manner  of  expression.  Justice  will  be  done,  therefore,  if  the 
doctrine  is  placed  upon  reasonable  grounds,  its  operation  confined 
within  narrow  limits,  and  regulated  by  the  criterion  stated  in 
the  preceding  paragraph. 


SECTION  IV. 
PUBLIC    OR    CHARITABLE    TRUSTS. 


§  1018.  General  description. 

§   1010.  A  public,  not  a  private,  benefaction  requisite. 

§   1020.  What  are  charitable  uses  and  purposes:      "Statute  of  charitable 
uses." 
§§   1021-1024.  Classes    of    charitable    uses. 
§    1021.   1.  Relif»ious    purposes. 
§   1022.  2.  Benevolent  purposes. 
§    1023.  3.  Educ-ntioiial    ]nirposes. 
§    1024.  4.  Other    public    purposes. 

*  In  the  important  case  of  ^^leredith  v.  Heneage,  1  Sim.  542,  551,  before 
the  house  of  lords,  Chief  Baron  Richards  said,  speaking  of  prior  decisions: 
"I  entertain  a  strong  doubt  whether,  in  many  or  perhaps  in  most  of  the  cases, 
the  construction  was  not  adverse  to  the  real  intention  of  the  testator.  It 
seems  to  me  very  singular  that  a  person  who  really  meant  to  impose  the 
obligation  established  by  the  cases  should  use  a  course  so  circuitous, '  and  a 
language  so  inappropriate  and  obscure,  to  express  what  might  have  Ijeen  con- 
veyed in  the  clearest  and  most  usual  terms, — terms  the  most  familiar  to  the 
testator  himself,  and  to  the  professional  or  other  person  who  might  prepare 
his  will.  In  considering  these  cases,  it  has  always  occurred  to  me  that  if  I 
had  myself  made  such  a  will  as  lias  generally  been  considered  imperative,  I 
should  never  have  intended  it  to  be  imperative;  but  on  the  contrary,  a  mere 
intimation  of  my  wish  that  the  person  to  whom  1  had  given  my  property 
should,  if  he  pleased,  prefer  those  whom  1  proposed  to  him,  and  who,  next 
to  him,  were  at  the  time  the  principal  objects  of  my  regard."  He  also  says 
that  tlie  question  in  such  cases  "is  purely  a  matter  of  intention,  to  be  col- 
lected from  the  words  of  the  instnunent,  as  in  all  other  cases  of  wills."  The 
foregoing  language  of  tliis  learned  judge  should,  as  it  seems  to  me,  be  present 
to  the  minds  of  all  courts,  when  passing  upon  cases  of  precatory  trusts,  as 
a  proper  and  reasonable  guide  in   rendering  a   decision. 


§  1019  EQUITY  JURISPRUDENCE.  574 

f  1025.  Creation   of   the   trust:      Certainty   or   uncertainty   of   the   object 

and   of  the  beneficiaries. 
§  1026.  Certainty  or  uncertainty  of  the  trustees. 
%  1027.  Tlie   doctrine   of   ty-pres. 

%  1028.  Origin   and   extent   of   the   equitable   jurisdiction. 
§   1029.  Charitable  trusts  in  the  United   States. 

§  1018.  General  Description. — In  express  private  trusts  there  is 
not  onl}^  a  certain  trustee  who  holds  the  legal  estate,  but  there  is 
a  certain  specified  cestui  que  trust  clearly  identified  or  made  capable 
of  identification  by  the  terms  of  the  instrument  creating  the  trust. 
It  is  an  essential  feature  of  public  or  charitable  trusts  that  the  bene- 
ficiaries are  uncertain, — a  class  of  persons  described  in  some 
general  language,  often  fluctuating,  changing  in  their  individ- 
ual numbers,  and  partaking  of  a  quasi  public  character.  The 
most  patent  examples  are  "the  poor"  of  a  certain  district,  in  a 
trust  of  a  benevolent  nature,  or  "the  children"  of  a  certain  town, 
in  a  trust  for  educational  purposes.  In  such  a  case  it  is  evident 
that  all  the  beneficiaries  can  never  unite  to  enforce  the  trust;  for 
even  if  all  those  in  existence  at  any  given  time  could  unite,  they 
could  not  include  nor  bind  their  successors.  It  is  a  settled  doc- 
trine in  England  and  in  many  of  the  American  states  that  personal 
property  and  real  property,  except  when  prohibited  by  statutes, 
may  be  conveyed  or  bequeathed  in  trust,  upon  charitable  uses 
and  purposes,  for  the  benerit  of  such  uncertain  classes  or  portions 
of  the  public,  and  that  if  the  purposes  are  charitable,  within  the 
meaning  given  to  that  term,  a  court  of  ecjuity  will  enforce  the 
trust.  Furthermore,  it  is  one  of  the  most  important  and  distinctive 
features  of  charitable  trusts  that  however  long  the  period  may  be 
during  which  they  are  to  last,  even  though  it  be  absolutely  unlim- 
ited in  its  duration,  they  are  not  subject  to  nor  controlled  b^^  the 
established  doctrines,  nor  even  the  statutes  which  prohibit  perpetu- 
ities. Indeed,  it  may  be  said  that  the  full  conception  of  a  charitable 
trust  includes  the  notion  that  it  is  or  may  be  perpetual. 

§  1019.  A  Public,  and  not  Private,  Benefaction  Requisite. — In 
order  that  a  trust  may  be  charitable,  the  gift  must  be  for  tlie  Dene- 
fit  of  such  an  indefinite  class  of  persons  that  the  charity  is  really 
a  public,  and  not  a  mere  private,  benefaction.  On  the  other  hand, 
in  a  public  trust  the  designation  of  the  charitable  use  and  of  the 
beneficiaries  must  be  sitfficiently  certain  and  descriptive  to  indi- 
cate the  intention  of  the  donor;  the  language  must  not  be  so  general 
and  vague  as  to  leave  hotJi  fJw.  hencjiciaries  and  the  purposes  and 
objects  completely  to  the  jiulgment  and  choice  of  the  trustee  or  of 
the  eourt.^ 

^Morice   v.    Bishop    of   Durham.    0    Ves.    300,    40.5.    10    Ves.    .i22,    541,   Ames 


5'i5  PUBLIC    OK    CliARlTABLK    TRUSTS.  §  1020 

§  1020.  What  are  Charitable  Uses  and  Purposes — ' '  Statute  of 
Charitable  Uses."- — It  is  the  question  of  primary  importance,  ujion 
which  all  others  depend,  to  determine  what  uses  and  purposes  are 
charitable,  witliin  the  meaning  of  the  doctrine,  so  that  gifts  for  such 
purposes  may  be  sustained  as  valid  charitable  trusts,  although 
they  may  tend  to  create  perpetuities.  It  has  already  been  shown 
that  the  purpose,  whatever  be  its  particular  object,  must  benefit 
some  indefinite  class  or  portion  of  the  piihlic;  for  mei-c  private  chari- 
ties are  governed  by  the  rules  Avhich  apply  to  ordinary  private 
express  trusts.  The  general  objects  which  come  within  the  de- 
scription of  "charitable  uses,"  and  which  may  therefore  constitute 
a  valid  charitable  trust,  were  enumerated  in  the  statute  of  charitable 
uses,  passed  in  the  reign  of  Queen  Elizabeth,^  as  follows:  "The 
relief  of  aged,  impotent,  and  poor  people;  the  maintenance  of 
maimed  and  sick  soldiers  and  mariners;  the  support  of  schools  of 
learning,  free  schools,  and  scholars  of  universities ;  repairs  of 
bridges,  ports,  havens,  causeways,  churches,  sea-banks,  and  high- 
ways; education  and  preferment  of  orphans;  the  relief,  stock,  and 
maintenance  of  houses  of  correction;  marriage  of  poor  maids;  aid 

Trusts  105:  \i(lal  v.  (;irai<l.  2  How.  127,  11  L.  eel.  205.  In  Jackson  v.  Pliillips, 
14  Allen  539,  55(1,  H.  &  B.  410,  Gray,  J.,  said:  "A  charity  is  a  gift  to  be 
applied,  consistently  Avitli  existing  laws,  for  the  benefit  of  an  indefinite  nnnihcr 
of  persons,  either  by  bringing  their  minds  or  hearts  under  the  inlluence 
of  education  or  religion:  by  relieving  tlicir  bodies  from  disease,  suffering, 
or  eontraint;  by  assisting  them  to  establish  themselves  In  life;  or  by  erecting 
or  maintaining  public  works;  or  otherwise  lessening  the  burdens  of  govern- 
ment." This  may  not  be  an  exhaustive  description  of  charitalile  purposes, 
but  it  accurately  states  the  essential  element  that  the  gift  must  be  for  an 
indefinite  f/a.s.s.  so  that  the  benefit  conferred  upon  tliem  is  in  its  nature  puldic. 

Trusts  for  private  objects  do  not  fall  within  the  denomination  of  char- 
itable trusts,  nor  under  the  jurisdiction  over  them,  and  are  void  if  they  create 
perpetuities;  as  those  for  the  erection  or  repair  of  private  tombs  or  moini- 
ments:  Estate  of  Gay,  1.38  Cal.  552.  04  Am.  St.  Rep.  70,  71  Pac.  707.  The 
question  has  often  arisen  on  bequests  to  Masonic  lodges,  mutual  benefit 
societies,  etc.  It  is  settled  in  England  that  a  "friendly"  or  mutual  benefit 
society  may  be  a  charity  when,  luider  its  rules,  distressed  circumstances  or 
poverty  is  necessary  to  entitle  a  member  to  the  benefits:  In  re  Lacy  (1809), 
2  Ch.  149;  but  where  a  wealthy  member  would  be  entitled  to  share  in  the  bene- 
fits equally  with  a  poor  member,  it  is  not  a  charity:  Cunnack  v.  Edwards 
(180(i),  2  Ch.  070. 

'  4.3  Kli/..  c.  4.  The  "charitable  trusts"  now  under  consideration  should 
be  carefully  distinguished  from  gifts  to  corporations  wliich  are  authorized 
hy  their  ciiarters,  or  other  statutes,  to  receive  and  liold  jiropcity.  and  apply 
it  to  objects  which  fall  within  the  genei'al  designation  of  charitable.  Such 
gifts  are  permitted  in  tlie  states  where  the  peculiar  doctrine  of  "charitable 
trusts"  has  been  abrogated,  and  they  are  regulated  by  the  general  rules  of 
law  applicable  to  all  corporations,  or  by  the  provisions  of  the  individual 
charter:      See  Wetmore  v.  Parker.  52  X.  Y.  450. 


§  1021  EQUITY  JLKISPKUDEXCE.  570 

and  help  of  young  tradesmen,  handicraftsmen,  and  persons  decayed ; 
relief  or  redemption  of  prisoners  and  captives;  aid  of  poor  in- 
habitants concerning  payments  of  fifteenths,  setting  out  of  soldiers, 
and  other  taxes."  It  will  be  seen  that  this  list  omits  some  most 
important  and  familiar  chal'itable  objects — as,  for  example,  the 
support  and  propagation  of  religion.  The  English  and  American 
courts  have  never  regarded  this  enumeration  as  exhaustive,  but  as 
designed  to  be  merely  illustrative.  Numerous  objects  analogous 
to  those  mentioned  in  the  statute  are  held  to  be  charitable.  The 
doctrine  is  settled  that  all  particular  objects  embraced  vv'ithin  the 
general  spirit,  intent,  and  scope  of  the  statute  are  to  be  considered 
as  charitable,  unless  they  violate  some  rule  of  public  policy  or  the 
provisions  of  some  positive  statute. - 

§  1021.  Classes  of  Charitable  Uses. — 1.  Religious  Purposes. — 
in  addition  to  the  objects  specifically  enumerated  in  the  statute, 
otl'.er  purposes  of  a  like  general  nature  are  held  by  the  courts  to  be 
charitable,  and  these  may  all  be  arranged  in  the  following  classes: 
L'eligiovs  purposes:  The  support  and  propagation  of  religion  is  clearl}-- 
a  '"charitable  use."^  This  includes  gifts  for  the  erection,  mainte- 
nance, and  repair  of  church  edifices,  the  maintenance  of  worship, 
the  support  of  clergymen,  the*  promotion  and  propagation  of  re- 
ligious doctrines  and  beliefs  in  any  manner  by  the  church  or  by 
associations,  the  aid  of  missionary,  Bible,  and  other  religious  so- 
cieties, and  all  other  objects  and  purposes  which  are  really  religious. 
The  English  courts  made  an  exception  with  reference  to  supersti- 
tious uses,  but  in  the  United  States  no  such  distinction  is  made. 
Our  courts  would  recognize  no  difference  among  religious  beliefs 
jind  opinions;  but  in  this  countrjs  as  well  as  in  England,  a   gift 

-In  re  Foveaux  (1895),  2  Ch.  501.  Many  gifts  for  purposes  confessedly 
charitable  are  defeated  by  the  statutes  of  mortmain  in  England,  and  in  the 
s^tates  where  these  or  analogous   statutes   have  been   adopted. 

^  In  England  an  exception  is  made  of  "superstitious"  uses,  contrary  to 
the  public  policy,  svich  as  masses  for  the  soul.  In  the  United  States  no  sucii 
])urposes  would  probably  be  regarded  as  superstitious  which  were  recognized 
by  any  religious  belief  and  ritual:  Hoeflfer  v.  Clogan,  171  111.  462,  49  N.  E. 
527,  63  Am.  St.  Eep.  241,  40  L.  R.  A.  730;  but  it  is  sometimes  held  that 
such  a  bequest  is  invalid  because  for  a  private  purpose;  Festorazzi  v.  St. 
•Joseph's  Catholic  Church,  104  Ala.  327.  IS  South.  394,  53  Am.  St.  Rep.  48. 
25  L.  R.  A.  360.  It  has  been  intimated  that  the  promotion  of  infidelity  is 
not  a  valid  charitable  purpose:  See  ^Manners  v.  Philadelphia  Library  Co.. 
93  Pa.  St.  165,  39  Am.  Rep.  741.  A  gift  "to  the  service  of  God"  is  not  too 
broad  to  be  enforceable:  In  re  Darling  (1896),  1  Ch.  50.  A  gift  to  "sisters 
of  charity"  is  valid,  but  a  gift  to  a  religious  society  which  exists  solely  for  the 
spiritual  improvement  of  its  own  members  is  one  for  a  private  purpose:  Cocks 
V.  Manners,  L.  R.  12  Eq.  574.  Mere  hospitality  to  traveling  ministers  and 
others  of  the  donor's  religious  denomination  has  been  held  not  to  be  a 
cliaritable  purpose:      Kelly  v.   Nichols,   17   R.  I.   306.  21   Atl.   906. 


577  PUBLIC    OR    UllAKlTABLE    TKLSTrf.  §  102(> 

could  not  be  sustained  as  a  charity  for  religious  purposes  when  it 
was  wholly  irreligious,  and  its  only  object  was  to  destroy  all  re- 
ligion. 

§  1022.  2.  Benevolent  Purposes. — Numerous  trusts  for  pur- 
poses of  benevolence  aie  iiplu'ld  as  charitable,  although  not  men- 
tioned in  the  statute,  since  they  are  within  its  spirit  and  intent.' 
Among  the  particular  instances  embraced  within  this  class  are  trusts 
for  the  "poor,"  the  "deserving  poor,"  widows  and  orphans  of  a 
specified  town,  district,  or  country;  for  hospitals,  asylums,  and 
similar  public  institutions;  for  any  class  of  persons  requii'ing  aid, 
as  "the  colored  persons"  of  a  certain  state;  and  benevolent  ob- 
jects generally,  without  specifying  the  form.  Even  trusts  estab- 
lished for  the  donor's  own  "poor  relations,"  or  "poor  descendants," 
as  a  class,  are  held  to  be  true  charities.  The  beneficiaries  to  be 
relieved,  and  the  mode  proposed  for  aiding  them,  must  be  piiHic: 
a  trust  on  behalf  of  a  strictly  private  association,  the  benefits  of 
which  are  confined  to  its  own  members,  is  not  a  "charitable  trust." 

§  1023.  3.  Educational  Purposes. — Gifts,  devises,  and  becinests 
in  trust  for  educational  purposes  are  valid,  since  they  are  all  clearly 
within  the  spirit  of  the  statute.^  This  class  embraces  all  trusts  for 
the  founding,  endowing,  and  supporting  schools  and  other  similar 
institutions  which  are  not  strictly  private;  for  the  establishment 
of  professorships,  and  maintenance  of  teachers;  for  the  evlucatiou 

'It  should  be  noticed  tTiat  the  word  "benevolent"  is  here  used  in  its  popular 
sense,  including  a  large  number  of  purposes  which  are  recognized  as  charitable. 
The  words  "benevolence."  or  "benevolent  purposes,"  by  themselves,  have  been 
frequently  condemned  by  the  English  courts  as  too  broad  to  support  a  valid 
charitable  use.  These  English  cases,  however,  have  not  been  generally  followed 
in  this  country:  See  post,  notes  to  §  1025.  Examples  of  valid  charities:  for 
the  poor  of  a  certain  place  or  district:  Bishop  of  Hereford  v.  Adams,  7 
Ves.  324;  Hunt  v.  Fowler,  121  111.  2(;y,  12  N.  E.  331,  17  N.  E.  491,  H.  &  B.  438. 
For  the  donor's  "poor  descendants,"  as  a  class:  Gillam  v.  Taylor,  L.  K.  IG 
Eq.  581.  To  the  sick,  needy  or  disabled  members  of  certain  mutual  benefit 
associations:  Minns  v.  Billings,  183  Mass.  126,  66  N.  E.  593,  97  Am.  St.  Kep. 
420.     .See,  also.  Allen  v.  Stevens.  161  N.  Y.  122,  55  N.  E.  568.  H.  &  B.  430. 

^Clement  v.  Hyde,  50  Vt.  716,  28  Am.  Rep.  522;  In  re  John's  Will,  30  Oreg. 
494,  47  Pac.  341,  36  L.  R.  A.  242  (for  maintenance  of  public  school)  ;  Almy 
V.  Jones,  17  R.  I.  265,  21  Atl.  616,  12  L.  R.  A.  414  (endowment  of  prizes  for 
promotion  of  art).  The  court,  in  passing  upon  the  validity  of  educational 
or  religious  gifts,  is  not  concerned  with  the  truth  or  falsity  of  the  opinions 
sought  to  be  propagated,  so  long  as  they  are  not  hostile  to  religion,  to  law, 
or  to  morals:  In  re  Foveaux  (1895),  2  Ch.  201  (gift  to  anti-vivisection 
society)  ;  George  v.  Braddock,  45  N.  J.  Eq.  757,  18  Atl.  881,  14  Am.  St.  Rep. 
754,  6  L.  R.  A.  511  (trust  upheld  for  circulation  of  the  writings  of  Henry 
George,  which  attacked  the  right  of  private  property  in  land).  But  see 
Jackson  v.  Phillips,  14  Allen  539.  IT.  &  B.  410.  which,  in  so  far  as  it  con-- 
demned  a  trust  for  the  advancement  of  woman  suffrage,  is  contrary  to  the 
current  of  authoiitv. 
37 


§  l()-^5  EQUITY     JUKISPKUUKXCE.  578 

of  designateti  classes  of  persons,  as  the  poor  children  of  a  town ; 
for  the  promotion  of  s(  ioiee  and  scientific  studies ;  and  ijenerally 
for  the  advancement  of  knowledge,  learning-,  and  education. 

§  1024.  4.  Other  Public  Purposes. — Other  public  purposes,  not 
in  the  ordinary  sense  henevolent,  umy  be  valid  charities,  since  they 
ai'e  either  expressly  mentioned  by  the  statute,  or  are  within  its 
p'ain  intent.  All  of  these  purposes  tend  to  benefit  the  public,  either 
of  the  entire  country  or  of  some  particular  district,  or  to  lighten 
t!ie  i^ublic  burdens  for  defraj'ing  the  necessary  expenses  of  local 
administration  which  rest  upon  the  inhabitants  of  a  designated  re- 
gion.^ 

§  1025.  Creation  of  the  Trust — Certainty  or  Uncertainty  of  the 
Object  and  of  the  Beneficiaries. — One  of  the  distinguishing  ele- 
ments of  a  "charitable"  as  compared  Avith  an  ordinary  trust  con- 
sists in  the  generality,  indefiniteness,  and  even  uncertainty  which 
is  permitted  in  describing  the  objects  and  purposes  or  the  benefi- 
ciaries. From  the  very  definition  of  a  "charitable  trust"  the  bene- 
ficiaries are  always  an  uncertain  body  or  class;  but  the  doctrine 
goes  further  than  this.  If  the  donor  sufficiently  shows  his  inten- 
tion to  create  a  charity,  and  indicates  its  g-eneral  nature  and  pur- 
l)ose,  and  describes  in  general  terms  the  class  of  beneficiaries,  the 
trust  will  be  sustained  and  enforced,  although  there  may  be  in- 
definiteness in  the  declaration  and  description,  and  although  much 
may    be   left    to    the    discretion    of    the    trustees.^      This    uncertainty, 

'Stuart  V.  City  of  Eastoii,  74  Fed.  854,  21  C.  C.  A.  14G,  30  U.  S.  App. 
238  (for  erection  of  court-house).  But  to  constitute  a  valid  charity,  benefit 
lo  tlie  public  must  be  the  direct,  and  not  a  remote,  object  of  the  jjift.  Henee, 
a  f,nft  for  the  encouracjement  of  a  mere  sport,  such  as  yacht  racing,  cannot  be 
supported  as  "cliaritable,"  although  the  sport  might  be  beneficial  to  the  j)ul)lic, 
as  in  the  particular  case  by  tending  to  train  sailors  and  encourage  ship- 
building:     In  re  Nottage    (1895),  2   Ch.  649. 

^  See  Lewis  v.  Allenby,  L.  R.  10  Eq.  COS.  It  is  a  Avell-established  rule  of  the 
English  courts  that  Avhere  there  is  a  gift  of  a  fund,  part  or  all  of  wliicli 
may,  at  the  discretion  of  the  trustees,  be  applied  to  an  indefinite  purpose 
■which  is  not  strictly  "charitable,"  the  whole  gift  fails.  This  highly  technical 
rule  has  frequently  been  deplored  by  judges  who  felt  themselves  bound  by 
its  authority;  and  is  the  more  unfortunate  in  its  results  on  account  of  the 
strictness  with  which  the  English  courts  condemn,  as  incapable  of  creating  a 
.jharity,  many  expressions  which,  in  popular  usage,  are  nearly  synonymous 
with  the  word  "charitable;"  because,  when  the  meaning  of  such  expressions  is 
closely  analyzed,  they  are  found  to  be  capable  of  embracing  objects  which 
.-annot  be  the  objects  of  a  valid  charitable  use.  Thus,  a  bequest  to  "objects 
j)f  liberality  and  benevolence"  was  invalid:  [Morioe  v.  Bishop  of  Durham.  0 
Ves.  399,  10  Ves.  321,  Ames  Trusts  195.  In  the  recent  case  of  In  re  :McDufr 
(1896),  .2  Ch.  451,  a  bequest  for  "charitable  or  philanthropic  purposes" 
v\'as  held  bad,  on  the  ground  that  the  word  "jihilanthropic"  had  never  been 
defined  by  the  courts,  and  might  possibly  include  objects  not  strictly  "char- 
itable." 


579  PUBLIC    oil    CIIVIUTABLE    TIUSTS.  §  103G 

liowever,  must  not  be  carried  too  far.  The  intention  of  the  donor 
to  create  some  kind  of  charity,  religious,  benevolent,  educational, 
or  otherwise,  must  ucvcr  be  left  uncertain.  It  must  sufficiently 
ajDpear  that  he  designed  to  establish  a  charity,  and  the  purpose 
must  be  indicated  with  sufficient  clearness,  to  enable  the  court,  by 
means  of  its  settled  doctrines,  to  carry  the  design  into  eii'ect.  Such 
is  the  well-established  English  doctrine,  and  the  court  strives  to 
carry  out  a  charity  if  at  all  practicable.  In  this  country,  the  doc- 
trine has  been  adopted  only  to  a  partial  extent.  In  a  few  of  the 
states  where  the  system  of  charitable  trusts  prevails,  the  English 
theory  seems  to  have  been  accepted  with  little  or  no  modification. 
In  most  of  the  states  more  certainty  in  defining  the  purposes  of 
the  charity  and  terms  of  the  trust,  or  in  designating  the  classes  of 
persons  who  are  intended  to  be  the  beneficiaries,  is  required,  in 
order  to  sustain  the  gift,  than  is  necessary  under  the  methods  of 
the  English  eourts." 

§1026.  Certainty  or  Uncertainty  of  the  Trustee. — Charitable 
trusts  also  differ  from  private  trusts  in  another  ver\'  important 
feature.  It  is  settled,  as  a  part  of  the  complete  system  prevailing 
in  England,  that  not  only  may  the  beneficiaries  be  uncertain,  but 
that,  even  where  the  gift  is  made  to  no  certain  trustee,  so  that  the 
trust,  if  private,  would  wholly  fail,  a  court  of  equity  will  carry 
tlie  trust  into  effect,  either  by  appointing  a  trustee  or  by  acting 
itself  in  the  place  of  a  trustee — that  is,  by  establishing  a  scheme 
for  accomplishing  the  design  of  the  donor,  as  though  the  legal  title 
had  vested  in  a  certain  trustee.  This  result  may  happen  in  various 
modes.  In  one  class  of  instances  the  same  rule  is  luerely  applied 
which  would  be  invoked  under  like  circumstances  to  regulate  tlu^ 
administration  of  a  private  trust.  Where  a  testator  has  expressly 
purported  to  give  the  property  to  a  trustee,  but  for  any  cause  the 
appointment  fails,  the  charitable  trust  will  still  be  enforced^     The 

invalid:  Nichols  v.  Allen,  130  Mass.  211,  39  Am.  Rep.  445;  Levesey  v. 
•  Foiu'S  (N.  .).  Kq.)  35  Atl.  1064.  Valid:  Hunt  v.  Fowiev,  121  111.  269,  12  N.  E. 
331,  17  N.  E.  491,  H.  &  B.  438;  Grant  v.  Saunders,  121  Iowa  80,  100  Am.  St. 
Rep.  310,  95  N.  W.  411;  St.  James'  Orphan  Asylum  v.  Shelby,  60  Nebr.  TIKI, 
84  N.  W.  273,  83  Am.  St.  Rep.  553;  Goodale  v.  Mooney,  00  X.  H.  528,  49  Am. 
Rep.  334;  In  re  Murphy's  Estate,  184  Pa.  St.  310,  39  Atl.  70,  03  Am.  S<. 
Rep.  802.  It  is  noticeable  that  the  American  courts  which  profess  to  follow 
the  English  eases  in  supporting  gifts  of  extreme  uncertainty,  such  as  gifts 
to  "charitable  objects"  generally,  have  either  repudiated  the  distinction  be- 
tween "oliaritable"  and  "benevolent"  or  kindred  words,  or  at  least  have  shown 
a  strong  inclination  to  infer  from  the  context  of  llie  will  that  such  words 
are  used  as  synonymous  with  "charitable";  see,  among  other  cases.  Fox  v. 
Oibbs,  86  Me.  87,  29  Atl.  940;  Goodale  v.  :Mooney,  supra;  In  n-  Murj)hy's 
Estate,    supra. 

*As  where  a  testator  gives  proper!}-,  lo  l)c  applied  in  clKuily  to  such  person 


§  1U"37  EQUi'iV     .JL'tilJSi'UL'DEXCE.  580 

doctrine,  however,  goes  much  farther  than  this  simple  rnJe,  which 
does  not  permit  a  trust  otherwise  valid  to  fail  for  want  of  a  desig- 
nated trustee.  It  also  applies  where  the  property  is  given  to  a  per- 
son or  body  incapable  of  tahing  and  liolding  in  perpetuity;  or  to  a 
body  uncertain,  indefinite,  and  fluctuating  in  its  members,  such  as 
an  unincorporated  society;  or  to  a  body  not  in  legal  being,  as  to 
a  corporation  not  in  existence;  and  even  where  there  is  no  person 
or  body  indicated  as  the  recipients  of  the  legal  title,  but  the  prop- 
iirty  is  merely  directed  to  be  applied  to  some  designated  charitable 
purpose,  the  performance  of  "which  direction  might  and  often  would 
necessarily  create  a  perpetuity."  This  is  one  of  the  most  important 
points  of  distinction  between  charitable  and  private  trusts;  for  it 
is  certain  that  at  law,  and  independently  of  the  peculiar  doctrine 
of  equity  on  this  subject,  gifts  to  charitable  uses,  without  a  certain 
and  competent  trustee  to  take  and  hold  the  legal  title — as  to  an 
luiincorporated  and  fluctuating  society — would  be  wholly  void." 
The  doctrine,  however,  is  rejected  by  the  courts  of  several  Ameri- 
can states,  which  admit  the  existence  and  validity  of  charitable 
trusts  only  in  cases  where  the  property  is  given  to  a  certain  and 
competent  trustee. 

§  1027.     The  Doctrine   of  Cy-Pres. — In   administering  charitable 


as  he  shall  hereafter  in  his  will  appoint  his  executor,  and  he  neglects  to 
appoint  any  one,  or,  having  appointed  one,  the  person  dies  in  the  testator's 
lifetime,  and  none  otlier  is  named;  or  the  testator  gives  his  property  to  sueli 
person  as  his  executor  shall  name,  and  no  executor  at  all  is  appointed,  or.  if 
appointed,  he  dies  in  tlie  testator's  lifetime;  of  if  the  property  is  given  to 
certain  trustees,  and  they  all  die  in  the  testator's  liftime,  or  the  trustee 
named  refuses  to  act,— in  all  such  cases  the  court  carries  out  the  intended 
charity  as  stated  in  the  text:  Att'y-Gen.  v.  Hickman,  2  Eq.  Gas.  Abr.  193. 
Ames  Trusts  224;  8oliier  v.  Burr,  127  Mass.  221;  In  re  John's  Estate,  30  Ore. 
494,  47   Pac.   341,   .50  Pac.  226,  36   L.   R.  A.  242. 

-  Cocks  v.  Manners,  L.  R.  12  Eq.  574.  There  is  a  fundamental  divergence 
between  two  classes  of  American  decisions  upon  this  question.  In  some  states 
the  English  doctrine  as  stated  in  the  text  is  adopted,  except  so  far  as  it  is 
enlarged  by  the  furtlier  and  distinct  doctrine  of  cy-pres;  in  others,  charitable 
trusts  ai-e  sustained  and  enforced  only  when  the  legal  title  to  the  property 
is  given  by  the  donor  to  a  certain  trustee  competent  to  take  and  hold  in 
perpetuity,  if  the  trust  creates  one.  The  following  cases  are  given  simply  as 
examples:  Gifts  to  unincorporated  societies  held  valid:  Hadden  v.  Dandy. 
.51  X.  J.  Eq.  154,  32  L.  R.  A.  025,  26  Atl.  464.  Gift  to  a  corporation  not 
yet  created,  but  its  incorporation  expected,  valid:  Coit  v.  C'omstock,  51 
Conn.  352,  50  Am.  Rep.  29.  Gift  to  the  treasurer  of  a  comity  and  his  succes- 
sors in  office,  the  income  for  aiding  poor,  held  valid:  Clement  v.  Hyde.  50 
Vt.  716.  28  Am.  Rep.  .522.  See,  also.  Hunt  v.  Fowler.  121  111.  269.  12  N.  E. 
331,  17  N.  E.  491,  H.  &  B.  438. 

^Baptist  Ass'n  v.  Hart's  Ex..  4  Wheat.  1.  (Gift  to  voluntary  association 
for    education    of    poor,    held    void    for    uncertainty   of   trustee.) 


581  rri'.Lrc  on  chauitaulk  tklsts.  §  1027 

gifts  the  English  courts  have  leaned  so  strongly  in  favor  of  sustain- 
ing the  trusts,  even  when  the  donor's  specified  purpose  becomes 
impracticable,  that  they  invented  at  an  early  day,  and  have  fully 
established,  the  so-called  doctrine  of  cy-pres.  The  doctrine  may 
be  stated  in  general  terms  as  follows:  Where  there  is  an  inten- 
tion exhibited  to  devote  the  gift  to  charity,  and  no  object  is  men- 
tioned, or  the  particular  object  fails,  the  court  will  execute  the 
trust  C3'-pres,  and  will  apply  the  fund  to  some  charitable  purposes, 
similar  to  those  (if  any)  mentioned  by  the  donor.  "If  the  donor 
declare  his  intention  in  favor  of  charity  indefinitely,  without  any 
specification  of  objects,  or  in  favor  of  defined  objects  which  happen 
to  fail  from  whatever  cause — even  though  in  such  eases  the  particu- 
lar mode  of  operation  contemplated  by  the  donor  is  uncertain  or 
impracticable — yet  the  general  purpose  being  charity,  such  pur- 
pose will,  notwithstanding  the  indefiniteness,  illegality,  or  failure 
of  its  immediate  objects,  be  carried  into  effect."^  In  the  first  kind 
of  cases,  where  the  donor  has  specified  no  object,  the  court  will 
determine  upon  some  scheme  which  shall  carry  out  the  general 
intention;  in  the  second  kind,  where  the  donor's  specified  object 
fiiils,  the  court  will  determ.ine  upon  another  object  similar  to  that 
ni'^ntioned  by  tlie  donor.  A  limitation  upon  the  generality  of  the 
doctrine  seems  to  be  settled  by  the  recent  decisions,  that  where  the 
donor  has  not  expressed  his  charitable  intention  generally,  but  only 
by  providing  for  one  specific  particular  object,  and  this  object 
can  not  be  carried  out,  or  the  charity  provided  for  ceases  to  exist 
before  the  gift  takes  effect,  then  the  court  will  not  execute  the 
trust;  it  wholly  fails.-  The  true  doctrine  of  cy-pres  should  not  be 
confounded,  as  is  sometimes  done,  with  the  more  general  principle 
which  leads  courts  of  equity  to  sustain  and  enforce  charitable  gifts, 
where  the  trustee,  object,  and  beneficiaries  are  simply  uncertain. 
There  is  a  radical  distinction  between  the  two,  although  the  doc- 
trine of  cy-pres  may  be  to  some  extent  an  expansion  or  enlarge- 
ijicnt  of  the  other  principle.^    In  the  great  majority  of  the  .\merican 

^Sinnett  v.  Herbert,  L.  R.  7  Ch.  232;  ]Minot  v.  Baker,  147  Mass.  348,  9 
Am.  St.  Rep.  713,  17  N.  E.  839;  Attorney-Gen.  v.  Briggs,  164  Mass.  ofil, 
42   N.   E.    118. 

-(ilailding  v.  St.  Matthew's  Church,  (R.  1.)  57  Atl,  800;  In  re 
White's  Trusts,  33  Ch.  Div.  449. 

^  Some  of  the  cases  in  which  the  court  has  professedly  relied  on  the  doc- 
trine of  cy-pres,  and  which  are  cited  as  illustrations  of  it,  in  a  preceding 
note,  seem  to  be  nothing  more  than  instances  in  which  trusts  with  uncer- 
tain trustees  or  objects  have  been  sustained.  The  suggestion  of  the  text  is 
not  merely  verbal;  it  has  a  practical  importance  in  this  country.  It  -hows 
that  the  courts  in  the  American  states  which  have  utterly  rejected  tlic  doc- 
trine   of    cy-pres    inajj    sustain    and    enforce    dmritable    trusts    wliidi    me    sim- 


§  1()-JS  EQUITY     JURISI'IIIDEXCE.  583 

Slates  the  courts  have  utterly  rejected  the  peculiar  doctrine  o^ 
cy-pres  as  inconsistent  with  our  institutions  and  modes  of  public 
administration.  A  few  of  the  states  have  accepted  it  in  a  modified 
and  partial  form.'* 

§  1028.  Origin  and  Extent  of  the  Equitable  Jurisdiction. — Such 
being'  the  general  nature  of  charitable  trusts,  the  origin  aiid  extent 
of  the  jurisdiction  over  them  remains  to  be  examined.  The  cpiesticni 
is  one  of  little  practical  importance  in  England,  since  the  jurisdic- 
tion is  there  exercised  as  though  it  Avere  entirely  derived  from 
the  statute  of  charitable  uses  of  Elizabeth.^  The  question,  however, 
))ecomes  of  vital  imi)ortance  in  this  country — is  absolutely  funda- 
mental— since  the  statute  of  Elizabeth  has  been  held  to  be  in  force 
in  but  a  very  few  of  the  states.  The  opinion  at  one  time  prevailed 
that  the  peculiar  equitable  jurisdiction  over  charities,  except  in 
cases  where  a  trust  valid  by  the  ordinary  lules  of  law  and  e(piity 
was  created,  was  derived  solely  from  the  statute."  Other  English 
judges  have  maintained  the  opinion  that  the  jurisdiction  in  its  full 
extent  was  possessed  by  the  court  of  chancery  by  virtue  of  its 
general  powers,  and  that  the  statute  had  only  the  effect  to  regulate 
that  jurisdiction,  and  to  define  more  distinctly  the  classes  of  objects 
which  are  charital)lc.  This  conclusion  has  been  sustained,  and 
even  demonstrated  as  correct,  by  the  researches  of  the  English 
record   commissioners."     The  question  has  been  repeatedly  passed 

ply  uncertain  in  tlieir  objects  or  their  trusteefs,  and  still  be  consistent  witli 
the   general    position   which   they   have   assumed. 

*  It  has  generally  been  said  that  the  doctrine  of  cy-pres  and  the  power  to 
enforce  it  belong  to  and  result  from  the  executive  authority  held  by  the 
English  chancellor  as  a  representative  of  the  crown  in  its  character  as  parens 
patriae,  and  are  not  a  ]>art  of  the  judicial  functions  possessed  by  the  court  of 
cliancery;  while  in  the  liiited  States  the  courts  are  clothed  with  judicial 
functions  only,  tiie  prerogative  belonging  to  the  parens  patriae  being  held 
])y  the  legislatures.  It  may  well  be  doubted,  I  think,  whether  this  view  is 
entirely  correct.  In  ]\Iornion  Church  v.  United  States,  136  U.  S.  1.  10  Sup. 
Ct.  792,  .'U  L.  ed.  47S.  the  (juestion  was  discussed,  and  it  was  held  that  tlie 
legislature  may.  at  any  rate,  delegate  such  power  to  the  court.  In  Massa- 
chusetts, where  the  cy-pres  doctrine  is  more  full  recognized  than  in  other 
states,  it  has  been  intimated  that  the  court  would  in  some  cases  exercise 
the  functions  which  were  traditionally  ascribed  to  the  chancellor  in  his  ex- 
ecutive capacity:  JMinot  v.  Baker,  147  Mass.  .348,  9  Am.  St.  Rep.  713,  17 
N.  E.  839.  See,  also.  Bullard  v.  Town  of  Shirley,  153  Mass.  559,  27  N.  E. 
706,    12   L.  R.   A.    110. 

M3   Eliz..   c.   4. 

-Baptist   Ass'n   v.   Hart's   Ex'rs,   4   Wheat.    1. 

^The  examination  of  the  ancient  records  of  the  court  of  chancery  by  the 
commissioners  has  disclosed  a  large  number  of  cases  brought  in  that  court 
and  decided  prior  to  the  statute,  in  which  charities  of  the  most  indefinite  am! 
gf^iieral    character    were    sustained,    thus    proving    that    tlie    court    then    cxer- 


.■3S;)  PLT.LIC    OK    CIIAUITAIILK     I'KLSTS.  §   IU'2'.) 

UDoii  by  the  American  courts.  AViierever  the  sj'steni  of  cliaritable 
trusts  has  been  accepted  at  all,  it  has  generally  been  held  that  the 
jurisdiction  belongs  to  equity-  as  a  part  of  its  ordinary  authority 
over  express  trusts,  and  is  not  referable  for  its  origin  to  the  statute 
of  Elizabeth.  This  conclusion  was  necessary  to  support  the  juris- 
diction in  a  great  majority  of  the  states,  since  that  statute  had 
not  been  adopted  as  a  part  of  their  local  legislation.* 

§  1029.  Charitable  Trusts  in  the  United  States.— With  regard  to 
the  extent  to  which  charitable  trusts  have  been  adopted  and  the 
jurisdiction  over  tliem  exercised  in  the  various  states,  there  is  the 
utmost  conflict  of  judicial  decision.  It  seems  pK)ssible,  however, 
without  attempting  any  strict  comparison  of  the  cases  or  any  mi- 
nute classifications  of  the  rules,  to  arrange  the  different  state's 
according  to  three  general  types,  which  shall  represent  with  rea- 
sonable accuracy  and  certainty  the  existing  condition  of  the  law 
on  the  subject  in  this  country.  First  class.  This  class  includes  those 
states  in  which  charital)le  trusts  have  been  abrogated  or  not 
^idopted.^  Either  from  a  statutory  abolition  of  all  uses  and  trusts, 
with  a  few  specified  exceptions,  or  from  the  general  provisions  of 
the  law  against  perpetuities,  or  from  the  general  policy  of  the 
state  legislation,  "charitable  trusts"  do  not  exist  at  all,  except 
where  they  are  merely  the  express  private  trusts  permitted  by  the 

■cised  the  same  kind  of  jurisdiction  Avhich  it  has  exercised  since  the  statute: 
See   Coop.   Pub.   Rec.   355. 

*The  position  above  stated  is  affirmed  in  the  same  positive  manner  by 
repeated  and  most  able  decisions  of  the  United  States  supreme  court:  Vidal 
V.  Girard's  Ex'rs,  2  How.  127,  155,  194,  196;  Williams  v.  Williams,  8  N.  Y. 
525. 

*  The  excepted  instances  authorized  by  statute  are  generally  cases  where 
corporations  may  receive  and  hold  property,  in  trust  for  some  object  whidi 
is  charitable.  The  states  constituting  this  class  are  the  following: — New 
York  (until  statute  of  1893)  ;  Wisconsin  (as  respects  real  but  not  as  respects 
personal    property)  ;    Michigan;    Minnesota. 

In  all  the  foregoing  states  the  same  type  of  statute  has  been  adopted,  in 
terms  abolisliing  all  uses  and  trusts,  except  a  few  well-defined  species  of 
active  express  trusts  which  do  not  include  any  ordinary  form  of  charitabh' 
use.  The  courts  of  these  states  have  felt  themselves  compelled  to  hold  that 
all  charitable  trusts  were  abolished,  except  such  as  would  be  valid  forms, 
under  the  exceptions  of  the  statute.  Xo  other  conclusion  seems  to  me  pos- 
sible, Qxcept  by  a  judicial   repeal  of  the  legislation. 

Maryland;  Virginia;  West  Virginia.  In  all  these  states  a  trust  for  char- 
itable purposes  would  be  ujilield.  ])r()vi(le(l  it  possessed  all  the  elements  of 
a  valid  ordinary  private  trust:  that  is.  tlic  tiustee  was  a  certain  person 
competent  to  take  and  hold  tlie  property,  the  l)enefk'iaries  were  certain  or 
capable  of  lieing  made  so.  and  no  iterpctuity  was  created.  In  other  words, 
an  express  trust,  otherwise  valid,  would  not  bccdiiie  invalid  because  tlie  ulti- 
nuito  purpose  was  chartitable. 


§  1029  EQUITY  JUKISPKUDEXCE.  584 

law,  or  except  iu  those  particular  instances  authorized  by  statute. 
The  equitable  system  of  distinctively  charitable  trusts  is  aban- 
doned. Second  class.  This  class  includes  the  larger  portion  of  the 
states  in  which  "charitable  trusts"  exist  under  a  somewhat  modi- 
fied and  restricted  form.-  There  is  not  a  little  divergence  in  the 
views  maintained  by  the  courts  of  the  various  states  composing 
this  class.  In  a  few  of  them  the  statute  of  Elizabeth  is  held  to  be 
in  force,  or  one  similar  to  it  has  been  enacted.  In  the  majority 
of  them  the  doctrine  of  charitable  trusts,  as  a  part  of  the  ordinary 
jurisdiction  and  functions  of  equity,  has  been  accepted  in  a  modified 
and  limited  form;  such  trusts  are  upheld  when  the  property  is 
siiven  to  a  persoji  suffieientl}'  certain,  and  for  an  object  sufficiently 
definite.  With  regard  to  this  element  of  certainty  in  the  trustee, 
and  the  objects,  there  is  much  diversity  of  decision.  The  doctrine 
of  cy-pres  is  generally  rejected.  Third  class.  This  class  includes 
a  very  few  states  which  have  accepted  the  doctrine  in  its  full  ex- 
tent." The  states  composing  this  group  have  not  even  totally  re- 
jected the  doctrine  of  c^'-pres,  although  they  do  not  apply  it  so 
freely  and  under  such  extreme  circumstances  as  would  be  done  in 
England.  The  general  system  seems,  at  least,  to  be  so  far  adopted 
that  when  an  intention  to  give  property  to  charitable  uses  is 
clearly  manifested,  but  the  disposition  is  luicertain  and  indefinite, 
cither  as  to  the  trustee  or  as  to  the  objects  and  l)eneficiaries,  the 
trust  is  upheld  or  defeated,-  upon  the  same  principles  as  those 
vrhich  would  be  followed  by  the  English  courts. 

-The  following  states  are  placet!  in  this  class;  but  there  is  a  great  diver- 
sity in  the  particular  rules  prevailing  in  the  different  states,  and  onl}-  a 
(fcurral  resemblance  in  their  decisions:  Alabama;  Arkansas;  California; 
Colorado;  Connecticut  (but  the  cj-pres  doctrine  has  been  to  some  extent 
adopted  by  statute);  Delaware;  Georgia;  Illinois;  Indiana;  Iowa;  Kansas; 
Kentucky  (but  may  belong  in  class  third)  ;  Louisiana;  Maine;  Mississippi 
(valid  as  respects  personalty  but  not  realty)  ;  Missouri  (possibly  may  belong 
in  class  third)  ;  Nebraska;  New  Hampshire;  Xew  Jersey;  New  York  (since 
1893);  North  Carolina;  Ohio;  Oregon;  Pennsylvania;  South  Carolina:  Ten- 
nessee; Texas;  Utah  (probably);  Vermont;  Washington;  Wisconsin  (as  respects 
personal   property)  ;    United   States   Supreme  Court. 

A  few  of  the  states  in  this  list — e.  g..  New  Jersey — might  perhaps  be 
properly  placed  in  the  third  class,  since  their  courts  uphold  trusts  very  un- 
certain, both  as  to  trustee  and  object ;  but  none  of  tliem,  I  believe,  profess 
to  accept  the  English   doctrine  in  all  its   fullness. 

^Massachusetts;  Kentucky  (according  to  most  of  the  decisions);  ^Missouri 
(cy-pres  doctrine  recognized  by  the  language  of  the  decisions)  ;   Rhode  Island. 


585  TRUSTS    AUISING    BV    Ol'KUATlOX    OF    LAW.  |  1030 


SECTIOX  Y. 

TRUSTS    ARISING    BY    OPERATION    OF    LAW— KHSULTINO    AND    CON- 

STRL(.TI\K   TRUSTS. 


§    10:50.  General    nature   and    kinds. 
§§    lO:]  1-104:5.   First.       Rc'Miltiny     tiu->t>. 
§§    10:i'2-10;>l).  First    form:    trusts   resulting   to    donor. 

§   10:52.   1.  I'roperty    conveyed    on    some    tru~t     wliieli    fails. 

§   10:>;J.  Same;   essential  elements. 

§    10:i4.  2.  A   trust    declared    in    part   only    of    the    estate    conveyed. 

§   10:3-").  o.  In    conveyances    without    consideration. 

§   lOot).  Parol  evidence. 
§§   10:57-104:3.  Second  form:   conveyance  to  A,  price  paid  by  B. 

§   10;58.  Special  rules. 

§   103!t.  Purchase  in  name  of  wife  or  child. 

§   1040.  Admissibility    of   parol   evidence. 

§   1041.  The    same;    between    family    relatives. 

§    1042.  Legislation    of    sevei'al    states. 

§    104-3.  Interest    and    rights    of   tlie   lieneficiary. 
§§   1044-1058.  Secono.      Constructive   trusts. 

§   1045.  Kinds  and  classes. 

§   104(j.  L  Arising    from    contracts    express   or    implied. 

§   1047.  2.  [Money   received   equitably   belonging   to   another. 

§   1048.  3.  Acquisition    of    trust   property    by    a    volunteer,    or    purchaser 
with  notice. 

§   1049.  4.  Fiduciary    persons    purchasing    property    with    trust    funds. 

§   1050.  5.  Renewal   of  a    lease   Ijv   ])artners   and   other   fidueiary    ])ersons. 

§   1051.  6.  Wrongful    appropriation   or   conversion   into    a    difl'erent    form 
of  another's  property. 

§   1052.  7.  ^^'rongful    acquisition   of   the   trust   projierty   by   a   trustee   or 
other  fiduciary  person. 

§   1053.  8.  Tru-ts    ex   maleficio. 

§   1054.    (1)    A   devise    or    bequest  procured  by   fraud. 

§    1055.    (2)    Pureliasc    updn    a    fraudulent   verbal    promise. 

§   1050.    (3)    No  trust    from    a   meie   verbal   promise. 

§    1057.  9.  Trust    in    favor    of    creditors. 

§   1058.  Rights   and   remedies   of   the   beneficiaries. 

§  1030.  General  Nature  and  Kinds. — The  second  main  division 
of  trusts,  and  the  one  which,  in  this  country  especially,  afl'ords  the 
widest  field  for  the  jurisdiction  of  equity  in  g-rantino;  its  special 
remedies  so  superior  to  the  mere  leo-al  recoveries  of  damages,  em- 
braces those  which  arise  by  operation  of  law,  from  the  deeds,  wills, 
contracts,  acts,  or  conduct  of  parties,  either  with  or  without  their 
intention,  but  without  any  express  words  of  creation.  A  broad  dis- 
tinction separates  all  express  trusts  from  those  which  arise  by 
operation  of  law.    In  the  former  class  the  trust  relation  is  rightful 


§  1031  EQUITY    JURISPRUDENCE.  586 

and  permanent.  In  the  latter,  there  is  no  snch  element  of  right 
and  permanency.  Even  if  the  trust  relation  is  not  wholly  wrong- 
ful, resulting  from  fraud  or  other  unconscientious  act,  still  a  cer- 
tain antagonism  between  the  cestui  que  trust  and  the  trustee  is 
involved  in  the  very  existence  of  the  trust ;  and  instead  of  the 
idea  of  permanence,  the  substantial  right  of  the  beneficiary  is 
that  the  trust  should  be  ended  by  a  conveyance  of  the  legal  title 
to  himself.^  All  trusts  by  operation  of  law  consist,  therefore,  in 
a  separation  of  the  legal  and  the  equitable  estates,  one  person  hold- 
ing the  legal  title  for  the  benefit  of  the  equitable  owner,  who  is 
regarded  by  equity  as  the  real  owner,  and  who  is  entitled  to  be 
clothed  with  the  legal  title  by  a  conveyance.  Certain  instances  of 
this  class  are  trusts  only  sub  modo;  they  are  termed  trusts,  because 
the  beneficial  owner  is  entitled  to  the  same  remedies  against  the 
holder  of  the  legal  title  which  are  given  to  the  beneficial}-  under 
a  true  trust.  All  trusts  which  arise  by  operation  of  law  are,  as. 
the  name  indicates,  excepted  from  the  requirements  of  the  statute 
of  frauds.-  This  entire  grand  division  consists  of  two  general 
classes:  resulting  trusts  and  constructive  trusts.  The  line  of  dis- 
tinction between  these  two  classes:  is  clear  and  definite;  the  fail- 
ure to  observe  it  has  produced  much  unnecessary  confusion.  I 
shall  describe,  frst,  resulting  trusts,  and  second,  constructive  trusts, 
following  a  classification  which  seems  to  me  the  necessarj^  conse- 
quence of  fundamental  principles. 

§  1031.  First.  Resulting  Trusts. — In  all  species  of  resulting 
trusts,  intention  is  an  essential  element,  although  that  intention  is 
never  expressed  by  any  words  ox  direct  creation.  There  must  be  a 
transfer,  and  equity  infers  the  intention  that  the  transferee  was  not 
to  receive  and  hold  the  legal  title  as  the  beneficial  owner,  but  that 
a  trust  was  to  arise  in  favor  of  the  party  whom  equity  would 
regard  as  the  beneficial  OAvner  under  the  circumstances.  The  equi- 
table theory  of  consideration,  heretofore  explained,  is  the  source 
and  underlying  principle  of  the  entire  class.^  Resulting  trusts, 
therefore,  are  those  which  arise  where  the  legal  estate  in  property 
is  disposed  of,  conveyed,  or  transferred,  but  the  intent  appears  or 
is  inferred  from  the  terms  of  the  disposition,  or  from  the  accom- 
panying facts  and  circumstances,  that  the  beneficial  interest  is  not 
to  go  or  be  enjoyed  with  the  legal  title.  In  such  case  a  trust  is 
implied  or  results  in  favor  of  the  person  for  whom  the  equitable 
interest  is  assumed  to  have  been  intended,  and  whom  equity  deems 
to  be  the  real  owner.     This  person  is  the  one  from  whom  the  con- 

•See  vol.  1,  S  148. 
^^See  ante,  §  1008. 
>See  ante,  §  981. 


587  TRUSTS    AKlSIXd    HV    OPKHATIOX    OF    LAW.  §  1032 

sideration  actually  comes,  or  wlio  represents  or  is  idenMfied  iu 
right  with  the  consideration;  the  resulting  trust  folloAvs  or  goes 
with  the  real  consideration.  All  true  resulting  trusts  may  be  re- 
duced to  two  general  types:  1.  Where  there  is  a  gift  to  A.  but 
the  intention  appears,  from  the  terms  of  the  instrument,  that  the 
legal  and  beneficial  estates  are  to  be  separated,  and  that  he  is 
either  to  enjoy  no  beneficial  interest  or  only  a  par^;  of  it.  In  order 
that  a  case  of  this  kind  may  arise,  there  must  be  a^tnie  gift  so  far 
as  the  immediate  transferee,  A,  is  concerned;  the  instrument  must 
not  even  state  any  consideration,  and  no  valid  complete  trust  must 
be  declared  in  favor  of  A  or  of  any  other  person.  Such  trusts, 
therefore,  generally  arise  from  wills,  although  they  may  arise  from 
deeds.  If  the  conveyance  be  by  a  deed,  the  trust  will  result  to  the 
grantor;  if  it  be  by  a  will,  the  trust  will  result  to  the  testator's 
residuary  devisees  or  legatees,  or  to  his  heirs  or  personal  repre- 
sentatives, according  to  the  nature  of  the  property  and  of  the  dis- 
positions, 2.  The  second  type  includes  the  cases  where  a  purchase 
has  been  made,  and  the  legal  estate  is  conveyed  or  transferred  to 
A,  but  the  purchase  price  is  paid  by  B.  I  shall  briefly  examine 
these  two  forms. 

§1032.  First  Form— Trust  Resulting  to  the  Donor. — This  type 
includes  the  three  following  subdivisions:  1.  Where  property  is 
conveyed  by  will  or  deed  upon  some  particular  trust  or  particular 
objects,  and  these  purposes  fail  in  whole  or  in  part,  or  the  par- 
ticular trusts  are  so  uncertain  and  indefinite  that  they  can  not  be 
carried  into  effect,  or  they  lapse,  or  they  are  illegal — in  all  of  these 
cases  a  trust,  either  with  reference  to  the  whole  property  or  to  the 
residuum,  results  in  favor  of  the  grantor,  or  the  heirs,  residuary 
devisees  or  legatees,  or  personal  representatives  of  the  testator.^ 
The  following  are  illustrations:  Where  property  is  given  by  will 
or  deed,  stated  to  be  on  trust,  but  no  trust  is  declared;  or  upon 
trusts  thereafter  to  be  declared,  but  no  such  declaration  is  made; 
or  is  given  upon  some  trust  which  has  wholly  failed  and  become  in- 
operative ;-  or  when  property  is  given  upon  a  trust  which  is  too  un- 
certain, indefinite,  and  vague  in  its  declaration  to  be  carried  into 
effect;^  or  if  property  is  given  upon  a  trust  which  is  illegal,  and 
therefore  void,*  or  upon  a  trust  which  fails  by  lapse,  and  the  pi-op- 
erty  is  not  otherwise  disposed  of."' 

'Ollifte  V.  Wells,  130  Mass.  221;  Sehlessinger  v.  :\rallar(l.  70  Cal.  320,  II 
Pac.  728. 

-Morice  v.  Bishop  of  Durham,  10  Ves.  537,  Ames  Trusts  1!).'):  Onslow  v. 
Wallis,  1  Maen.  &  G.   506,  Ames   Trusts  462. 

'Nichols  V.  Allon.  130  :\lass.  211,  39  Am.  Rep.  445;   In  re  Davis.  112  Fed.  129. 

^Pawson  V.  Ihown,  L.  1\.   13  Ch.  Div.  202. 

^Ackroyd  v.  Sniitlison,  1   Brown  Ch.  503.  3  Keener  977,  1   Scott  (521;   or  has 


§  1034  EQUITY    JUiaSl'ltrDKNCE.  rtS'o 

§  1033.  The  Same.  Essential  Elements. — In  this  and  all  other 
forms  bolonging-  to  the  class  under  present  consideration,  there 
must  be  no  pecuniary  consideration  coming  from  the  grantee,  for 
such  a  consideration  would  raise  a  trust  in  his  own  favor,  and 
clothe  him  with  the  beneficial  interest.  Even  if  the  conveyance 
merely  recites  ?  pecuniary  consideration,  the  same  effect  would  be 
produced.^  Furthermore,  the  deed  or  will  must  contain  no  dec- 
laration of  use  covering  the  whole  estate  in  favor  of  the  grantee 
or  devisee ;  such  a  declaration  of  use  would  raise  a  trust  in  his 
favor,  vest  in  him  the  beneficial  estate  to  its  extent,  and  so  far  de- 
feat any  resulting  trust.  Resulting  trusts  of  this  type  are  matters 
of  intention.  There  is  a  substantial  distinction  between  giving 
property  expressly  for  a  particular  purpose,  and  giving  it  only 
suhject  to  a  particular  purpose.-  If  the  intention  appears  from  the 
whole  instrument  that  the  donee  is  to  take  the  beneficial  interest, 
even  though  snhiect  to  the  particiTlar  object  or  purpose  designated, 
then  no  trust  shall  result  to  the  donor,  if  that  object  or  purpose 
should  fail. 

§  1034.  2.  A  Trust  Declared  in  a  Part  only  of  the  Estate  Con- 
veyed.— A  second  subdivision  includes  those  cases  where  the  owner 
of  both  the  legal  and  the  equitable  estates  conveys  the  legal  estate, 
but  does  not  convey  the  equitable  estate,  or  conveys  only  a  por- 
tion of  it,  and  a  trust  in  the  entire  e(initable  estate  in  the  one  in- 
stance, or  in  the  part  of  it  undisposed  of  in  the  other,  will,  in  gen- 

teriiiiiiatcd:  Hopkins  v.  Griinshaw,  105  U.  S.  342,  17  Sup.  Ct.  401,  23  L, 
ed.  392.  If  the  property,  where  the  prior  trust  fails  by  hqise  or  otherwise, 
is  given  to  some  other  person,  then  no  trust  results. 

'  ]\Iethodist  Episcopal  Church  v.  Jackson  .Square  Evangelieal  Church,  84 
Md.    173,  35  Ati.  8. 

-  The  reason  of  this  distinction  lies  wholly  in  the  intention  or  assumed  in- 
1  nil  ion  of  the  donoi'.  When  property  is  given  to  A  expressly  for  a  specific 
purpose,  the  instrument  showing  u  clear  intention  that  the  gift  is  for  iliat 
j)ur])ose  alone, — e.  g.,  land  is  given  on  trust  to  pay  the  grantor's  dehts, — then 
as  to  so  much  of  the  property  given  as  is  not  required  for  the  expressed 
pur]iose,  a  trust  results  to  the  donor.  On  the  other  hand,  when  property  is 
gi\en  to  A,  subject  only  to  or  charged  with,  a  particular  purpose,  the  gift 
is  held  to  be  absolute;  a  beneficial  interest  as  well  as  the  legal  estate  vests 
in  the  donee;  and  no  trust  results  to  the  donor,  even  though  the  special  pur- 
po-^c  wholly  fails. — much  less  when  there  is  a  residuum  of  the  property  left 
after  it  is  accomplished.  The  case  is  completely  analogous  to  a  conveyance 
or  bequest  to  A  of  all  the  legal  and  beneficial  interest  in  property,  subject 
to  or  encumbered  by  a  mortgage  or  ;iny  otiier  kind  of  lien.  It  follows  that 
where  property  is  devised  or  bequeathed  to  A,  svhject  to  or  charged  irith  the 
payment  of  the  testator's  debts  or  legacies.  A  takes  the  entire  interest,  subject 
only  to  the  lien  or  charge,  and  there  is  no  resulting  trust:  King  v.  Denison, 
1   Ves.  &  B.  260,  272. 


589  TRUSTS    AlilSlNCi    BY    Ol'KltATION    OF    LAW.  i^  ^^^'37 

eral,  result  to  the  ui-aiitoi',  or  to  the  heirs  or  representatives  of  the 
testator.^ 

§1035.  3.  In  Conveyances  without  Consideration. — It  was  a 
doctrine  of  the  English  ecjuity,  in  pursuance  of  the  ancient  prin- 
ciple that  the  use  followed  or  was  raised  by  the  consideration,  that 
when  land  was  conveyed  by  deed  without  any  consideration,  and 
without  any  use  or  trust  being  declared,  a  trust  resulted  to  the 
feoffor,  the  feoft'ee  taking-  only  the  naked  legal  title.  This  doctrine, 
however,  had  no  application  to  conveyances  which  operated  under 
the  statute  of  uses,  since  a  use  was  raised  in  favor  of  the  immediate 
grantee  by  a  ''bargain  and  sale"  between  strangers,  and  by  a 
"covenant  to  stand  seised"  between  relatives.  If  the  doctrine  has 
any  existence  under  the  conveyancing  system  of  this  country,  so 
that  a  trust  should  result  to  the  grantor  from  the  absence  of  a 
consideration,  it  can  only  be  where  the  deed  simply  contains  words 
of  grant  or  transfer,  and  does  not  recite  nor  imply  any  considera- 
tion, and  does  not,  in  the  habendum  clause  or  elsewhere,  declare 
any  use  in  favor  of  the  grantee,  and  the  conveyance  is  not  in  fact 
intended  as  a  gift.^ 

§  1036.  Parol  Evidence. — In  all  the  instances  belonging  to  this 
first  form  of  resulting  trust,  the  intention  that  the  donee  is  not 
to  enjoy  the  beneficial  interest,  but  that  a  trust  is  to  result,  or  the 
contrary  intention,  must  appear  expressly  or  by  implication  from 
the  terms  of  the  instrument  itself  by  which  the  property  is  con- 
veyed. If  the  instrument  is  a  will,  then  no  extrinsic  evidence  is 
ever  admissible  to  show  the  testator's  meaning,  nor  even  to  show  a 
mistake.^  If  the  instrument  is  a  deed,  no  extrinsic  evidence  of 
the  donor's  intention  is  admissible,  unless  fraud  or  mistake  is 
alleged  and  shown.  If,  therefore,  there  is  in  fact  no  consideration, 
but  the  deed  recites  a  pecuniary  consideration,  even  merely  nomin- 
al, as  paid  by  the  grantee,  this  statement  raises  a  conclusive  pre- 
sumption of  an  intention  that  the  grantee  is  to  take  the  beneficial 
estate,  and  destroys  the  possibility  of  a  trust  resulting  to  the  grant- 
or, and  no  extrinsic  evidence  would  be  admitted  to  contradict  the 
recital,  and  to  show  that  there  is  in  fact  no  consideration — except, 
in  a  case  of  fraud  or  mistake.- 

§1037.  Second  Form.  Conveyance  to  A— Price  Paid  by  B. — 
Jji  i)ursuance  of  the  ancient  e(|nitable  principle  that  the  beneficial 

^Longley  v.  Longley,  L.  K.  13  Eq.  133;  Skollinger's  Ex'rs  v.  Skellinger's 
Ex'r.,  32  N.  J.  Eq.  (5.59,  11.  &  B.  442. 

'Cmild  V.  Lynde,  114  Mass.  33G,  11.  &  B.  44(5;  Buss  v.  Alcbius,  l(i  Cal. 
350. 

'  Soo  ante,  S  S71,  cases  in  note. 

==  Squire  v.  Tlaifler,  1  Paige  494,  19  Am.  Dee.  440;  Ohnicr  v.  Boyer,  89 
Ala.  273,  7   South.  663. 


§  1039  EC^UITY     JUUISPKUDEXCE.  590 

estate  follows  consideration  and  attaches  to  the  party  from  whom 
the  consideration  comes/  the  doctrine  is  settled  in  England  and 
in  a  great  majority  of  the  American  states,  tiiat  where  property 
is  purchased  and  the  conveyance  of  the  legal  title  is  taken  in  the 
name  of  one  person,  A,  while  the  purchase  price  is  paid  by 
juiother  person,  B,  a  trust  at  once  results  in  favor  of  the  party  who 
X>ays  the  price,  and  the  holder  of  the  legal  title  becomes  a  trustee 
for  him.  In  order  that  this  effect  may  be  produced,  however,  it 
is  absolutely  indispensable  that  the  payment  should  be  actually 
made  b}'  the  beneficiary,  B,  or  that  an  absolute  obligation  to  pay 
should  be  incurred  by  him,  as  a  part  of  the  original  transaction  of 
purchase,  at  or  before  the  time  of  the  conveyance.;  no  subsec[uent 
and  entirely  independent  conduct,  intervention,  or  payment  on  his 
part  would  raise  any  resulting  trust.- 

§  1038.  Special  Rules. — To  the  General  doctrine  are  added  the 
following  more  specific  rules:  The  trust  results  whether  the  title  is 
taken  in  the  name  of  one  grantee  only,  or  of  two  or  more  grantees 
jointly;  in  the  latter  case  there  are  joint  trustees.^  A  trust  also 
results  in  favor  of  one  who  pays  only  a  part  of  the  price.  In  other 
words,  where  two  or  more  persons  together  advance  the  price, 
and  the  title  is  taken  in  the  name  of  one  of  them,  a  trust  will  result 
in  favor  of  the  other  with  respect  to  an  undivided  share  of  the 
property  proportioned  to  his  share  of  the  price.-  The  doctrine  in 
all   of  its  phases  applies  alike  to  personal   and  to  real  property.^ 

§1039.  Purchase  in  the  Name  of  a  Wife  or  Child. — Wherever 
the  real  purchaser — the  one  who  pays  the  price — is  under  a  legal, 

^See   ante,   §    081. 

-  This  description  assumes  that  the  conveyance  to  A  is  made  witli  the  know  1- 
edge  and  consent,  express  or  implied,  of  B.  avIio  pays  the  price, — that  the 
Avhole  transaction  is  in  pursuance  of  a  common  understanding  or  arrange- 
ment. If  the  conveyance  is  taken  by  A  secretly,  contrary  to  B's  wishes,  in 
violation  of  a  duty  owed  to  him.  or  in  fraud  of  his  rights,  the  trust  which 
arises  in  B's  fa\or  is  not  ''resulting."  Init  is  "constructive."  The  two  kinds 
are  often  confounded,  but  the  distinction  is  important,  and  especially  so  in 
those  states  where  the  "resulting"  trusts  of  this  form  have  been  in  terms 
abolished  by  statute:  Dyer  v.  Dyer,  2  Cox  92;  1  Lead.  Cas.  Eq.  4  Am.  ed. 
314,  319,  333,  H.  &  B.  4o2,  Sh.  208;  Kelley  v.  Jenness,  50  Me.  45.5,  79  Am. 
Dec.  623;  Kline  v.  Eagland,  47  Ark.  Ill,  14  S.  W.  474;  Brainard  v.  Buck. 
184  U.  «.  09,  22  Sup.  Ct.  Rep.  458,  40  L.  ed.  449;  Reynolds  v.  Sumner,  126 
111.  58,  9  Am.  St.  Rep.  523,  and  note,  18  X.  E.  3.34,  1  L.  R.  A.  327;  Ducie 
V.  Ford,  138  U.  S.  587,  11  Sup.  Ct.  Rep.  417,  34  L.  Ed.  1091;  Long  v.  King, 
117   Ala.  423,   23   South.   534. 

^  Ex  parte   Houghton,    17   Ves.   251,   253. 

nVray  v.  Steele,  2  Ves.  &  B.  388;  Sanders  v.  Steele.  122  Ala.  415.  26 
South.  882;  Bailey  v.  Hemenway,  147  Mass.  320. 

'Rider  v.  Kidder,  10  Ves.  360;  McClung  v.  Colwell,  107  Tenn.  592,  89 
Am,  St.  Rep.  961,  64  S.  W.  890. 


591  TUL'STS  Ai:i:SlX(;  KV  Ol'KKAllU.X  UF  LAW.  §  1040 

or  even  iu  some  cases  a  mural,  ubligatiuu  lu  maintain  tlie  jxTSini 
in  whose  name  the  purchase  i«  made,  equity  raises  the  presumi)ti(m 
that  the  purchase  is  intended  as  an  advancement  or  gift  to  such 
recipient,  and  no  trust  results,  if,  therefore,  a  purchase  of  either 
real  or  personal  property  is  made  by  a  husband  in  the  nanie  of 
his  lawful  A»-ife,  or  in  the  joint  names  of  himself  and  his  wife, 
or  such  purchase  is  made  by  a  father  in  the  name  of  his  legitimate 
child,  or  in  the  joint  names  of  himself  and  child,  no  trust  results 
in  favor  of  the  husband  or  father,  but  the  transaction  is  presumed 
to  be  a  gift  or  advancement  to  or  for  the  benefit  of  the  wnfe 
or  child. ^  It  appears  to  be  now  settled  that  the  same  rule  applies 
to  a  mother  Avho  purchases  property  in  the  name  of  her  child,  or 
in  the  joint  names  of  herself  and  child,  and  pays  the  price  with 
her  own  separate  funds;  no  trust  results.-  The  rule  also  applies 
where  the  person  advancing  the  price  has  placed  himself  in  loco 
parentis  towards  the  other. •'• 

§  1040.  Admissibility  of  Parol  Evidence. — Since  these  resultiug 
trusts  are  not  embraced  within  the  statute  of  frauds,  their  existence 
need  not  be  evidenced  by  any  writing,  and  may,  therefore,  be  es- 
tablished by  parol.  In  cases  belonging  to  the  first  form, — purchases 
between  strangers, —  if  the  deed  does  not  show  on  its  face  that  the 
price  Avas  actuall}-  paid  by  another,  and  even,  according  to  man}' 
decisions,  if  the  deed  recites  that  the  payment  was  made  by  the 
grantee  therein,  the  real  fact  may  always  be  established  by  parol 
evidence;  it  may  be  proved  by  parol  that  the  purchase  price  was 
wholly  or  partly  paid  by  another  person,  and  thus  a  trust  ma}' 
be  shown  to  result  in  his  favor.  Where  the  trust  does  not  appear 
on  the  face  of  the  deed  or  other  instrument  of  transfer,  a  resort  to 
parol  evidence  is  indispensable.  It  it  settled  by  a  complete  unani- 
mity of  der-ision  that  such  evidence  must  be  clear,  strong,  unecjuiv- 
ocal,  unmistakable,  and  must  establish  the  fact  of  thy  payment 
by  the  alleged  beneficiar}-  beyond  a  doubt.  Where  the  payment  of 
a  part  only  is  claimed,  the  evidence  must  show,  in  the  same  clear 
manner,  the  exact  portion  of  the  whole  price  which  was  i)aid.^ 
Parol  evidence  is  also  admissible  on  the  part  of  the  grantee  to 
defeat  a  trust.  Since  the  whole  doctrine  of  a  resulting  trust 
depends  upon  an  equitable  presumption  of  an  intention,  so   this 

'Dyor  V.  Dyer,  2  Cox  !I2.  H.  &  ]}.  452,  «h.  208;  Smithsonian  Institiilc  v. 
Mecch.  169  U.  S.  3!)S.  18  Sup.  Ct.  Eep.  396,  42  L.  ed.  793;  Deck  v.  Tabler, 
41   W.  Va.  332,  23  S.   E.   721,  56  Am.   St.   Rep.  837. 

=  Cooley   V.    Cooley.    172    Mass.   476,    52    N.    E.    631. 

'Hamilton  v.   Steele,  22   VV,  Va.   348. 

iRyall  V.  Eyall,  1  Atk.  59;  Baker  v.  Vining,  30  Me.  121,  126,  50  Am. 
Dec.   617:    Brinknian    v.   Sunken,    174   :Mo.   709.   74   S.    \V.   9(1;;. 


§1044  EQUITY     JLKhsrULDEXCE.  592 

presumption  may  be  overcome  by  parol  evidence  of  an  actual  in- 
tention on  the  part  of  the  one  paying  the  price,  that  the  trans- 
action was  to  be  a  gift.- 

§  1041.  The  Same.  Between  Family  Relatives. —  In  trusts  of 
the  second  form,  between  family  relatives,  no  evidence  is  necessary, 
in  the  first  instance,  to  show  the  operation  of  the  rule,  since  a 
I)resumption  arises  on  the  face  of  the  transaction  that  a  gift  was 
intended,  and  that  no  trust  results.  This  result,  however,  is  merely 
a  presumption,  and  may  be  overcome.  Extrinsic  evidence,  either 
written  or  parol,  is  admissible  on  behalf  of  the  husband  or  parent 
paying  the  price  to  rebut  the  presumption  of  an  advancement 
or  gift,  and  to  show  that  a  trust  results ;  and  conversely,  such 
evidence  may  be  used  to  fortify  and  support  the  presumption.  In 
general,  this  extrinsic  evidence,  to  defeat  an  advancement  and  es- 
tablish a  trust  as  against  the  party  to  whom  the  property  is  con- 
veyed or  transferred  and  those  holding  luider  him,  must  consist 
of  matters  suhstantlally  contemporaneous  with  the  purchase,  convey- 
ance, or  transfer,  so  as  to  be  fairly  connected  with  the  transaction/ 

§  1043.  Interest  and  Rights  of  t'hc  Beneficiary. — The  interest 
of  the  cestui  que  trust  in  a  resulting  trust  is  not  a  mere  "equity"; 
it  is  an  equitable  estate  in  the  land  or  other  thing  of  which  the 
legal  title  is  vested  in  the  trustee:  and  as  such,  it  may  be  conveyed, 
transferred,  devised,  or  otherwise  dealt  with  as  property.^  It  is 
valid,  and  may  be  enforced  not  only  against  the  trustee,  but  against 
his  heirs,  devisees,  personal  representatives,  and  all  others  who 
derive  title  from  him  as  volunteers  or  purchasers  with  notice ;  but, 
being  a  purely  equitable  interest,  it  is  cut  off  and  destroyed  as 
against  all  bona  fide  purchasers  or  mortgagees  from  the  trustee 
for  a  valuable  consideration  and  without  notice.-  The  cestui  que 
trust  is  entitled  to  the  remedy  of  compelling  a  conveyance  or  as- 
signment of  the  legal  estate  to  himself  by  the  trustee,  or  perhaps, 
in  some  instances,  of  compelling  the  trustee  to  hold  the  property 
for  the  benefit  of  the  beneficiary,  and  subject  to  his  power  of 
enjoyment,   control,  and  disposition." 

§  1044.  Second.  Constructive  Trusts. — Constructive  tnists  in- 
clude all  those  instances  in  which  a  trust  is  raised  b^^  the  doctrines 

-F.onbow  V.  Townsend,  1  :\Iylne  &  K.  500;  ^Yal•cl  v.  Ward,  59  Conn.  188, 
22    Atl.    149. 

'Kilpin  V.  Kilpin,  1  Mylne  &  K.  520;  Smithsonian  Institute  v.  Meech,  169 
r.    8.   398,    18   Sup.   Ct.   .396,   42   L.   ed.    793. 

^Dickinson  v.   Burrell.   L.   E.    1    Eq.   337. 

^'King    V.    Pardee,    96    U.    S.    90. 

^  For  an  important  discission  of  the  application  of  the  "(dean  hands"  maxim, 
see  Monahan  v.  ^Monalian,  (Vt.)  59  Atl.  169,  especially  the  dissenting  opin- 
ion. 


593  TRUSTS    AiasiNU    BY    UTEKATIUN    01'    LAW.  §  1044 

of  equity  for  the  purpose  of  working-  out  justice  in  the  most  effi- 
cient manner,  where  there  is  no  intention  of  the  parties  to  create 
such  a  relation,  and  in  most  cases  contrary  to  the  intention  of  tlie 
one  holding  the  legal  title,  and  where  there  is  no  express  or  im- 
plied, written  or  verbal,  declaration  of  the  trust.^  They  arise  wh(Mi 
the  legal  title  to  property  is  obtained  by  a  person  in  violation, 
express  or  implied,  of  some  duty  OAved  to  the  one  who  is  ecpiitahly 
entitled,  and  when  the  propert}^  thus  obtained  is  held  in  hostility 
to  his  beneticial  rights  of  ownership.  As  the  trusts  of  this  class 
are  imposed  by  equity,  contrary  to  the  trustee's  intention  and  will, 
upon  proi)erty  in  his  hands,  they  are  often  termed  Iriisls  in  invilunt : 
and  this  phrase  furnishes  a  criterion  generally  accurate  and  suffi- 
cient for  determining  what  trusts  are  truly  "constructive."  An  ex- 
haustive analysis  would  show,  I  think,  that  all  instances  of  con- 
structive trusts  properly  so  called  may  be  referred  to  what  equity 
denominates  fraud,  either  actual  or  constructive,  as  an  essential 
element,  and  as  their  final  source.  Even  in  that  single  class  where 
equity  proceeds  upon  the  maxim  that  an  intention  to  fulfill  an  obli- 
gation should  be  imputed,  and  assumes  that  the  purchaser  intended 
to  act  in  pursuance  of  his  fiduciary  duty,  the  notion  of  fraud  is  not 
invoked,  simply  because  it  is  not  absolutely  necessary  under  the 
circumstances ;  the  existence  of  the  trust  in  all  cases  of  this  class 
might  be  referred  to  constructive  fraud.-  This  notion  of  fraud 
enters  into  the  conception  in  all  its  possible  degrees.  .  Certain 
species  of  the  constructive  trusts  arise  from  actual  fraud ;  many 
others  spring  from  the  violation  of  some  positive  fiduciary  obliga- 
tion ;  in  all  the  remaining  instances  there  is,  latent  perhaps,  but 
none  the  less  real,  the  necessary  element  of  that  unconscientious 
conduct  which  eciuity  calls  constructive  fraud. ^  Courts  of  equity, 
by  thus  extending-  the  fundamental  principle  of  trusts — that  is. 
the  principle  of  a  division  between  the  legal  estate  in  one  and  the 
equitable  estate  in  another — to  all  cases  of  actual  or  constructive 
fraud  and  breaches  of  good  faith,  are  enabled  to  wield  a  remedial 
power  of  tremendous  efficacy  in  })r()tecting-  the  rights  of  property, 
they  can  follow  the  real  owner's  specific  propert5%  and  preserve  his 

'Orth  V.  Orth,  145  Iiul.  184,  57  Am.  St.  Rep.  185,  4-2  X.  E.  277,  44  X.  E. 
17,   -.i-l   L.   R.   A.   298. 

-  1  refer  to  the  class  of  ea.«es  where  a  trustee  uses  trust  funds  to  pay  for 
property  purchased  in  his  own  name;  equity  assumes  that  he  intended  to 
act  in  accordance  with  his  fiduciary  duty,  aIthoug;h  in  tlie  majority  of  such 
instances  the  actual  intention  is  undoubtedly  to  violate  the  duty.  It  will 
he  seen  that,  in  my  opinion,  certain  kinds  of  so-called  trusts  whicli  are  often 
spoken  of  as  "constructive"  do  not   at  all   belong  to  that   class. 

■M)'Hear   Jewelry    f'o.    v.    \oifer,    100    Ala.    205,    17    South,   525,   54    Am.    St. 

Rep.    31,   28   L.    R.    A.    707. 
38 


5  1046  EQUITY  JURISPRUDENCE,  594 

real  ownership,  although  he  has  lost  or  even  never  had  the  legal 
title,  and  can  thus  give  remedies  far  more  complete  than  the 
compensatory  damages  obtainable  in  courts  of  law.  The  principle 
is  one  of  universal  application;  it  extends  alike  to  real  and  to 
personal  property,  to  things  in  action,  and  funds  of  money.  Salu- 
tary and  efficient  as  the  principle  is,  however,  many  of  the  con- 
structive trusts  which  it  creates  are  only  trusts  sub  modo ;  they 
have  little  resemblance,  in  their  essential  nature,  to  express  trusts.* 
In  applying  this  principle,  care  should  be  taken  to  distinguish  be- 
tween actual  trusts  and  those  relations  which  are  only  trusts  l)y 
way  of  metaphor;  between  persons  who  are  true  trustees  holding 
the  legal  title  for  a  beneficial  oivner,  and  those  who  simply  occupy 
a  position  which  is  analogous  in  some  respects  to  that  of  a  trustee. 
The  use  of  these  terms  to  designate  relations  and  parties  which  have 
no  essential  element  in  common  with  actual  trusts  and  trustees 
can  only  produce  confusion  and  inaccuracy.^ 

§  1045.  Kinds  and  Classes. — The  specific  instances  in  which  equi- 
ty impresses  a  constructive  trust  are  numberless, — as  numberless 
as  the  modes  by  which  property  may  be  obtained,  through  bad  faith 
and  unconscientious  acts.  It  is  possible,  however,  to  distinguish 
and  describe  the  general  groups  or  types  under  which  all*  these 
instances  may  be  arranged,  and  thus  to  present  a  comprehensive 
view   of  the   whole   snl).iect. 

§  1046.  1.  Arising  from  Contract,  Express  or  Implied. — There 
are  certain  relations  which  are  often  spoken  of  as  trusts,  and  a-s 
constituting  a  species  of  constructive  trusts,  but  which  are  not.  in 

^The  language  of  Lord  Westbury  on  this  point,  in  Rolfe  v.  Gregory,  4 
De  Gex,  J.  &  S.  576,  579,  is  very  instructive. 

=  The  distinction  is  clearly  stated  by  Lord  Westbury  in  Knox  v.  Gye,  L. 
R,.  5  H.  L.  650,  675.  It  -was  argued,  according  to  the  common  mode  of  ex- 
pression, that  a  surviving  partner  is  a  trustee  of  tlie  share  of  his  deceased 
partner;  but  the  lord  chancellor  referred  to  the  case  of  the  vendor  and  vendee 
of  land,  and  said  that  altliough  the  vendor  might  by  a  metaphor  be  called 
a  trustee  for  the  vendee,  he  iras  trustee  only  to  the  extent  of  his  obligation 
to  perform  the  agreemeyit  between  himself  and  the  vendee,  and  proceeded  as 
follows:  "In  like  manner  here  the  surviving  partner  may  be  called  trustee 
for  the  dead  man,  hut  the  trust  is  limited  to  the  discharge  of  the  ohligntion, 
which  is  liable  to  be  barred  by  the  lapse  of  time.  As  between  the  express 
trustee  and  cestui  que  trust,  time  will  not  run,  but  the  surviving  partner 
is  not  a  trustee  in  that  full  and  proper  sense.  It  is  most  important  to  mark 
this  again  and  again,  for  there  is  not  a  more  fruitful  source  of  error  in  law 
than  the  inaccuracy  of  language.  The  application  to  a  man  who  is  improperly 
and  by  metaphor  only  called  a  trustee  of  all  the  consequences  which  Avould 
follow  if  he  were  a  trustee  by  express  declaration, — in  other  words,  a  com- 
plete trustee, — holding  the  property  exclusively  for  the  benefit  of  the  cestui 
que  trust,  «ell  illustrates  the  remark  made  by  Lord  Macclesfield,  that  nothing 
in  law  is  so  apt  to  mislead  as  a  metaphor." 


595  TKUSTy  AKisixc  i;v  opf.katiox  of  law.  §  1046 

any  true  and  complete  sense,  trusts,  Miid  eau  only  be  called  so  l)y 
way  jf  analogy  or  metaphor.  Since  they  lack  the  element  of 
fraud,  they  do  not,  in  any  view,  properly  belong  to  the  division 
of  constructive  trusts.^  It  is  commonly  said  that  a  trust  is  created 
by  a  contract  for  the  sale  of  land;  that  the  vendor  holds  the  legal 
title  as  a  trustee  for  the  purchaser.  Whatever  of  truth  there  is 
in  this  mode  of  statement^  whatever  of  a  real  trust  relation  exists, 
it  certainly  has  nothing-  in  common  with  constructive  trusts;  it 
rather  resembles  an  express  trust.-  In  like  manner,  the  survivors 
of  a  partnership  are  called  trustees  for  the  estate  of  the  deceased 
partner,  with  respect  to  his  share  of  the  firm  property.  This  ex- 
pression is  mostly  metaphorical ;  there  is  certainly  nothing  in  the 
relation  resembling  a  constructive  trust."'  Extending  the  analogy 
still  further,  courts  regard  partnership  property,  after  an  insolvency 
or  dissolution  of  the  firm,  and  in  the  proceeding  for  winding  up  its 
affairs,  as  a  trust  fund  for  the  benefit  of  the  firm  creditors;  and 
the  capital  stock  and  other  property  of  private  corporations,  es- 
pecially after  their  dissolution,  is  treated  as  a  trust  fund  in  favor 
of  creditors.  These  statements  may  be  sufficiently  accurate  as 
strong  modes  of  expressing  the  doctrine  that  such  property  is 
a  fund  sacredly  set  apart  for  the  payment  of  partnership  and  cor- 
poration creditors,  before  it  can  be  appropriated  to  the  use  of  the 
individual  partners  or  corporators,  and  that  the  creditors  have  a 
lien  upon  it  for  their  own  security ;  but  it  is  plain  that  no  constructive 
trust  can  arise  m  favor  of  the  creditors  unless  the  partners  or  direc- 
tors, through  fraud  or  a  breach  of  fiduciary  duty,  wrongfully  ap- 
propriate the  property,  and  acquire  the  legal  title  to  it  in  their 
own  names,  and  thus  place  it  beyond  the  reach  of  creditors  through 
ordinary  legal  means.*     I  have  thus  collected  the  instances  which 

*  There  is  a  tendency  among  writers  to  enlarge  the  meaning  of  the  word 
"trust''  beyond  its  legitimate  signification.  By  some,  the  various  equitable 
liens  and  similar  rights  arising  from  contract  are  made  to  be  the  most  im- 
portant, and  with  a  very  few  exceptions  the  only  instances  of  constructive 
trusts.  As  Lord  \Vestbury  shows,  such  a  mode  of  treatment  can  produce 
nothing  but  confusion.  The  cases  included  in  the  first  subdivision  of  the 
text  are  not  constructive  trusts,  and  are  mentioned  simply  for  purposes  of 
completeness,  and  to  distinguish  between  correct  and  mistaken  conceptions. 
See  Hollins  v.  Jirierfield,  etc.,  Iron  Co.,  130  U.  S.  371,  14  Sup.  Ct.  127.  :)7 
L.  ed.  Ill:):  O'Bear  Jewelry  Co.  v.  Volfcr,  lOG  Ala.  205,  17  South.  525,  54 
Am.   St.  Hep.  31,  28  L.  R.  A.  707. 

=  See  ante,  §  368;  post,  §  1201:  Thompson  v.  Thompson,  1  Jones  (X.  C.) 
430.   1   Ames  Eq.  .lur.  201. 

'See   Knox   v.   Gye,   L.    R.    5   H.   L.    G5G,    G75.   per   Lord    Westbury. 

*See  Ilollins  v.  Brierfiold,  etc..  Iron  Co..  150  U.  S.  371.  14  Sup.  Ct.  127, 
37  L.  ed.  1113:  Fogg  v.  Blair,  133  U.  S.  534.  10  Sun.  Ct.  338,  33  L.  ed.  721: 
Kouse  V.   IHerchants'   Nat.   Bank,   4G   Ohio  St.   403,   22   N.   E.   293,   15   Am.   St, 


§  1048  EQUITY     JUKiaPKUDEXCE.  ^390 

are  sometimes,  though  improperly,  classed  with  constructive  trusts, 
in  order  the  more  clearly  to  indicate  the  nature  of  the  trusts  which 
are  truly  constructive,  and  which  are  described  in  the  following 
paragraphs. 

§  1047.  2.  Money  Received  Which  Equitably  Belongs  to  An- 
other.— By  the  well-settled  doctrines  of  equity,  a  constructive  trust 
arises  whenever  one  party  has  obtained  money  which  does  not  equi- 
tably belong  to  him,  and  which  he  cannot  in  good  conscience  retain 
or  withhold  from  another  who  is  beneficially  entitled  to  it;  as, 
for  example,  when  money  has  been  paid  by  accident,  mistake  of  fact, 
or  fraud,  or  has  been  acquired  through  a  breach  of  trust,  or  vio- 
lation of  fiduciary  duty,  and  the  like.^  It  is  true  that  the  beneficial 
owner  can  often  recover  the  money  due  to  him  by  a  legal  action 
upon  an  implied  assumpsit;-  but  in  many  instances  a  resort  to  the 
(-({uitable  jurisdiction  is  proper  and  even  necessary.^ 

§  1048.  3.  Acquisition  of  Trust  Property  by  a  Volunteer,  or 
Purchaser  with  Notice. — Wherever  property,  real  or  personal,  which 
is  already  impressed  with  or  subject  to  a  trust  of  any  kind,  express 
or  by  operation  of  law,  is  conveyed  or  transferred  by  the  trustee, 
not  in  the  course  of  executing  and  carrying  into  effect  the  terms 
of  an  express  trust,  or  devolves  from  a  trustee  to  a  third  person, 
who  is  a  mere  volunteer,  or  who  is  a  purchaser  with  actual  or  con- 
structive notice  of  the  trust,  then  the  rule  is  universal  that  such 
heir,  devisee,  successor,  or  other  voluntary  transferee,  or  such  pur- 
chaser with  notice,  acquires  and  holds  the  property  subject  to  the 
same  trust  which  before  existed,  and  becomes  himself  a  trustee  for 
the  original  beneficiary.  Equity  impresses  the  trust  upon  the  prop- 
erty in  the  hands  of  the  transferee  or  purchaser,  compels  him  to 
perform  the  trust  if  it  be  active,  and  to  hold  the  property  subject 
to  the  trust,  and  renders  him  liable  to  all  the  remedies  which  may 
be  proper  for  enforcing  the  rights  of  the  beneficiary.  It  is  not 
n-^cessary  that  such  transferee  or  purchaser  should  be  guilty  of 
positive  fraud,  or  should  actually  intend  a  violation  of  the  trust 
obligation;  it  is  sufficient  that  he  acquires  property  upon  which  a 
trust  is  in  fact  impressed,  and  that  he  is  not  a  bona  fide  purchaser 

Kcp.  644,  5  L.  R,  A.  378;  O'Bear  Jewehy  Co.  v.  Volfer.  loO  Ala.  205,  17 
South.   525,   54   Am.   St.   Rep.   31,   28  L,   R.  A.   707. 

'Robinson  v.  Pierce,  118  Ala.  273,  72  Am,  St.  Rep.  KiO,  24  South.  984, 
45    L.    R.    A.    66. 

-  See  Frue  v.  Loring,  120  Mass.  507. — a  decision  based  upon  the  narrow 
and  statutory  jurisdiction  of  the  Massachusetts  courts,  and  not  in  harmony 
with   the   general    doctrines   of   equity. 

3Com.  Dig.,  tit.   Chancery,  2,  A,   1;   2   Foubl.  Eq.,  b.  2,  c.   1,  sec.   1,  note  i. 


597  Titrsxy  ahisixc;  iiv  oi'i:i;ation  ok  law.  §  1048 

for  a  valuable  consideration  and  without  notice.^  This  universal 
rule  forms  the  protection  and  safeguard  of  the  rights  of  beneficiaries 
in  all  kinds  of  trust;  it  enables  them  to  follow  trust  property, — 
lands,  chattels,  funds  of  securities,  and  even  of  money, — as  long  as 
it  can  be  identified,  into  the  hands  of  all  subsequent  holders  who 
are  not  in  the  position  of  bona  fide  purchasers  for  value  and  without 
notice;  it  furnishes  all  those  distinctively  equitable  remedies  which 
are  so  much  more  efficient  in  securing  the  beneficiary's  rights  than 
the  mere  pecuniary  recoveries  of  the  law.-  Even  when  the  original 
property  is  placed  beyond  the  reach  of  the  beneficiary  by  a  sale 
to  a  bona  fide  purchaser  for  value  and  without  notice,  the  trust, 
as  will  more  fully  appear  hereafter,  attaches  to  the  proceeds  in  the 
hands  of  the  trustee  who  makes  the  transfer.  The  statement  and 
grounds  of  the  rule  show  that  it  does  not  extend  to  the  case  where 
the  property  is  duly  transferred  or  purchased  in  pursuance  of  an 
express  trust  to  convey  or  sell,  and  for  Mie  purpose  of  carrying 
such  trust  into  effect.  And  where  the  rule  does  apply,  there  is 
some  distinction  between  money  and  other  kinds  of  trust  property. 
If  a  trustee  or  other  fiduciary  person,  in  violation  of  his  own  duty, 
uses  trust  money  to  pay  an  antecedent  debt  of  his  own  to  a  creditor 
who  has  no  notice  of  the  breach  of  trust,  or  that  the  money  is 
subject  to  the  trust,  in  such  a  manner  that  the  money  is  received 
as  a  general  payment,  and  not  as  a  distinct  and  separate  fund,  then 
the  money  becomes  free  from  the  trust,  and  cannot  be  followed 
by  the  beneficiary  into  the  hands  of  the  creditor,  altiiough.  in 
genera^,  an  antecedent  debt  does  not  constitute  a  valuable  consid- 
eration.^ 


•Robinson  v.  Pierce,  118  Ala.  273,  72  Am.  St.  Eep.  IGO,  24  South.  984, 
i)()l.  45  L.  R.  A.  66. 

-Xcwton  V.  Porter,  69  X.  Y.  133,  137,  139,  25  Am.  Rep.  152,  H.  &  V..  477, 
Sh.  201;  Murray  v.  Ballou,  1  Johns.  Ch.  566,  1  Scott  520;  Union  Pacific  R. 
R.  Co.  V.  HIcAlpine,  129  U.  S.  305,  314,  9  Sup.  Ct.  Rep.  286,  32  L.  ed.  673; 
\^'etnlore  v.  Porter,  92  N,  Y.  77,  Ames  Trusts  262  (the  trustee  who  lias  coni- 
niitteii  a  breach  of  trust  in  conveying  tlie  property,  may  sue  and  recover  it  for 
tlio  benefit  of  the  cestui  que  trust)  :  Leake  v.  Watson,  58  Conn.  332.  IS  Am. 
(St.   Rip.   270,   20  Atl.   343,  8  L.   R.   A.   606. 

'The  reason  p;iven  for  tliis  conclusion  is,  that  money  is  not  "car-marked"; 
wlien  received  by  the  creditor  and  min<rled  with  his  other  pecuniary  assets,  it 
cannot  be  distinjrnished  and  identified.  T'nder  these  circumstances  other  kinds 
of  property  would  remain  subject  to  the  trust,  since  the  creditor  would  not 
be  a  bona  fide  purchaser  for  value:  Holmes  v.  Oilman,  138  N.  Y.  at  376,  34 
Am.  St.  Rep.  463,  34  K  E.  205,  20  L.  R.  A.  ,566.  When  trust  money  has  been 
mincrled  Avith  other  funds,  and  the  trustee  has  subsequently  withdrawn  a 
portion,  it  is  presiimed  by  the  court  that  he  has  withdrawn  his  own  money 
and  left  the  trust  fimds;  and  therefore  it  is  only  necessary  to  show  that 
an  amount  has  remained  on   deposit  that  is  equal  to  tlie   amount   of  the  trust 


§  1049  EQUITY  JURISPRUDENCE.  598 

§1049.  4.  Fiduciary  Persons  Purchasing  Property  with  Trust 
Funds. — Another  important  form  of  the  trust  arises  from  the  acts 
of  persons  already  possessing  some  fiduciary  character  or  standing 
in  some  fiduciary  relation.  Whenever  a  trustee  or  other  person  in 
a  fiduciary  capacity,  acting  apparently  within  the  scope  of  his  pow- 
ers,— that  is,  having  authority  to  do  what  he  does, — purchases 
property  with  trust  funds,  and  takes  the  title  thereto  in  his  own 
name,  without  any  declaration  of  trust,  a  trust  arises  with  respect 
to  such  property  in  favor  of  the  cestui  que  trust  or  other  bene- 
ficiar3^  Equity  regards  such  a  purchase  as  made  in  trust  for  the 
person  beneficially  interested,  independently  of  any  imputation  of 
fraud,  and  without  requiring  any  proof  of  an  intention  to  violate 
the  existing  fiduciary  obligation,  because  it  assumes  that  the  pur- 
chaser intended  to  act  in  pursuance  of  his  fiduciary  duty,  and  not 
in  violation  of  it.  This  doctrine  is  of  Avide  application;  it  extends 
to  trustees,  executors  and  administrators,  directors  of  corporations, 
guardians,  committees  of  Innaties,  agents  using  money  of  their  prin- 
cipals, partners  using  partnership  funds,  husbands  purchasing  prop- 
erty with  money  belonging  to  the  separate  estate  of  their  wives, 
l^arents.  and  children,  and  all  persons  who  stand  in  lidnciary  rela- 

fund.  The  leading  case  is  In  re  Hallett's  Estate,  13  Cli.  Div.  (JOG,  in  wliicli 
Jessel,  ]NL  R.,  stated:  '"It  seems  to  me  perfectly  plain  that  he  (the  trustee) 
cannot  be  heard  to  say  that  he  took  away  the  trust  money  when  he  had  a, 
right  to  take  away  his  own  money.  The  simplest  case  put  is  the  mingling 
of  trust  moneys  in  a  bag,  with  money  of  the  trustee's  own.  Suppose  he  has 
a  hundred  sovereigns  in  a  bag,  and  he  adds  to  them  another  hundred  sover- 
eigns of  his  own,  so  that  they  are  commingled  in  such  a  way  that  they  can- 
not be  distinguished,  and  the  next  day  he  draws  out  for  his  own  purpose 
£100,  is  it  tolerable  for  anybody  to  allege  that  what  he  drew  out  was 
the  first  £100,  the  trust  money,  and  that  he  misappropriated  it,  and  left  his 
own  £100  in  the  bag?  It  is  obvious  he  must  have  taken  away  that  which  he 
had  a  right  to  take  away,  his  own  £100,  What  difl'erence  does  it  make  if,. 
instead  of  being  in  a  bag,  he  deposits  it  with  his  banker,  and  then  pays  in 
other  money  of  his  own,  and  draws  out  some  other  money  for  his  own  pur- 
poses? Could  he  say  that  he  had  actually  drawn  out  anything  but  his  own 
money?  His  money  was  there,  and  he  had  a  right  to  draw  it  out,  and  why 
should  the  natural  act  of  simply  drawing  out  the  money  be  attributed  to 
anything  except  to  his  ownership  of  money  which  was  at  his  bankers?''  Wliere 
the  entire  fund  has  been  dissipated  it  has  been  pertinently  remarked :     "Knight 

Bruce's   chest   Jessel's   bag  is   empty;"    Slater   v.    Oriental    ^ilills,    18 

R.  I.  352,  27  Atl.  443,  H.  &  B.  4C6.  A  trustee's  estate  will  not  be  held  sub- 
ject to  the  claim  of  the  cestui  unless  it  is  shown  that  the  trust  rfs  directly 
contributed  to  that  portion  of  the  estate  which  is  held;  ]Monotuck  Silk  Co. 
v.  Flanders,  87  \Yis.  237,  58  N.  W.  383,  H.  &  B.  468.  The  recent  case  of 
Ober  &  Sons  Co.  v.  Cochran,  118  Ga.  396,  45  S.  E.  382,  98  Am.  St.  Rep.  118, 
is  also  useful  for  its  statements  of  the  competing  rules  upon  this  subject, 
and  its  review  of  the  authorities. 
See,  also,  post,  §    1076. 


59y  TRUSTS    ARISING    BY    OPERATION    OF    LAW.  §  1050 

tions  towards  others.  E(|uity  jurisprudence  cuutains  few  more  ef- 
ficient doctrines  than  this  in  maintaining  the  benericial  rights  of 
property.^  The  evidence  that  the  purchase  was  made  with  trust 
funds  must,  however,   be   clear  and   unmistakable. 

§  1050.  5.  Renewal  of  Leases  by  Partners  and  Other  Fiduciary 
Persons. — Another  special  form  of  constructive  trusts,  depending 
upon  a  much  more  general  principle  to  be  examined  in  subsequent 
paragraphs,  has  been  established  by  a  unanimity  of  decision.  One 
member  of  a  partnership  cannot,  during  its  existence,  without 
the  knowledge  and  consent  of  his  copartners,  take  a  renewal  lease, 
in  his  own  name  or  otherwise,  for  his  own  benefit  and  to  the  exclu- 
sion of  his  fellows,  of  premises  leased  by  the  firm  or  occupied 
by  them  as  tenants.  A  lease  so  taken  by  a  partner  inures  to  the 
benefit  of  the  whole  firm;  it  is  regarded  as  a  continuation  of  or  as 
''grafted  on"  the  old  lease;  a  trust  will  be  impressed 
upon  the  leasehold  estate ;  equity  will  treat  the  partner  as 
a  trustee  for  the  firm,  and  if  necessary  and  possible,  will  compel 
him  to  assign  the  renewal  lease  to  it;  if  a  condition  inserted  in  such 
lease  against  assigning  should  prevent  the  relief  of  an  actual  as- 
signment, it  will-  not  in  the  least  prevent  the  court  from  enforcing 
the  trust  by  compelling  the  partner  to  hold  the  legal  title  for  the 
benefit  of  all.  This  rule  applies  under  every  variety  of  circum- 
stances, provided  the  rights  of  the  other  partners  are  still  subsisting 
at  the  time  Avhen  the  renewal  lease  is  obtained.  It  operates  with 
equal  force  Avhether  the  renewal  lease  was  to  begin  during  the  con- 
tinuance of  the  firm  or  after  its  termination ;  whether  the  partner- 
ship was  for  an  undetermined  period,  or  was  to  end  at  a  specified 
time,  and  the  renewal  lease  was  not  to  take  effect  until  the  expira- 
tion of  that  prescribed  time;  whether  there  was  or  was  not  a  right 
in  the  firm,  by  contract,  custom,  or  courtesy,  to  a  renewal  of  the 
original  lease  from  the  lessor;  and  even  whether  the  landlord  would 
or  would  not  have  granted  a  new  lease  to  the  other  partners  or  to 
the  firm.  All  these  facts  are  wholly  immaterial  to  the  application 
of  the  doctrine,  for  its  operation  does  not  in  the  slightest  degree 
depend  upon  the  terms  and  provisions  of  the  original  lease,  nor 
upon  the  attitude  of  the  landlord.  The  doctrine  is  not  confined  to 
partners;  it  extends  in  all  its  breadth  and  with  all  its  effects  to 
trustees,  guardians,  and  all  other  persons  clothed  with  a  fiduciary 
character,  who  are  in  possession  of  premises  as  tenants  on  behalf 
of  their  beneficiaries,  or  who  are  in  possession  as  tenants  of  prem- 


^McLarren  v.  Brewer,  51  Me.  402,  IT.  &  B.  49:  Ferris  v.  Van  Vechteii,  73 
N.  Y.  113,  H.  &  B.  4G1;  Haney  v.  Legg,  129  Cal.  619,  30  South.  34,  87  Am.  St. 
Rep.    81. 


§  1051  EQUITY     JLiaSPRUDEXCE.  GOO 

ises  in  which  their  beneficiaries  are  interested.^  As  this  rule 
results  from  the  relation  of  trust  and  confidence  existing-  between 
the  partners  or  other  persons  interested,  it  might  be  regarded  as  an 
outgrowth  of  the  doctrine  formulated  in  the  preceding  paragraph. 
It  is  more  directly,  however,  a  particular  application  of  a  broad 
principle  of  equity,  extending  to  all  actual  and  quasi  trustees,  that  a 
trustee,  or  person  clothed  with  a  fiduciary  character,  shall  not  be 
permitted  to  use  his  position  or  functions  so  as  to  obtain  for  himself 
any  advantage  or  profit  inconsistent  with  his  supreme  duty  to  his 
beneficiary. 

§  1051.  6.  Wrongful  Appropriation  or  Conversion  into  a  Differ- 
ent Form  of  Another's  Property. — In  the  foregoing  fourth  form 
of  constructive  trust  the  fiduciary  person  appropriates  trust  funds 
in  the  purchase  of  property,  but  the  court  imputes  no  wrongful 
intent;  it  assumes  that  he  was  acting  in  pursuance  of  his  trust. 
In  the  present  case  the  wrongful  intent  necessarily  exists;  the  in- 
tended violation  of  a  fiduciary  duty  and  of  another's  beneficial  right' 
is  the  essential  element.  A  constructive  trust  arises  whenever  an- 
other's property  has  been  wrongfully  appropriated  and  con- 
verted into  a  different  form.  If  one  person  having*  money  or  any 
kind  of  property  belonging-  to  another  in  his  hands  wrongfully 
uses  it  for  the  purchase  of  lands,  taking-  the  title  in  his  own  name; 
or  if  a  trustee  or  other  fiduciary  person  wrongfully  converts  the 
trust  fund  into  a  different  species  of  property,  taking  to  himself 
the  title ;  or  if  an  agent  or  bailee  wrongfully  disposes  of  his  prin- 
cipal's securities,  and  with  the  proceeds  purchases  other  securities 
in  his  own  name, — in  these  and  all  similar  cases  ecpiity  impresses 
a  constructive  trust  upon  the  new  form  or  species  of  property,  not 
only  while  it  is  in  the  hands  of  the  original  wrong-doer,  but  as  long 
as  it  can  be  folloAved  and  identified  in  whosesoever  hands  it  may 
come,  except  into  those  of  a  bona  fide  purchaser  for  value  and  with- 
out notice :  and  the  court  will  enforce  the  constructive  trust  for 
the  benefit  of  the  beneficial  owner  or  original  cestui  que  trust  who 
has  thus  been  defrauded.  As  a  necessary  consequence  of  this 
doctrine,  whenever  i)roperty  subject  to  a  trust  is  wrongfully  sold' 
and  transferred  to  a  bona  fide  purchaser,  so  that  it  is  freed  from 
the  trust,  the  trust  immediately  attaches  to  the  price  or  proceeds 
in  the  hands  of  the  vendor.  Avhether  such  price  be  a  debt  yet.  unpaid 

^Phyfe  V.  Warden.  5  Paipre  268.  28  Am.  Deo.  4-30:  IVritcliell  v.  Reed.  61 
X.  Y.  12.3.  1.30.  m  Am.  Rep.  2.52.  H.  &:  B.  48;  Triee  v.  Comstock.  57  C.  C. 
A.  646,  121  Fed.  620.  61  L.  R.  A.  176  (general  doctrine  extended  to  case 
where  agent  for  purchase  makes  use  of  information  acquired  in  his  fiduciary 
capacity  to  purchase  for  himself  after  the  termination  of  the  agency;  see  ant& 
§    9.39). 


t)01  TRUSTS    ARISING    BY    OPERATION    OF    LAW.  §  105'^ 

"iJue  from  the  purchaser,  or  a  different  kind  of  property  taken 
m  exchange,  or  even  a  sum  of  money  paid  to  the  vendor,  as  long 
^s  the  money  can  be  identified  and  reached  in  liis  hands  oi-  unch-r 
his  control.'  It  is  not  essential  for  the  application  of  this  doctrine 
that  an  actual  trust  or  fiduciary  relation  should  exist  between 
the  original  wrong-doer  and  the  beneficial  owner.  Wherever  one 
person  has  wrongfully  taken  the  property  of  another,  and  convert'd 
it  into  a  new  form,  or  transferred  it,  the  trust  arises  and  follows 
the  jiroperty  or  its  proceeds." 

§  1052.  7.  Wrongful  Acquisition  of  the  Trust  Property  by  a 
Trustee  or  Other  Fiduciary  Person. — In  several  of  the  preceding 
subdivisions,  the  trustee,  by  means  of  trust  funds,  has  acquired 
property  from  a  third  person,  which  thereb.y  becomes  subject  to 
the  original  trust.  The  present  species  includes  all  the  various 
instances  in  which  the  trustee  or  other  fiduciary  person  w^rong- 
fully  acquires  the  title  and  beneficial  use  of  the  very  trust  prop- 
erty itself, — the  property  in  specie  which  forms  the  subject-matter 
of  the  trust.  The  doctrine  may  be  stated  in  its  most  general  form, 
that  whenever  a  trustee  or  person  clothed  with  any  fiduciary  char- 
acter taking  advantage  of  the  relation,  and  by  means  of  it  acquires 
the  title  or  use  of  the  trust  property,  or  makes  a  profit  or  advantage 
to  himself  out  of  the  trust  and  confidence,  then  a  constructive  trust 
is  impressed  upon  such  property,  profits,  or  proceeds  in  his  hands, 
in  favor  of  the  original  beneficiary.  The  following  are  some  of 
the  most  important  applications  of  this  doctrine:  When  a  trustee, 
administrator,  agent,  attorney,  or  other  fiduciary  person,  without 
the  knowledge  or  consent  of  his  beneficiary,  purchases  the  trust 
property  at  a  public  or  private  sale;  or  when,  by  taking  advantage 
of  the  trust  and  confidence  reposed,  and  of  the  superiority  conferred 
upon  him  by  the  relation,  he  uneonscientiously  acquires  title  to  the 
trust  property  by  purchase  or  gift  directly  from  the  ben<'ficiary; 
or  w^hen  he  uses  the  trust  property  for  his  oavu  benefit,  or  in  his 
own  business,  and  by  means  of  such  use  obtains  additional  gains 
and  profits,— in  these  and  all  similar  cases  equity  impresses  a  con- 
structive trust  upon  the  property  purchased  oi*  obtained,  and  upon 
the  profits  and  acquisitions  so  made,  for  the  benefit  of  the  party 
beneficially  entitled.^     This  form   of  constructive  trusts  embraces 

'Pennoll  v.  Dpffpll.  4  Dp  Opx.  ^L  &  d.  372.  388;  Swinburne  v.  Swinburne. 
28  N.  Y.  .568;  McDonoufjli  v.  O'Nipl.  113  Mass.  02.  Sli.  211:  Mnrrny  v.  Lyl- 
burn.  2  Johns.   Ch.   441.  443,   1    Scott  .52fi. 

^Xewton  V.  Portpr,  60  N.  Y.  133.  140.  2;-)  Am.  Rop.  1.12.  II.  &  B.  477. 
Sbpp.   201. 

'Sep  antp,  §§  0.57-903;  Nanty-Glo.  ptf..  Co.  v.  Crave.  L.  R.  12  Ch.  Div. 
738:  Davis  v.  Rork  f'repk.  etc..  Co..  .").")  Cal.  350.  3fi  Am.  Rep.  40;  Vallettp 
V.  Tedens,   122   111.  007,  3  Am.   St.   Rep.   r)02.    14   N.   E.   .52. 


§  1054  EQUITY     JLIJISI'KUDENCE.  !802 

iiiauy  particular  instances,  and  the  principle  is  extended  to  all 
abuses  of  confidence,  whereby  the  one  in  whom  the  confidence  is 
r. posed  obtains  an  advantage. 

§  1053.  8.  Trusts  ex  Maleficio. — In  general,  whenever  the  legal 
title  to  property,  real  or  personal,  has  been  obtained  through  actual 
fraud,  misrepresentations,  concealments,  or  through  undue  influ- 
ence, duress,  taking  advantage  of  one's  weakness  or  necessities,  or 
through  any  other  similar  means  or  under  any  other  similar  cir- 
cumstances which  render  it  unconscientious  for  the  holder  of  the 
Jegal  title  to  retain  and  enjoy  the  beneficial  interest,  equity  im- 
presses a  constructive  trust  on  the  property  thus  acquired  in  favor 
of  t)ie  one  who  is  truly  and  equitably  entitled  to  the  same,  although 
lu^  may  never  perhaps  have  had  any  legal  estate  therein;  and 
a  court  of  equity  has  jurisdiction  to  reach  the  property  either  in 
the  hands  of  the  original  wrong-doer,  or  in  the  hands  of  any  sub- 
sequent holder,  until  a  purchaser  of  it  in  good  faith  and  without 
notice  acf|uires  a  higher  right,  and  takes  the  property  relieved 
from  the  trust.  The  forms  and  varieties  of  these  trusts,  which  are 
termed  ex  malefacio  or  ex  delicto,  are  practically  without  limit. 
The  principle  is  applied  wherever  it  is  necessary  for  the  obtain- 
ing of  complete  justice,  although  the  law  may  also  give  the  remedy 
of  damages  against  the  A^o-ong-doer.^  While  these  instances  are 
so  many  and  various,  there  are  certain  special  forms  of  frequent 
oecnrrence  and  great  importance  which  require  particular  mention. 

§  1054.  (1)  A  Devise  or  Bequest  Procured  by  Fraud. — Whenever 
a  person  procures  a  devise  or  bequest  to  be  made  directly  to  him- 
self,— and  thereby  preventing-  perhaps  an  intended  testamentary 
gift  to  another, — thi-ough  false  and  fraudulent  representations, 
assurances,  or  promises  that  he  will  carry  out  the  original  and 
true  purpose  of  the  testator,  and  will  apply  the  devise  or  bequest 
to  the  benefit  of  the  third  person  who  is  the  real  object,  and  who 
would  otherwise  have  been  the  actual  recipient  of  the  testator's 
bounty,  and  after  the  testator's  death  he  refuses  to  comply  with 
his  former  assurances  or  promises,  but  claims  to  hold  the  property 
in  his  own  right  and  for  his  own  exclusive  benefit. — in  such  case 
e<iuity  will  enforce  the  obligation  by  impressing  a  trust  upon  the 
property  in  favor  of  the  one  who  has  been  defrauded  of  the  testa- 
tor's intended  gift,  and  by  treating  the  actual  devisee  or  legatee 
as  a  trustee  holding  the  mere  legal  title,  and  by  compelling  him  to 
carry  the  trust  into  effect  through  a  conveyance  to  the  one  who 

'Dyer  v.  Dyer.  1  Lead.  Cas.  Eq.  4t]i  Am.  ed.  .314.  350-304.  H.  &  B.  452, 
Sh.  208;  Cowin  v.  Hurst,  124  Mich.  54."),  83  Am.  St.  Rep.  344.  83  N.  W. 
274;  Moore  v.  Crawford,  130  U.  S.  122,  128,  9  Sup.  Ct.  Rep.  447,  32  L.  ed. 
S78. 


G03  TRUSTS    A1M8ING    BY    OrEUATIOX    OF    LAW.  §  10",; 

is  beneficially  interested.  It  is  not  necessarj'  that  the  representa- 
tions, assurances,  or  promises  of  the  actual  devisee  or  legatee  should 
be  in  writing;  they  may  be  entirely  verbal.  There  are  a  few  cases 
which  seem  to  hold  that  a  trust  will  arise  under  these  circum- 
stances from  a  mere  verbal  promise  of  the  devisee  or  legatee  to  hold 
the  property  for  the  benefit  of  another  person.  This  position,  how- 
ever, is  clearly  opposed  to  settled  principle.  The  only  ground  upon 
which  such  a  trust  can  be  rested,  and  is  rested  by  the  overwhelming 
weight  of  authority,  is  actual  intentional  fraud. ^ 
(  §  1055.  (2)  Purchase  upon  a  Fraudulent  Verbal  Promise. — A 
Kecond  well-settled  and  even  common  form  of  trusts  ex  maleficio 
/occurs  whenever  a  person  acquires  the  legal  title  to  land  or  other 
property  by  means  of  an  intentionally  false  and  fraudulent  verbal 
promise  to  hold  the  same  for  a  certain  specified  purpose, — as,  for 
example,  a  promise  to  convey  the  land  to  a  designated  individual, 
or  to  reeonvey  it  to  the  grantor,  and  the  like, — and  having  thus 
fraudulently  obtained  the  title,  he  retains,  uses,  and  claims  the 
property  as  absolutely  his  own,  so  that  the  whole  transaction  by 
means  of  which  the  ownership  is  obtained  is  in  fact  a  scheme  of 
actual  deceit.  Equity  regards  such  a  person  as  holding  the  property 
charged  with  a  constructive  trust,  and  will  compel  him  to  fulfill  the 
trust  by  conveying  according  to  his  engagement.^ 

§  1056.     (3)  No  Trust  from  a  Mere  Verbal  Promise. — The  forego- 
ing' cases  should  be   carefully  distinguished  from  those  in  which 


V* 


'Thynn  v.  Thynn,  1  Vein.  29G.  1  Scott  4.-)7 ;  O'Hara  v.  Diidley,  95  X.  Y. 
40.'?,  47  Am.  Rep.  5-3,  H.  &  B.;  Curdy  v.  Bevton.  79  Cal.  420,  12  Am.  St. 
Eep.   1.57,  21  Pac.  858,  H.  &  B.   501. 

'The  trust  in  such  cases  arises  wholly  from  the  fraud:  the  statute  of 
frauds  requiring  a  written  declaration  of  trust  does  not  apply,  since  trusts 
ex  maleficio  are  excepted  from  its  operation:  Laing  v.  McKee,  13  Mich.  124, 
87    Am.    Dee.    738. 

The  doctrine  is  often  used  with  great  efficacy  to  prevent  the  triumph  of 
fraud,  and  to  protect  persons  under  necessities,  in  cases  where,  at  execution 
sale,  or  mortgage  foreclosure,  or  other  compulsory  public  sale,  a  party  buys 
in  the  land  under  a  prior  fraudulent  promise  made  to  the  owner  that  the 
purchaser  will  take  the  title,  hold  the  property  for  the  benefit  of  such  owner, 
and  \vi\\  reeonvey  to  him  on  being  repaid  the  amount  advanced  for  the  pur- 
chase price;  and  having  thus  by  a  fraudulent  contrivance  cut  ofl'  com])etiti()n. 
and  prevented  the  owner  from  making  other  arrangement>  to  protect  his 
property,  and  having  obtained  the  property  perhaps  for  nuich  less  than  its 
real  value,  he  refuses  to  abide  by  his  verbal  promise,  and  retains  the  land 
or  other  property  as  absolutely  his  own.  Equity  will  relieve  the  defrauded 
owner  by  impressing  on  the  property  a  trust  ex  maleficio,  and  by  treating 
the  purchaser  as  a  trustee  in  invitum.  This  application  of  the  doctrine  was 
explained  and  the  authorities  were  examined  in  Ryan  v.  Dox,  34  N.  Y.  307; 
90  .\m.  Dec.  606,  H.  &  B.  488.  See,  also.  Pope  v.  Dafrar,  176  111.  478,  ,52 
N.  E.  58;   Whitney  v.  Hay,   181  U.  S.  77,  21  Sup.  Ct.  Rep.  537,  45  L.  ed.  758. 


§  1U5S  EQUITY     JLKlal'KUDEXCE.  G04 

there  is  a  mere  verbal  promise  to  purchase  and  convey  land.  In 
order  that  the  doctrine  of  trusts  ex  maleficio  with  respect  to  land 
nia}^  be  enforced  under  any  circumstances,  there  must  be  some- 
thing more  than  a  mere  verbal  promise,  however  unequivocal,  other- 
Avise  the  statute  of  frauds  would  be  virtually  abrogated ;  there 
must  be  an  element  of  positive  fraud  accompanying  the  promise, 
and  by  means  of  which  the  acquisition  of  the  legal  title  is  wrong- 
fully consummated.  Equity  does  not  pretend  to  enforce  verbal 
promises  in  the  face  of  the  statute ;  it  endeavors  to  prevent  and 
punish  fraud,  by  taking  from  the  wrong-doer  the  fruits  of  his 
deceit,  and  it  accomplishes  this  object  by  its  beneficial  and  far- 
reaching  doctrine  of  constructive  trusts.^ 

§  1057.  (4)  Trusts  in  Favor  of  Creditors, — In  carrying  out  the 
general  principle  of  trusts  for  the  purpose  of  working  ultimate 
justice,  and  reaching  property  where  the  legal  title  has  been  parted 
with,  and  is  beyond  the  scope  of  legal  process,  a  constructive  trust 
is  said  to  arise  in  favor  of  judgment  creditors  with  respect  to  the 
property  of  their  debtors,  which  has  been  transferred  with  the  in- 
tent to  defraud  the  creditors  of  their  rights,  or  of  W'hich  the  legal 
title  is  vested  in  third  persons  wath  a  like  fraudulent  intent,  or 
which  is  of  such  a  nature  that  it  cannot  be  taken  by  execution  upon 
judgments  in  legal  actions/ 

§  1058,  Rights  and  Remedies  of  the  Beneficiary, — The  essential 
nature  of  constructive  trusts  have  been  explained  in  a  former  par- 
agraph.^ Equity  regards  the  cestui  que  trust,  in  all  instances  ex- 
cept that  last  mentioned  in  favor  of  creditors,  although  wnthout  any 
legal  title,  and  perhaps  without  any  written  evidence  of  interest, 
as  the  real  owner,  and  entitled  to  all  the  rights  and  consecjuences 
of  such  ownership.  Numerous  important  questions  concerning  the 
conduct  of  trustees,  their  relations  with  the  trust  property  an^ 
with  the  beiieficiaries.  Avliich^fTin.se^rom  expi'css  trusts,  r,.;:  :;;i\;;e 
no  existence  in  connection  with  constructive  trusts.  Every  act  of 
the  trustee  in  holding,  managing,  investing,  or  otherwise  dealini!' 

'Seymour  v,  Cuslnvay,  100  Wis.  .580,  77  X.  W.  769,  G9  Am.  St.  Rep.  957; 
Feenev  v.  Howard,  79  Cal.  52.5,  12  Am.  St.  Rep.  162,  21  Pac.  9S4.  If,  how- 
ever, the  parties  stood  in  a  relation  of  confidence  with  each  other,  the  fact 
tliat,  at  the  time  of  the  conveyance  and  promise  to  reconvey,  there  was  no 
fraudulent  intent  on  tlie  part  of  the  trrantee  is  immaterial ;  a  constructive 
trust  arises:  See  Wood  v.  i;al)e,  90  X.  Y.  414,  48  Am.  Rep.  040  (mother 
and    son). 

'The  trust  is,  in  reality,  one  in  name  alone;  the  creditor's  right  to  reach 
the  debtor's  property  is  in  no  true  sense  an  interest  in  that  property:  it  is, 
at  most,  only  an  equitable  lien  on  the  property.  See  Savage  v.  ^Murphy,  34 
N.   Y.   508,   90   Am.   Dec.   733. 

^See   ante,    §    1044. 


(jUi)  TUUSTS    AKl^iXU    LiV    orEliATlON    OF    LAW.  5  1058 

with  the  trust  property  as  tlioiigh  he  eould  retain  it,  is  itself  a 
violation  of  his  paraniouut  obTigation  to  the  beneficiary,  li'  tiie 
trustee  refuses  or  delays  to  convey  the  property  to  its  beneficial 
owner,  and  retains  it,  derives  benefit  from  its  use,  and  ai)propriates 
its  rents,  x>i"ofits,  and  income,  he  must  account  for  all  that  he  thus 
receives,  and  pay  over  the  amount  found  to  be  due  to  the  cestui 
'jue  trust,  as  well  as  convey  to  him  the  corpus  of  the  trust  fund.^ 
The  beneficiary,  therefore,  being  the  true  owner,  may  always,  by 
means  of  an  e({uitable  suit,  compel  the  trustee  to  convey  or  assign 
the  corpus  of  the  trust  property,  and  to  account  for  and  pay  over 
the  rents,  profits,  issues,  and  income  which  he  has  actually  received, 
or,  in  general,  which  he  might  with  the  exercise  of  reasonable  care 
and  diligence  have  received.-  In  such  a  suit  the  plaintilT  is  also 
entiiled  to  any  additional  or  auxiliary  remedy,  such  as  injunction, 
cancellation,  accounting,  which  may  be  necessary  to  .render  his 
final  relief  fully  efficient.  No  change  in  the  form  of  the  trust  property, 
eff'ected  by  the  trustee,  will  impede  the  rights  of  the  beneficial  own- 
er to  reach  it  and  to  compel  its  transfer,  provided  it  can  be  identi- 
fied as  a  distinct  fund,  and  is  not  so  mingled  up  with  other  moneys 
or  property  that  it  can  no  longer  be  specifically  separated.  If  the 
trust  property  has  been  transferred  to  a  bona  fide  purchaser  for 
value  without  notice,  or  has  lost  its  identity,  the  beneficial  owner 
must,  and  under  other  circumstances  he  may,  resort  to  the  personal 
liability  of  the  wrong-doing  trustee.^  The  existence  of  a  construc- 
tive trust,  as  of  a  resulting  one,  must  be  proved  by  clear,  unequiv- 
ocal evidence.* 


SECTION  VI. 
POWERS.    DUTIES,    AND    LIABILITIES    OF    EXPRESS    TRUSTEES. 

ANALYSIS. 

S   lOoO.  Divisions. 

§   1060.  First.  Powers   ami    iiioilcs   of   acting. 
§§    1001-1083.  Second.  Duties    and    liabilities. 
§§   10(i2-10Go.  I.  To  carrj  the  trust   into   execution. 

§   1062.  1.  The  duty  to  conform   strictly   to   the    directions    of   the   trust. 

§   1063.  2.  The   duty   to   account. 

§   1064.  3.  The  duty  to  obey    directions    of    the    court. 

§    1065.  4.  The  duty  to  restore    tlic    trn<t    property    at    the    end    of    the 
trust. 

="  Ravenswood,   S.   &   G.   Ry.   Co.  v.   Woodyard,  40   W.   Va.   r>r)S.   33   S.   E.   2.sr). 
'Latiirop  V.  Hampton,  31   Cal.   17,  89  Am.  Dec.   141. 

^Ferclien   v.   Arndt,  20   Ore.    121,   46  Am,   St.   Rep.   603,   37   Pac.    161,   29   L. 
R.   A.   664. 


$5  lOGO  EQUITY    JURISPRUDENCE.  60o 

§§  lOGG-1074.  II.  To   use   care   and   diligence. 

§   1067.  I.  The   duty   of   ijrotecting  ihe   trust   pvoiDerty. 

§   1068.  2.  The   duty   not   to   delegate   his   authority. 

§   106U.  3.  The   duty   not   to   surrender   entire   control   to   a   co-trustee. 

§    1070.  4.  The    amount   of   care   and   diligence    required. 

§   1071.  5.  The   duty   as   to    investments. 

§   1072.  The    necessity    of    making    investments. 

§  1073.  Kinds  of  investments:  When  particular  securities  are  expressly 
autliorized. 

§   1074.  The   same:     When  no   directions   are  given. 
i;§   1075-1078.  111.  To    act    with    good    faith. 

§  1075.  1.  The  duty  not  to  deal  "with  the  trust  property  for  his  own 
advantage. 

§   1070.  2.  The  duty  not  to  mingle  trust  funds  with  his  own. 

§  1077.  3.  Tlie  duty  not  to  accept  any  position,  or  enter  into  any  rela- 
tion, or  do  any  act  inconsistent  with  the  interests  of  the 
heneticiary. 

§   1078.  4.  The    duty    not   to    sell    trust   property   to   himself,    nor    to   buy 
from    himself. 
§§    1079-1083.  IV.  Breach    of    trust,    and    liability    tlierefor. 

§    1080.  Nature  and  extent  of  the  liability. 

§   1081.  Liability    among    co-trustees, 

§    1082.  Liability   for   co-trustees. 

§    1083.  The   beneficiary    accjuiescing,   or   a  party   to   the   breach   of   trust. 

§    1084.  Third.  The    trustee's    compensation    and    allowances. 

§   1085.  Allowances    for   expenses    and   outlays;    lien   therefor. 

§    1086.  Fourth.  Ivcmoval    and    appointment    of    trustees. 

§    1087.  Appointment    of    new    trustees. 

§  1059.  Divisions. — The  duties  and  liabilities  of  the  trustees 
and  corresponding  rights  of  the  benficiaries  in  trusts  arising  by 
operation  of  law  have  been  explained  in  the  preceding  section.  The 
discussions  of  the  present  section  refer  primarily  and  mainly  to 
the  powers,  duties,  and  liabilities  of  the  trustees  in  express  trusts 
of  all  kinds  and  for  all  purposes,  and  the  statement  of  their  duties 
and  liabilties  necessarily  includes  the  correlative  rights  and  reme- 
dies of  the  cestuis  que  trustent;  some  of  the  conclusions  may,  how- 
over,  apply  to  the  trustees  in  resulting  and  constructive  trusts. 
The  entire  subject  embraces  the  following  subdivisions:  1.  The 
trustee's  powers  and  modes  of  acting;  2.  His  duties  and  liabilities; 
,3.  His  compensation  and  alloAvanees;  4.  Removal  and  appointment 
of  trustees. 

§  1060.  First.  Powers  and  Modes  of  Acting. — Although  an  ac- 
ceptance by  the  trustee  is  not  reciuired  in  order  to  assure  the 
interest  and  rights  of  the  beneficiaiy,  it  is  essential  to  the  exist- 
ence of  any  power  or  liability  of  the  trustee  himself:  both  his 
powers  and  his  liabilities  originate  upon  his  acceptance.^  The  ac- 
ceptance may  be  express  by  executing  an   instrument  in  writing, 

^See  ante,   §   1007;   Thorne  v.  Deas,  4  Johns.   84. 


607  DUTIES    OF    EXl'KKSS    TKLSTEES  §  10G3 

or  implied  from  acts  done  by  the  trustee  in  carrying  the  trust  into 
effect  or  in  dealing  with  the  trust  property.-  When  property  is 
given  upon  trust  to  two  or  more  trustees,  they  become  joint  owners, 
and,  in  general,  all  who  have  accepted  must  unite  in  conveyances 
and  similar  solemn  and  important  acts."'  It  results  from  the  joint 
tenancy  of  trustees  that  w4ien  one  dies  or  resigns,  all  the  estate 
and  powers  remain  the  survivors  or  survivor ;  and  this  right  of  sur- 
vivorship will  not  be  affected  merely  because  there  is  a  power 
of  appointing  new  trustees  in  the  place  of  those  dying  or  ceasing  to 
act;  it  will  operate  until  the  new  trustees  are  appointed."*  Upt)n 
the  death  of  a  single  trustee  or  a  last  survivor,  the  trust  may  de- 
volve upon  his  heir  or  administrator  until  a  new  trustee  is  appoint- 
ed.-' 

§1061.  Second.  Duties  and  Liabilities. — In  this  subdivision  I 
shall  state  the  general  duties  of  express  trustees,  the  violations  of 
them  which  constitute  a  breach  of  trust,  and  the  nature  and  extent 
of  the  liabilities  incurred  thereby.  The  doctrines  to  be  examined 
are  those  which  courts  of  equity  apply  in  controlling  the  conduct 
of  all  classes  of  persons  who  are  clothed  with  fiduciary  relations 
towards  property  in  which  others  are  beneiicially  interested,  in- 
cluding trustees  proper,  executors  and  administrators,  guardians 
of  infants  or  of  persons  non  compotes  mentis,  directors  or  managers 
of  corporations,  and  other  quasi  trustees.^  All  the  various  duties 
of  actual  and  quasi  trustees  may  be  grouped  under  three  general 
heads:  1.  To  carry  out  the  trust;  2.  To  use  care  and  diligence;  3. 
To  act  with  good  faith;  and  each  of  these  contains  several  more 
specific  obligations. 

§1062.  I.  To  Carry  the  Trust  into  Execution.— 1.  The  Duty 
to  Conform  Strictly  to  the  Directions  of  the  Trust. — Under  the  gen- 
eral obligation  of  carrying  the  trust  into   execution,  trustees  and 

-Sec,  also.  G'irard  v.  Fhitterer,  84  Ala.  32.3,  4  South.  292.  As  stated  in 
§  1007,  ante,  a  trustee's  acceptance  is  presumed,  therefore  to  avoid  liability 
he  should  disclaim  before  conduct  indicating  acceptance,  or  before  the  cestui 
has  acted  in  reliance  on  the  presumed  acceptance.  The  disclaimer  may  be 
either  by  deed  or  parol  ;  see  Adams  v.  Adams,  21  Wall.  IS."),  22  L.  ed.  504, 
Ames  Trusts  227. 

=■6081011  V.  Pvobbins,  120  :\Iass.  384;  ^Yildcr  v  Eanney,  0.")  X.  Y.  7.  3 
Keener   092. 

■■  Lane  V.  Debenham,  11  Hare  188.  Ames  Trusts  .513. 

'' Robson  V.  Flifjht,  4  De  Gex,  J.  &  S.  608  (the  heir  at  law  in  such  case 
cannot  exercise  discretionary  powers  given  to  the  trustee,  although  he  holds 
the  estate  subject  to  the  trust)  ;  Dillard  v.  Dillard,  97  Vt.  434.  :!4  S.  K.  (10 
(containing  a  good  statement  as  to  the  effect  of  the  death  of  one  trustee 
when  a  discretion  was  vested  in  three  of  them). 

'  The  text  is  cited,  as  respects  corporation  directors,  in  Boswortli  v.  Allen, 
168  N.  Y.    157,   164,  85  Am.  St.  Rep.  667,  61  N.  E.   163,  55  L.  R.  A.  751. 


§  1062  EQUITY    JURISPRUDENCE.  608 

all  fiduciary  persons  are  bound,  iu  the  first  place,  to  conform  strietlj- 
to  the  directions  of  the  trust.  This  is  in  fact  the  corner-stone  upon 
which  all  other  duties  rest,  the  source  from  which  all  other  duties 
take  their  origin.  The  trust  itself,  whatever  it  be,  constitutes  tlie 
charter  of  the  trustee's  power  and  duties;  from  it  he  derives  the 
rule  of  his  conduct;  it  prescribes  the  extent  and  limits  of  his 
authority;  it  furnishes  the  measure  of  his  obligations.  If  the  trust 
is  express,  created  by  deed  or  will,  then  the  provisions  of  the  m- 
.strunient  must  be  followed  and  obeyed.  If  the  fiduciary  relation 
is  established  by  law  and  regulated  by  settled  legal  rules,  then 
these  legal  rules  must  constantly  guide  and  restrain  the  conduct 
ot  the  one  Avho  occupies  the  relation.  In  this  manner  the  acts, 
powers,  duties,  and  liabilities  of  executors,  administrators,  guard- 
ians, and  corporation  directors  are  governed  by  a  fixed  system  of  le- 
gal rules  which  constitute  their  instrument  or  declaration  of  trust. ^ 
A  trustee  can  use  the  property  only  for  the  purposes  contemplated 
in  the  trust,  and  must  conform  to  the  provisions  of  the  trust  in 
their  true  spirit,  intent,  and  meaning,  and  not  merely  in  their  let- 
ter. If,  therefore,  through  non-feasance,  he  omits  to  carry  the  trust 
into  execution,  or  through  misfeasance  he  disobeys  the  directions 
of  the  trust,  he  renders  himself  in  some  manner  liable  to  the  ben- 
eficiary whose  rights  have  thus  been  violated.-  Trustees,  in  carry- 
ing the  trust  into  execution,  are  not  confined  to  the  very  letter 
of  the  provisions.  They  have  authority  to  adopt  measures  and  to 
do  acts  which,  though  not  specified  in  the  instrument,  are  implied 
iu  its  general  directions,  and  are  reasonable  and  proper  means  for 
making  them  effectual.  This  implied  discretion  in  the  choice  of 
measures  and  acts  is  subject  to  the  control  of  a  court  of  equity,  and 
must  be  exercised  in  a  reasonable  manner.'     It  follows  from  their 

^  In  the  case  of  corporation  directors  and  officers,  the  charters  and  by-laws 
are  tlie  primaiy  source  of  the  fiduciary  power  and  duty.  Even  if  the  trust  is 
a  pure  resulting  or  constructive  one,  the  simple  duty  to  convey  the  property 
and  pay  over  all   its  profits  to  the  beneficiary   is  marked   out  by  the   law. 

-Vyse  v.  Foster,  L.  R.  8  Ch.  309;  Boisseau  v.  Boisseau,  79  Va.  73.  52  Am. 
Rep.  616;  In  re  Cole's  Estate,  102  Wis.   1,  72  Am.  St.  Rep.  854,  78  N.  W.  402 

^Harvard  College  v.  Weld,  159  Mass.  114,  34  N.  E.  175  ("to  manage  and 
invest  to  the  best  advantage"  carries  a  power  to  sell);  In  re  New,  (1901)  2 
Ch.  534  (court  may  sanction  acts  which  the  trustees  themselves  have  no 
power  to  do.  in  case  of  unforseen  emergency).  \^'henever  the  instrument 
of  trust  expressly  confers  upon  trustees  a  discretion  as  to  acts  and  measures 
in  carrying  out  the  general  object  of  the  trust,  a  court  of  equity  will  not 
generally  interfere  to  control  such  discretion,  except  to  prevent  its  abuse  or 
unreasonable  exercise  to  the  actual  or  probable  prejudice  of  the  beneficiaries: 
Tabor  v.  Brooks,  L.  R.  10  Ch.  Div.  273. 

An  interesting  illustration  of  such  control  by  the  court  is  the  case  of  Collister 
V.   Fassitt,    163   N.   Y.   281,   57    N,    E.   490,    79    Am,    St.    Rop.    580    (discretion 


609  DUTIES    Oi<'    EXrUKsiS    TRUSTEES.  §  1065 

genera)  duty  that  trustees  canuot  set  up  the  adverse  title  of  a 
stranger  against  their  cestuis  que  trustent,  and  much  less  buy 
up  anil  hold  such  adverse  title  for  their  own  benefit.* 

§  1063.  2.  The  Duty  to  Account. — As  a  branch  of  the  general 
obligation  of  carrying  the  trust  into  execution,  a  trustee  is  also 
bound  to  account  for  all  the  trust  property.  He  must  not  only  ren- 
der a  full  account  of  his  conduct  at  the  time  of  final  settlement, 
but  it  is  one  of  his  most  imperative  duties  to  keep  regular  and  accu- 
rate accounts  during  the  whole  course  of  the  trust  of  all  property 
coming  into,  passing  out  of,  or  remainiuf?  in  his  hands.  These 
accounts  must  clearly  distinguish  between  the  trust  property  and 
his  own  individual  assets ;  for  the  two  should  never  be  mingled 
in  the  accounts  nor  in  use ;  they  should  show  all  receipts  and  pay- 
ments, and  should  at  all  times  be  open  to  the  inspection,  and  pro- 
duced at  the  demand  of  the  beneficiary.^ 

§  1064.  3.  The  Duty  to  Obey  Directions  of  the  Court.— Wherev- 
er there  is  any  bona  fide  doubt  as  to  the  true  meaning  and  intent 
of  provisions  of  the  instrument  creating  the  trust,  or  as  to  the 
particular  cour.se  which  he  ought  to  pursue,  the  trustee  is  always 
entitled  to  maintain  a  suit  in  equity,  at  the  expense  of  the  trust 
estate,  and  obtain  a  judicial  construction  of  the  instrument,  and 
directions  as  to  his  own  conduct.^  Such  directions  he  must,  of 
course,  faithfully  obey,  and  if  he  does  so,  he  will  be  relieved 
from  all  responsibility  therefor.  Wherever  any  suit  or  proceeding 
is  instituted  by  the  beneficiary  or  other  person  interested,  and  the 
court  by  its  decree  or  order  therein  directs  anything  to  be  done 
or  omitted  by  the  trustee,  such  directions  are  imperative,  and  must 
be  implicitly  obeyed.  A  refusal  or  neolect  to  obey  may  render  the 
trustee  liable  to  summary  punishment,  as  for  a  contempt,  b.y  fine 
and   imprisonment. 

§  1065.  4.  The  Duty  to  Restore  the  Trust  Property  at  the  End 
of  the  Trust. — Finally,  when  the  trust  is  ended,  and  the  authority 
of  the  trustee  as  such  ceases,  it  is  his  duty  to  restore  the  property 
to  the  persons  who  are  then  entitled  to  it  by  the  terms  of  the 
instrument  or  by  operation  of  legal  rules.    To  accomplish  this  ob- 


as  to  amount  of  annuity  to  be  paid  bonoficiary:  court  named  a  fixed  amount 
when  the  discretion   had  not  been  fairly  and  honestly  exercised). 

''Xewsonie   v.   Flowers.   .30   Beav.   461. 

*A  failure  to  keep  full   or  accurate  accounts  raises  all   presumptions  ajjainst 

the  trustee;   it  may  subject  him   to  peciuiiary  loss  by  rendering  him  liable  to 

pay  interest,  or  charsfeable  with  moneys  received   and  not  duly  accounted  for-. 

Waterman  v.  Alden,  144  Til.  90,  32  N.  E.  972.  H.  &  B.  ,549;  Tn  re  Belt's  Estate, 

29  Wash.   .53,5,  92   Am.   St.  Rep.   910.   70   Pac.   74. 

*Lake  View  M.  &  M.  Co.  v.  Hammon.  93   Ala.   87.  9  South.  539. 
30 


^1067  EQUITY    JUlUSrilUDEXCE.  GIU 

ject,  he  is  bound  to  make  such  eonveyaiices  as  the  parties  may  re- 
quire, in  order  to  vest  the  title  in  them.^ 

§  1006.  II.  To  Use  Care  and  Diligence. — The  second  branch 
of  the  trustee's  obligation  is  to  use  care  and  diligence  in  the 
discharge  of  his  functions.  This  duty  is  very  comprehensive;  it 
extends  through  the  entire  range  of  his  conduct ;  it  is  entirely  inde- 
pendent of  the  question  of  good  faith,  for  he  will  be  liable  for 
its  failure  even  when  no  wrongful  intent  nor  violation  of  good  faith 
is  charged  upon  him.  He  may  be  liable  for  its  neglect  by  being 
held  answerable  for  property  actually  lost  through  want  of  care 
or  prudence,  and  also  for  moneys  which  he  might  have  received 
if  he  had  exercised  due  care,  prudence,  and  judgment  in  his 
investments  and  other  dealings  with  the  trust  estate.  This  head 
embraces  the  protection  of  trust  property,  the  delegation  of  authoi'- 
ity  to  third  persons  and  to  co-trustees,  the  amount  of  care  and  dili- 
gence requisite,  and  the  important  jmbject  of  making  investments, 
which  will  be  eonsidei'ed  in  the  order  here  indicated. 

§1067.  1.  The  Duty  of  Protecting  the  Trust  Property.— The 
trustee  is  boinid  to  })rotect  the  trust  property  in  every  reasonable  manner 
during  the  continuance  of  the  trust. ^  He  must  therefore  with  due 
diligence  obtain  po.ssession  of  the  trust  property,  and  must  then 
retain  it  securely  under  his  own  control.  He  cannot  divest  himself 
of  the  trust  by  conveying  or  assigning  the  property  awaj^  to  third 
persons,  unless  the  trust  itself  is  for  the  very  purpose  of  a  sale 
or  other  disposition ;  and  even  then  he  can  only  dispose  of  the 
propertj^  in  pursuance  of  the  trust,  and  to  carry  out  its  object. - 
As  a  mode  of  obtaining  secure  possession,  the  trustee  must  with  all 
reasonable  diligence  collect  debts  and  demands,  and  the  amounts 
due  on  choses  in  action,  when  required  to  do  so  by  the  terms 
of  the  trust  instrument,  or  by  the  nature  and  objects  of  the  trust, 
and  he  is  liable  for  losses  resulting  from  his  neglect  or  unreasonable 
delay  in  this  matter."  Trust  moneys  may  be  deposited  for  a  reason- 
able time  in  a  bank  having  good  credit,  if  the  deposit  is  made 
to  the  credit  of  the  trust  estate,  and  not  in  the  trustee's  individual 

'See  Goodson  v.  Ellison.  3  Ttuss.  "iS^.  Ames  Trusts  451;  Saunders  v.  Ncvil,  2 
Vern.  428,  Ames  Trusts  449;  \Yatts  v.  Turner,  1  E.  &  :\I.  G34,  Ames  Trusts 
45.3;  Jn  re  Browne's  Will,  27  Beav.  324,  Ames  Trusts  458. 

'Carpenter  v.  Carpentei',  12  R.  I.  544,  34  Am.  Kep.  71G;  Tarver  v.  Torrance, 
81  Ga.  261,   12  Am.  St.  Rep.  311,  G  S.  E.   177. 

"The  trustee  is,  of  course,  liable  for  any  loss  occasioned  by  his  undue  neglect 
to  obtain  possession  of  the  property  or  to  retain  it  securely:  Ex  parte  Ogle, 
L.  R.  8  Ch.  711,  Ames  Trusts  504. 

•■^  Lawson  v.  Copeland,  2  Br.  Ch.  Cas.  15G.  Ames  Ti-usts  492;  compare  Tor- 
rence  v.  Davidson.  92  X.  C.  437,  53  Am.  Rod.  419  (administrator  not  bound 
to  sue  on  a   debt   if  it  would  jirobnbly  occasion  lo-s  to  the  estate). 


6?1  DUTIES    OF    EXPRESS    TRUSTEES.  §1069 

name  and  account;  and  the  trustee  does  not  become  liable  for  a 
loss  occasioned  by  a  failure  of  the  bank  under  these  circumstances.* 
He  is  liable,  however,  for  a  loss  resulting'  from  a  failure  of  the 
bank  or  of  a  broker,  when  funds  which  ought  to  have  been  in- 
vested are  left  remaining  on  deposit,  or  when  the  deposit  is  in  the 
trustee's  individual  account  mingled  with  his  own  funds."'  For 
wrongful  payments  made  to  third  persons,  or  to  a  cestui  ([ue  trust, 
the  trustee  is  generally  chargeable.*' 

§  1068.  2.  The  Duty  not  to  Delegate  his  Authority.— The  office 
of  a  trustee  is  one  of  personal  eoniidenee,  and  can  not  be  delegated. 
A  trustee,  therefore,  unless  expressly  authorized  by  the  instrument 
of  trust,  can  not  delegate,  or  transfer,  or  intrust,  in  whole  or  in 
part,  his  powers  of  discretion  and  management  to  any  associate, 
subordinate,  or  assistant  Avho  takes  his  place  and  assumes  his  re- 
sponsibility. If  he  does  so,  he  remains  liable  to  the  beneficiary,  and 
is  chargeable  for  all  acts  and  omissions  of  his  delegate,  and  with 
all  losses,  whether  occasioned  by  the  latter 's  fraud,  neglect,  want 
of  good  faith,  or  other  cause.^  This  rule  does  not  prohibit  a  trastee 
from  employing  agents.  He  may  act  through  agents  in  his  admin- 
istrative operations  whenever  such  a  mode  of  dealing  is  in  accord- 
ance Avith  the  ordinary  course  of  business.- 

§  1069.    3.     The  Duty  not  to  Surrender  Entire  Control  to  a  Co- 


*Nonvooil   V.   Harness,   98    Ind.    134,   49   Am.   Eep.    739. 

'  Cann  v.  Cann,  33  Weekly  Rep.  40,  Ames  Trusts  481  (a  deposit  of  fovirtcen 
months  not  allowed)  ;  In  re  Arguello,  97  Cal.  196,  31  Pac.  937,  Ames  Trusts 
482  (deposit  in  name  of  trustee  individually).  As  to  mingling  trust  funds  with 
his   own,   see   post,    §    1076. 

"  Each  case  nmst,  to  a  great  extent,  stand  upon  its  own  circimistances. 
Where  a  payment  made  in  good  faith,  and  with  the  exercise  of  reasonable  care 
and  prudence,  turns  out  to  be  wrong,  the  trustee  may  not  be  obliged  to  make 
the  amount  good  for  the  benefit  of  the  estate.  See  Kimball  v.  Norton,  59  N. 
H.  1.  47  Am.  Rep.  171  (a  stipulation  bet\veen  a  savings  bank  and  a  depositor 
that  his  deposit  may  be  paid  to  any  one  presenting  his  book  does  )iot  relieve 
the   bank   from   the   duty  of  exercising  reasonable   care). 

'Anonymous,  3  Swanston  79,  Ames  Trusts  508;  Mortimer  v.  Latimer.  11 
Jurist  721.  Ames  Trusts  .508;  Cooke  v  Crawford,  13  Simons  91,  Ames  Trusts 
509. 

-'For  example,  he  may  employ  a  steward  or  manager  of  the  <'state  for  all 
matters  strictly  ministerial;  he  can,  of  course,  employ  dorks,  book-kcepcr.s 
and  the  like:  lie  can  deposit  trust  moneys  in  a  responsible  bank,  and  direct 
clerks  ^\llo  collect  sums  to  deposit  them  therein;  he  can  remit  moneys  by  bills 
drawn  on  and  by  responsible  parties,  etc.  If  he  act  in  such  manner  according 
to  the  customary  modes  of  doing  business,  in  good  faith  and  with  reasonable 
prudence,  he  will  not  be  responsible  for  the  loss  of  trust  funds  occurring  through 
such  dealings.  In  re  Belchier,  Ambler,  218,  Ames  Trusts  516;  Speight  v. 
Gaunt,  22  Ch.  Div.  727,  Ames  Trusts  518;  Field  v.  Field  (1894)  1  Ch.  425, 
Ames    Trusts    505. 


§  lUTU  EQUITY    JL'iaSPItUDEXCE.  G12 

trustee. — As  a  trustee  can  not  delegate  his  authority  to  a  subor- 
dinate, so  on  the  same  principle  he  can  not  idly  yield  or  surrender 
the  entire  control  of  the  trust  property  and  exercise  of  the  trust 
functions  to  his  co-trustees,  when  he  is  associated  in  the  trust 
Avith  others.  A  trustee  is  not  liable  under  all  circumstances  for 
every  act  or  default  of  his  co-trustees;  but  still,  in  general,  where 
there  are  several  trustees,  the  beneficiary  is  entitled  to  that  se- 
curity and  protection  which  result  from  the  care,  oversight,  and 
co-operation  of  all  the  trustees.  If,  therefore,  a  trustee  virtually 
aijandons  his  active  functions,  neglects  to  interpose  in  the  manage- 
nieirl",  and  leaves  the  whole  control  to  his  co-trustees,  he  will  be 
liable  for  losses  occasioned  by  their  wrongful  acts  or  neglects.^ 
§  1070.  4.  The  Amount  of  Care  and  Diligence  Required. — The 
])rincipie  is  well  settled  that  trustees  are  bound  to  exercise  care 
and  prudence  in  the  execution  of  their  trust,  in  the  same  degree 
that  men  of  common  prudence  ordinarily  exercise  in  their  own  af- 
fairs. A  trustee,  in  other  words,  must  use  the  same  care,  skill,  dili- 
gence, and  prudence  in  his  management  of  the  trust  anct  his  deal- 
ings with  the  trust  property  which  a  man  of  ordinary  care,  skill, 
and  prudence  would  use  in  his  own  transactions  and  with  his 
own  property  under  like  circumstances;  and  the  trustee  is  answer- 
able for  all  losses,  deficiencies,  and  injuries  which  are  occasioned  by 
his  affirmative  or  negative  violation  of  this  obligation.^  The  law 
does  not  cast  upon  the  trustee  an  extraordinary  duty,  nor  demand 
an  extraordinary  care,  nor  hold  him  liable  for  mere  error  of  judg- 
ment, much  less  does  it  make  him  an  insurer  of  the  property.  If 
he  has  exercised  the  care  and  Judgment  of  ordinary  prudent  men 
in  their  own  atfairs,  he  will  not  be  chargeable  for  his  mere  errors 
of  judgment,  nor  for  accidental  injuries  and  losses.  This  rule 
concerning  the  extent  and  limits  of  the  trustee's  duty  to  use  care, 
diligence,  and  prudence  applies  to  all  his  transactions  in  connection 
with  the  trust,  and  all  his  dealings  with  the  trust  property,  by 
which  the  interests  of  the  beneficiary  can  be  affected.  If  some  of 
the  particular  rules  concerning  the  making  and  retaining  of  invest- 
ments seem  to  be  more  stringent,  they  will  be  found,  upon  closer 
examination,  to  be  applications  of  the  same  general  doctrine,  varied 
only  by  the  nature  and  situation  of  the  subject-matter.     It  results 

Mones'  Appeal,  8  Watts  &  S.  143,  147,  42  Am.  Dee.  282.  and  note.  For  the 
relations  between  co-trustees  and  their  liabilities  in  general,  see  post,  §§  1081, 
1082. 

^Hun  V.  Cary,  82  X.  Y.  05.  37  Am.  Eep.  .540:  H.  &  E.  507;  Lawson  v. 
Copeland,  2  Brown  Ch.  Cas.  150,  Ames  Trusts  493;  Waterman  v.  Alden,  144 
111.  no,  32  N.  E.  n72,  H.  &  B.  549;  Carpenter  v.  Carpenter,  12  R.  I.  544, 
34  Am.  P>ep.  710;  King  v.  Talbot,  40  N.  Y.  70.  .50  Barb.  453.  Ames  Trusts 
472,  H.  &  B.  511;  Speight  v.  (Jaunt,  22  Ch.  Div.  727,  Ames  Trusts  518. 


013  DUTIES    OF    EXITvESS    TltUSTEKS.  §  1072 

from  the  duty  that  a  trustee  maij  be  held  aecountable  for  more 
property  than  that  which  actually  came  into  his  possession.  lie 
may  be  charged  with  rents,  profits,  interest,  income,  proceeds  of 
sales,  and  the  like,  which  he  never  in  fact  received,  but  which  he 
might  and  should  have  received  by  the  exercise  of  due  and  reason- 
able care,  diligence,  and  prudence  in  his  modes  of  dealing.  A 
trustee  who  pays  the  wrong  party  will  generally  be  liable  to  pay 
over  again  to  those  who  are  really  entitled.- 

§  1071.  5.  The  Duty  as  to  Investments. — The  general  obliga- 
tion under  consideration  finds  its  most  striking  and  important  ap- 
plication in  the  matter  of  the  investment  of  trust  funds.  It  is  the 
trustee's  duty  to  use  diligence  in  investing  the  trust  property  so 
that  it  may  produce  as  much  income  as  possible,  and  also  to  use 
care  and  prudence  in  investing  it  in  such  securities  as  will  render 
its  loss  highly  improbable,  even  if  not  virtually  impossible.  From 
these  somewhat  antagonistic  duties  arise  two  corresponding  lia- 
bilities. If  the  trustee  suft'ers  mone3's  to  lie  idle  in  his  hands, 
producing  no  income,  when  by  a  proper  investment  an  income 
might  have  been  obtained,  and  this  continues  for  an  unreasonably 
long  time,  he  will  be  liable  for  the  amount  of  income  which  he 
might  and  ought  to  have  made  by  an  investment,  and  w^ill  be 
charged  with  such  amount  by  the  court  in  the  settlement  of  his 
accounts.  On  the  other  hand,  if  he  has  made  an  investment  in 
improper  securities,  contrary  to  the  settled  rules  of  equity  on  the 
subject,  and  the  principal  has  been  wholly  or  partially  lost  through 
insolvency  or  depreciation  of  value,  or  has  failed  to  produce  in- 
come, he  will  be  held  personally  responsible  for  the  loss  or  defi- 
ciency. If,  however,  an  investment  is  made  with  the  exercise  of 
reasonable  care,  diligence,  and  business  prudence,  in  the  form,  man- 
ner, and  securities  approved  of  by  the  rules  of  equity,  a  trustee 
will  not  be  liable  for  losses  which  may  occur  through  the  destruc- 
tion or  depreciation  of  values.^  The  general  duty  involves  two 
distinct  elements,  which  will  be  separately  examined — the  necessity 
of  making  investments,  and  the  proper  kinds  of  securities  in  whicli 
the  investments  may  be  made. 

§  1072.  The  Necessity  of  Making  Investments. — It  is  the  trust- 
ee s  imperative  duty  to  render  the  trust  jiroperty  as  productive  as 
possible  consistent  with  its  security  and  with  the  demands  of  ordi- 
nary business  prudence  and  judgment.  The  rule  is  general,  there- 
fore, that  if  he  permits  the  money  to  remain  in  his  own  hands,  un- 

M?atG  V.  Hooper,   o  Do,  G.  M.  ami  C.   338. 

'Robinson  v.  Robinson,  1  De  Gex.  M.  &  G.  247,  2r)4-2r)7.  Ames  Trusts  4!),'5; 
lUown  V.  Cellatly,  L.  R.  2  Ch.  751,  Ames  Trusts  489;  Kimball  v.  Reding,  3i 
^•.  H.  3.").::,  «i4  Am.  Dec.  333. 


§  1074  EQUITY    JUiilSPRUDKNCK.  G14 

productive,  for  a  period  wIul-Ii,  under  the  circumstances,  is  unrea- 
sonable, then  he  will  be  personall^^  chargeable  with  the  lawful  in- 
terest which  might  and  should  have  been  obtained  by  the  exercise 
of  reasonable  care  and  diligence ;  and  if  the  principal  fund  should 
l)e  wholly  or  partially  lost  in  consequence  of  such  unreasonable 
delay,  he  will  be  compelled  to  make  up  the  deficiency.  Even  when 
the  instrument  creating  the  trust  prescribes  a  particular  mode  of 
investment — as,  for  example,  it  directs  that  all  the  personal  prop- 
erty should  be  converted  into  cash,  and  the  proceeds  invested  in 
the  purcha.se  of  land — the  trustee  cannot  be  justified  in  suffering 
the  cash  to  lie  idle  and  .unproductive  for  an  unreasonable  length  of 
time.^ 

§  1073.  Kinds  of  Investments — ^When  Particular  Securities  are 
Expressly  Authorized, — There  are  two  cases  to  be  considered:  1. 
When  the  instrument  creating  the  trust  expressly  authorizes  in- 
vestment in  particular  securities,  or  directs  particular  modes  of 
investment;  2.  When  the  instrument  is  wholly  silent  with  respect 
to  the  mode  of  investment,  and  the  matter  is  left  to  the  judgment 
of  the  trustee.  In  the  first  case,  when  the  instrument  itself  directs 
the  mode  and  nature  of  the  investment,  and  designates  the  securi- 
ties, the  trustee  is  bound  to  follow  these  directions  with  scrupulous 
care,  and  if  any  loss  of  trust  property  is  the  result  of  his  obedience, 
he  is  not  at  all  rcs])onsil)lc.  A  departure  from  the  directions  Avill 
entail  liability  for  the  losses  which  may  be  occasioned  thereby. 
Even  when  a  general  discretion  in  the  choice  of  securities  is  ex- 
pressly given,  it  must  be  exercised  with  reasonable  care  and  busi- 
ness prudence.^ 

§  1074.  The  Same.  When  No  Directions  are  Given. — ^Where  the 
instrument  of  trust  is  silent  as  to  the  mode  of  investment,  the  rules 
governing  the  action  of  trustees  nuiy  appear  to  be  somewhat  arbi- 
trary, but  are  in  reality  based  upon  the  clearest  principles  of  jus- 
tice and  expediency.  The  law  does  not  give  to  trustees  the  same 
freedom  of  choice  in  investments  which  may  be  exercised  by  pru- 
dent business  men  in  their  own  affairs.  A  business  man  of  even 
more  than  average  caution  may,  and  often  does,  assume  intentional 
risks  in  the  investment  of  his  own  property;  for  the  sake  of  obtain- 
ing a  greater  than  ordinary  income,  he  will  often  invest  in  such 

'Robinson  v.  Robinson,  1  De  Gex,  M.  &  G.  247,  Ames  Trusts  495;  Caven- 
(ler  V.  Cavender,  114  U.  S.  4G4,  5  Sup.  C't.  l)o5,  29  L.  Ed.  212;  and  -oe  ante, 
§  1067. 

^  Rot  hell  V.  Abraham,  L.  R.  17  Eq.  24  (even  when  clothed  with  discretion 
they  cannot  invest  in  foreiti;n  funds  or  railway  stocks)  ;  Zimmerman  v.  Fra  - 
ley,  70  Md.  561,  17  Atl.  560  (direction  to  invest  in  landed  securities  doer 
not  authorize  a  purchase  of  hmd)  :  Raer's  Appeal.  127  Pa.  St.  360.  18  Atl.  1, 
4  L.  R.  A.  609   (cannot  loan  on  personal  security  rmless  authorized). 


6ir>  DLTiLl.S    or    KXJUK.SS    THUS  TKKS.  §  10T4 

a  maimer  that  the  risk  of  ultimate  loss  is  considerable,  and  such 
speculative  use  of  his  property  would  not  be  regarded  as  illegi- 
timate nor  as  deserving  of  any  censure.  For  example,  he  may 
invest  in  the  stocks  of  companies  which  promise,  and  with  good 
foi-tune,  may  pay.  large  dividends,  but  which  also  may  utterly  fail. 
No  such  risk  is  permitted  to  the  trustee.  In  the  management  and 
investment  of  trust  property  for  the  benefit  of  the  cestui  que  trust, 
the  law,  while  requiring  some  income,  regards  the  security  of  the 
fund  invested  and  the  certainty  of  a  moderate  rcf/ular  income  as 
of  paranunint — of  absolutely  essential — importance  when  compared 
with  the  amount  of  the  income.  It  permits  the  trustee  to  assuuK^ 
no  risks  in  his  investment  other  than  those  wdiich  are  inseparable 
from  every  species  of  ju'operty.  Absolute  freedom  from  risk  is 
impossible.  The  most  stable  forms  of  property  may  lose  their  value  -. 
lands  may  depreciate;  even  nations  may  become  bankrupt.  From 
these  risks  which  inhere  in  every  kind  of  ownership  the  law  does 
not  pretend  to  save  the  beneficiary:  but  from  risks  growing  out 
of  the  uncertainty  of  speculative  investments  the  law  does  protect 
him  by  making  the  trustee  personally  responsible  for  all  trust  funds 
invested  by  him  in  such  a  mannei*.  It  is  the  settled  rule  of  ecfuity. 
in  the  absence  of  express  directions  in  the  instrument  creating  the 
trust,  or  of  statutory  permission,  that  trustees  or  executors  can 
not  invest  trust  property  upon  any  mere  personal  security,  nor  upon 
the  stocks,  bonds,  or  other  securities  of  private  business  corpora- 
tions.^ Where  no  directions  are  given  by  the  instrument  of  trust, 
tlie  well-settled  rule  of  the  English  courts  of  equity  is,  that  the 
trustee  should  invest  trust  funds,  and  can  only  escape  personal  risk 
and  liability  by  investing",  in  real  estate  securities,  or  in  the  public, 
governmental  securities  of  the  British  government.-  In  the  United 
States,  while  the  rules  are  certainly  not  so  stringent  and  invariable 
as  in  England,  and  while  different  regulations  may  prevail  to  some 
extent  in  different  states,  based  partly  upon  statutory  legislation, 
and  partly  upon  the  policy  of  encouraging  local  enterprises,  tlie 
same  fundamental  principle  of  requiring  permanent  investments  in 
real  estate  or  governmental  securities  is  generally  recognized  by 
the  courts — at  least,  all  speculative  risks  are  forbidden."  Invest- 
ments in  first  mortgages  of  improved  land  are  universally  favored, 

'Wliite  V.  Shcniian,  1G8  111.  .')Sn,  48  X.  E.  12S.  fil   Am.  St.  IJcp.   l:V2. 

-  Robin.son  v.  Robinson,  1  De  Cex,  :M.  &  G.  247,  2G3,  Ames  Trusts  40.3. 

■Kinii-  V.  Talbot,  40  X.  Y.  70.  r^O  P.arb.  4;-).'?.  Ames  Trusts  472,  II.  &  P..  oil; 
Harvard  College  v.  Amory.  0  Pick.  440,  II.  &  P..  r)2();  Lamar  v.  IVIicou,  112 
U.  S.  452,  40.'),  ,^)  Sup.  Vt  IN-p.  221.  2(i  L.  Kd.  774.  II.  &  P..  .")1.");  i'ortcr  v. 
VVoodrufT,  3(1  X.  .7.  Va[.  174.  IS.').  TI.  &  P.  2n() :  Siiiiuioii^  v.  Oliver.  7-1  Wis.  (J.i.S. 
43  X.  \V.  5<11.  II.  &  P.  r>24:  Dickinson's  Appeal.  1.V2  :\Iass.  184,  25  X.  E.  99, 
Ames  Trusts  478. 


§  lUiS  EQUITY    JLlUSi'UUDENCE.  616 

and  the  trustee  is  not  liable  for  any  subsequent  depreciation  of 
value  if  the  original  security  was  sufficient.  Indeed,  investments  of 
this  form  are  generally  required  to  be  made  by  public  officials  of 
trust  moneys  paid  into  court.  Investments  in  second  or  other  sub- 
sequent mortgages  would  be  at  the  trustee's  own  peril.  Trustees 
may  always  invest  in  the  governmental  securities  of  the  state  under 
whose  jurisdiction  they  are,  and  in  those  of  the  United  States; 
and  perhaps  an  investment  in  the  public  securities  of  other  states 
of  the  Union,  of  which  the  credit  is  firmly  established,  may  be  per- 
mitted; but  to  any  greater  extent  than  this,  investments  in  foreign 
securities  are  a  violation  of  the  trustee's  duty.  In  some  of  the 
states,  statutes  permit  investments  in  the  municipal  bonds  of  cities^ 
counties,  and  towns  of  the  state  within  whose  jurisdiction  the 
trustee  acts.  Wherever  the  principles  of  equity  jurisprudence  have 
been  fully  accepted  by  the  courts,  trustees  are  not  allowed  to  in- 
vest in  the  stocks,  bonds,  and  other  securities  of  private  corpora- 
tions— certainly  not  without  a  statutory  permission.  Such  unau- 
thorized investments  do  not  ipso  facto  render  the  trustees  per- 
sonally liable,  where  no  loss  ensues;  but  if  any  loss  results,  they 
nmst  make  it  good.  AVhere,  however,  the  trust  provides  for  a 
transfer  of  the  property  to  the  beneficiaries,  they  are  not  bound  to 
accept  such  unauthorized  securities  from  the  trustees,  even  though 
these  securities  are  not  at  all  depreciated  in  value..  It  should  In- 
carefully  observed,  in  this  connection,  that  if  the  beneficiary  is  sui 
juris  and  competent  to  bind  himself,  his  consent  to  the  irregular 
investment  would  be  a  justification  of  the  trustee's  action,  and  a 
waiver  of  all  claim,  against  him  for  resulting  loss. 

§  1075.  III.  To  Act  with  Good  Faith.  1.  The  Duty  not  to 
Deal  with  Trust  Property  for  his  Own  Advantage. — Absolute  and 
most  scrupulous  good  faith  is  the  very  essence  of  the  trustee's  ob- 
ligation. The  first  and  principal  duty  arising  from  this  fiduciary 
relation  is  to  act  in  all  matters  of  the  trust  wholly  for  the  benefit 
of  the  beneficiary.  The  trustee  is  not  permitted  to  manage  the 
affairs  of  the  trust,  or  to  deal  with  the  trust  property,  so  as  to 
uain  any  advantage,  directly  or  indirectly,  for  himself,  beyond 
his  lawful  compensation.  The  equitable  i-ules  which  govern  the 
personal  dealings  between  trustees  and  all  other  fiduciaries  and 
their  beneficiaries — their  contracts,  purchases,  gifts,  and  the  like — 
have  already  been  examined,  and  this  branch  of  their  general  obli- 
gation to  use  good  faith  needs  no  further  discussion.^  It  is  equally 
imperative  upon  the  trustee,  in  his  dealings  with  trust  property,  not 
to  use  it  in  his  own  private  business,  not  to  make  any  incidental 
profits  for  himself  in  its  management,  and  not  to  acquire  any  pe- 

^See  ante,  §§955-905. 


617  DUTIES    OF    EXlTiKSS    'rKl'STKES.  §  1076 

cuniaFy  gains  from  his  iidiiciary  i^osilion.  Tlu-  beneficiary  is  en- 
titled to  claim  all  advantages  actually  gained,  and  to  hold  the 
trustee  chargeable  for  all  losses  in  any  way  happening,  from  a  vio- 
la tioji  of  this  duty.- 

§  1076.  2.  The  Duty  not  to  Mingle  Trust  Funds  with  his  Own 
Funds. — This  second  important  duty  of  good  faith  includes  not 
only  the  intentional  use  of  trust  funds  in  the  trustee's  own  business: 
it  prohilnts  the  mixing  the  two  funds  together  in  one  amount,  llif 
depositing  trust  moneys  in  his  own  personal  account  with  his  own 
moneys  in  bank,  borrowing  trust  funds  or  going  through  the  form 
of  borrowing  for  his  own  use,  mingling  receipts  and  payments  of 
trust  moneys  and  his  own  moneys  in  his  books  of  account,  and  all 
similar  modes  of  combining  or  failing  to  distinguish  between  tlie 
tvv-o  funds.  Tlie  trustee  may  not  thus  mingle  trust  moneys  witli 
Jiis  own,  even  though  he  eventually  accounts  for  the  Avhole,  and 
nothing  is  lost.  The  rule  is  designed  to  protect  tlie  trustee  from 
temptation,  from  the  hazard  of  loss,  and  of  being  a  possible  de- 
faulter. When  a  trustee  does  mingle  trust  moneys  with  his  own, 
the  right  and  lien  of  the  beneficiary  attach  to  this  entire  combined 
fund  as  security  for  all  that  actually  belongs  to  the  trust  estate. 
A  violation  of  this  duty  subjects  the  trustee  to  the  following-  lia- 
bilities: 1.  If  the  mingling  is  followed  by  actual  loss,  accidental 
or  otherwise,  the  trustee  must  make  good  the  principal  sum  lost, 
t(!gether  with  interest,  and  perhaps  with  compound  interest ;  2. 
Where  there  has  been  no  positive  loss,  but  the  whole  funds,  princi- 
pal, profits,  and  proceeds,  are  in  the  trustee's  hands  in  their  min- 
gled condition,  the  burden  of  proof  rests  upon  him  of  showing  most 
ecnclusively  what  portion  is  his,  and  whatever  of  the  mixed  fund, 
iiu-Iudinu'  both  profits  and  principal,  he  can  not  thus  show  to  be 
hi^:  own,  even  though  it  be  the  whole  mass,  will  be  awarded  to  the 

-Dorker  v.  Somes.  2  Mylne  &  K.  G-'i.j.  The  penalty  for  n  violation  of  tliis 
duty  may  be  impo-^ed  in  any  form  necessary  to  a  complete  indeinnifieation  of 
tlie  beneficiary.  Where  the  trustee  has  used  trust  funds  in  his  own  business, 
ill  trade,  speculation,  lias  made  profits,  acquired  property,  and  the  like,  the 
lienetieiary  may.  if  he  elect,  claim  and  secure  the  advantage,  profits,  property, 
etc..  for  hi«  own  benefit.  If  the  yaiiis.  jirofits,  or  acquisitions  of  such  dealinjjs 
cannot  be  ascertained  witli  certainty,  tlie  trustee  may  be  held  liable  to  pay 
exha  interest,  and  even  ciiiipouiid  interest.  The  beneficiary  is  not.  however, 
])ermitted  to  claim  both  profits  and  interest:  he  is  required  to  elect  between 
tlie  two.  Finally,  if  the  trustee  uses  trust  funds  for  such  improper  purpo>v>>. 
and  loses  th?m  in  any  manner,  he  will  be  obliged  to  make  up  the  loss  to  an 
extent  sufilcient  to  jjive  the  beneficiary  complete  indemnity,  not  only  for  tlie 
principal,  but  also  for  the  income  or  interest  wliich  oujjht  to  have  been  made 
by  the  exercise  of  pood  faith  and  ordinary  business  prudence.  T^oljinson  \. 
Kobinson,  1  De  Gex,  M.  &  G.  247.  2.56.  2Tu .  Ames  Trusts  495;  Davis  v.  Rock 
Creek,  etc.,  Co.,  55  Cal.  359,  30  Am.  Rep.  40. 


§  1U77  EQUITY    JUHJSPKUDKXCE.  618 

beneficiary.  The  beneficiary  is  always  entitled  to  claim  and  receive 
the  acluul  profiis  when  they  can  be  ascertained;  3,  If  it  is  difficult 
to  distinguish  the  funds  so  as  to  tell  the  amount  of  profits  or  pro- 
ceeds which  is  the  beneficiary's  share,  the  court  may  not  only  re- 
quire the  trustee  to  restore  the  principal  which  he  has  appropriated, 
I)ut  in  place  of  the  profits  may  compel  him  to  pay  interest  com- 
pounded, with  rests  annual  or  semi-annual,  or  even  more  frequent, 
as  the  extent  of  his  bad  faith  may  seem  to  demand;  4.  Even  if  the 
trustee  voluntarily  accounts  for  and  restores  all  the  principal  that 
he  has  mingled  with  his  own,  the  court  wall  at  all  events  charge 
him  with  interest  thereon.^ 

§  1077.  3.  The  Duty  not  to  Accept  Any  Position  or  Enter  into 
Any  Relation,  or  do  Any  Act  Inconsistent  with  the  Interests  of  the 
Beneficiary. — This  rule  is  of  wide  application,  and  extends  to  every 
variety  of  circumstances.  It  rests  upon  the  principle  that  as  long 
as  the  confidential  relation  lasts  the  trustee  or  other  fiduciary 
owes  an  undivided  duty  to  his  beneficiary,  and  can  not  place  him- 
self in  any  other  position  which  would  subject  him  to  conflicting 
duties,  or  expose  him  to  the  temptation  of  acting  contrary  to  the 
iiest  interests  of  his  original  cestui  que  trust.  The  rule  applies 
alike  to  agents,  partners,  guardians,  executors  and  administrators, 
directors  and  managing  officers  of  cor})orations,  as  well  as  to 
technical  trustees.  The  most  important  phase  of  this  rule  is  that 
which  forbids  trustees  and  all  other  fiduciaries  from  dealinu'  in 
their  own  behalf  wath  respect  to  matters  involved  in  the  trust, 
and  this  prohibition  operates  irresi^ectively  of  the  good  faith  or 
liad  faith  of  such  dealing.  It  is  therefore  a  gross  violation  of 
ills  duty  for  any  trustee  or  director,  acting  in  his  fiduciary  capa- 
city, to  enter  into  any  contract  with  himself  connected  with  the 
trust  or  its  management;  such  a  contract  is  voidable,  and  may  be 
tlefeated  or  set  aside  at  the  suit  of  the  beneficiary.  If,  however, 
the  trustee's  act,  in  violation  of  this  rule,  is  not  done  in  bad  faith, 
and  the  beneficiary  has  received  any  benefit  therefrom,  it  cannot 
he  avoided  without  a  restoration  to  the  ti-ustee  of  what  has  thus 
been   received.^      As   another    application    of   the   general    doctrine,    a 


^  It  should  be  observed  that  the  trustee  is  liable  for  trust  money  lost  while 
mingled  with  his  own,  or  while  being  used  in  Iiis  own  business,  no  matter 
how  or  by  what  cause  the  loss  occurs.  He  may  have  used  the  utmost  care 
and  prudence  in  conducting  the  business,  and  the  loss  may  have  been  the  result 
of  unforeseen,  inevitable  accident, — he  is  still  liable,  since  he  is  engaged  in  a 
positive  violation  of  duty.  Cook  v.  i\ddison,  L.  E.  7  Eq.  460,  470;  White  v. 
Sherman,   lOS  111.  r),S9.  (104,  Gl  Am.  St.  Rep.   1:52,   i:W:   48  N.  E.   128. 

'  Duncomb  v.  N.  Y.,  etc.,  R.  R.,  84  X.  Y.  100,  198;  Twin  Lick  Oil  Co.  v. 
Marhury,  01    C.  S.  .587,  Sh.   119;   Yale  Gas  Stove  Co.  v.   Wilcox,  64  Conn.   101, 


619  X.T^-JLTriE.:-  oz  ~;:.rr-r,:g  Trii;GTi:ES,  §  1080 

trustee  is  boiiiul  to  eommuiiicate  to  his  beneficiary  any  kno\vledi:e 
or  information  lie  may  have  obtained  affecting  the  beneficiary's 
interests  so  far  as  they  are  embraced  in  or  depend  upon  the  trust 
or   confidential    relatiou.- 

§  1078.  4.  The  Duty  not  to  Sell  Trust  Property  to  Himself  nor 
to  Buy  from  Himself. — This  particular  duty  has  already  been  fully 
(iisc-ussed.  It  has  been  shown  that  where  a  trustee  deals  directly 
with  his  beneficiary  b}^  way  of  purchase  or  sale,  the  ti-ausaction  is 
presumptively  invalid;  and  that  where  a  trustee  with  authority  1o 
sell  directly  or  indirectly  purchases  the  property  for  himself  be- 
hind his  beneficiary's  back,  or  where  a  trustee  with  authority  t<> 
buy  purchases  the  property  in  such  a  manner  from  himself,  in 
each  case  the  transaction  may  be  avoided  by  the  beneficiary,  unless 
he  has  ratified  it  with  full  knowledg-e  of  all  the  facts.^ 

§  1079.  IV.  Breach  of  Trust,  and  Liability  therefor.— It  miyht 
be  supposed  that  the  term  "breaeh  of  trust"  was  confined  to  willful 
and  fraudulent  acts  which  have  a  quasi  criminal  character,  even 
if  they  have  not  been  made  actual  crimes  by  statute.  The  term  has, 
however,  a  broader  and  more  technical  meaning.  It  is  well  settled 
tliat  every  violation  by  a  trustee  of  a  duty  which  equity  lays  upon 
him,  whether  willful  and  fraudulent,  or  done  through  negligence, 
or  arising  through  mere  oversight  or  forgetfulness,  is  a  breach  of 
trust.  The  term  therefore  includes  every  omission  or  commission 
which  violates  in  any  manner  either  of  the  three  great  obligations 
already  described:  of  carrying  out  the  trust  according  to  its  terms, 
of  care  and  diligence  in  protecting  and  investing  the  trust  prop- 
erty, and  of  using  perfect  good  faith.  This  broad  conception  of 
breach  of  trust,  and  the  liabilities  created  thereby,  are  not  confined 
to  trustees  regularly  and  legally  appointed;  they  extend  to  all 
persons  who  are  acting  trustees,  or  who  intermeddle  with  trust 
property.^  In  order  that  a  trustee  may  be  personally  liable  for  a 
breach  of  trust,  he  must  be  sui  juris.^ 

§  1080.  Nature  and  Extent  of  the  Liability. — It  has  already  been 
shown  that  a  beneficiary  may  always  claim  and  reach  the  trust 
luoperty  tlirough  all  its  changes  of  form  while  in  the  hand  of  the 


29  Atl.  303,  42  Am.  St.  Rep.  159,  25  L.  R.  A.  90;  Rutland,  etc.,  Co.  v.  Bates,  C8 
\t.  579,  54  Am.  St.  Rep.  904,  35  Atl.  480. 

=  See    §§902-904,   §  10G3. 

'Pittsburjv  :\Iin.  Co.  v.  Spooiier.  74  \Yis.  307.  17  Am.  St.  Rep.  149,  42  X.  W. 
259;  Davoue  v.  Fanninjr,  2  .Tolnis.  CIi.  252.  2  Scott.  090;  see  ante,  §§  958-905, 
]049-10.")2. 

'Oceanic  Steam  Nav.  Co.  v.  Sutliorbeny,  L.  R.  10  Cli.  Div.  230  (breach  of 
trust  though  beneficial  to  estate  was  not  allowed). 

MVainford  v.  llcyl,  L.  R.  20  Eq.  321. 


§1081  EC^LITY    JLliiSi'Ul  DKXCE.  ('("^O 

trustee,  and  that  lie  may  also  follow  it  into  the  possession  and  ap- 
parent ownership  of  third  persons,  until  it  has  been  transferred  to 
a  bona  tide  purchaser  for  valuable  consideration  and  without  no- 
tice ;  and  that  a  court  of  equity  will  furnish  him  with  all  the  in- 
cidental remedies  necessary  to  enforce  his  claim  and  to  render  it 
effective.^  In  addition  to  this  claim  of  the  beneficiary  upon  the 
trust  estate  as  long  as  it  exists,  the  trustee  incurs  a  personal  lia- 
bility for  a  breach  of  trust  by  way  of  compensation  or  indemnifi- 
cation, which  the  beneficiary  may  enforce  at  his  election,  and  which 
becomes  his  only  remedy  whenever  the  trust  property  has  been 
lost  or  put  beyond  his  reach  by  the  trustee's  wrongful  act.  The 
trustee's  personal  liability  to  make  compensation  for  the  loss  occa- 
sioned by  a  breach  of  trust  is  a  simple  contract  equitable  debt.- 
It  may  be  enforced  by  a  suit  in  ecjuity  against  the  trustee  himself, 
or  against  his  estate  after  his  death,  and  the  statute  of  limitations 
v;ill  not  be  admitted  as  a  defense  unless  the  statutory  language  is 
express  and  mandatory  upon  tlie  court.''  The  amount  of  the  lia- 
bility is  always  sutficient  for  the  complete  indemnification  and  com- 
pensation of  the  beneficiary."* 

§  1081.  Liability  among  Co-trustees. — I  do  not  now  speak  of 
the  liability  for  the  acts  or  defaults  of  a  co-trustee,  but  assume 
that  co-trustees  have  concurred  in  a  breach  of  trust.  The  rule  is 
firmly  settled,  that  where  a  breach  of  trust  has  affected  two  or  more 
or  all  of  co-trustees  with  a  common  liability,  they  are  liable  jointly 
and  severally;  each  is  liable  for  the  whole  loss  sustained  or  the 
whole  amount  due,  and  a  decree  obtained  against  them  jointly 
may  be  enforced  against  any  one  of  them.^  Wherever  two  or  more 
co-trustees  are  thus  jointly  and  severally  liable  in  the  same  amount 
for  a  breach  of  trust  which  is  not  purely  tortious  in  its  nature, — 
as  where  it  consists  in  a  failure  to  carry  out  the  directions  of  the 
tru.st,  or  a  failure  to  make  proper  investments,  or  other  like  acts 
of  omission  or  commission  which  are  not  fraudulent,  or  do  not  in- 
volve a  Avillful  breach  of  good  faith, — a  right  of  contribution  ex- 
ists among  themselves;  and  if  one  of  them  has  paid  the  amount 
of  liability,  he  may  enforce  a  contribution  from  the  others,  in  a 
suit  brought  for  that  purpose.     In  such  cases,  upon  the  general 

'  See  ante,  S§  1048-1058. 

==  Holland  v.  Holland,  L.  R.  4  Ch.  449  Ames  Trusts  23G. 

•■'Diickett  V.  Kank,  8C  Md.  400,  38  Atl.  893,  G3  Am.  St.  Rep.  513,  39  L.  R.  A.  84. 
See  ante,  §  419. 

''Robinson  v.  Robinson.  1  Dc  Gex,  M.  &  G.  247,  Ames  Trusts  495;  McKim  v. 
Hibbard,  142  jNTass.  422,  8  N.  E.  152;  McCloskey  v.  Gleason,  56  Vt.  264,  48  Am. 
Rep.  770  (simple  interest;  mingling  of  funds)  ;  In  re  Hodges'  Estate,  66  Vt. 
70,  44  Am.  St.  Rep.  820,  28  Atl.  663    (compound  interest). 

•Turquand  v.  Marshall,  L.  R.  6  Eq.   112;    Heath  v.  Waters,  40  Mich.  457. 


621  LIABILITIKS    OF    KXl'l!  KSS    TKUSTKKS.  Ji   1082 

priiieij)les  of  equity  i)Ieadinii-,  all  the  tmstees  who  are  liable  should 
be  joined  as  defendants  in  a  suit  brought  by  the  beneficiary;  the 
contribution,  however,  cannot  be  enforced  in  that  suit.-  Where, 
on  the  other  iiand,  the  breach  of  trust  concurred  in  by  several 
co-trustees  is  tortious  in  its  nature,  as  wdiere  it  is  actually  fraudu- 
lent, or  consists  in  an  intentional  misappropriation  of  trust  funds 
to  the  trustee's  own  use,  or  in  any  other  willful  violation  of  good 
faith,  or  perhaps  in  gross  and  culpable  negligence  occasioning  a 
loss,  there  is  no  right  of  contribution  among  the  trustees;  the  bene- 
ficiary may,  at  his  election,  sue  one  or  more  of  the  wrong-doers 
without  joining  all  w'ho  are  liable.^ 

§  1082.  Liability  for  Co-trustees. — The  general  theory  of  eciuity 
is,  that  each  one  of  several  trustees  has  the  same  rights  as  the 
others  with  respect  to  the  possession,  control,  and  management  of 
the  trust  property.  It  follows  as  a  necessary  consequence  of  this 
conception,  and  the  general  rule  is  well  settled,  that  each  trustee 
is  generally  liable  onlj'-  for  his  ow^n  conduct  in  dealing  wath  the 
affairs  of  the  trust;  he  is  not  responsible  for  the  acts  or  defaults — 
the  intentional  or  negligent  breaches  of  trust — of  a  co-trustee,  in 
which  he  has  not  joined  or  concurred,  or  to  which  he  has  not  con- 
sented, or  which  he  has  not  aided  or  made  possible  by  his  own  neg- 
ligence.^ Where  a  trustee  who  is  not  really  an  acting  one  joins 
merely  for  the  sake  of  conformity  with  his  co-trustees  w^ho  are 
acting,  in  receipts  given  for  money,  he  is  not  liable  with  respect  to 
such  money  to  the  beneficiary.  The  foregoing  statement  of  the 
general  doctrine  shows  that  a  trustee  is  not  absolutely  and  under 
all  circumstances  free  from  liability  with  respect  to  his  co-trustees. 
A  trustee  is  responsible  for  the  willful  or  negligent  wrongful  acts 
or  omissions — breaches  of  trust — of  his  co-trustee  to  wdiieh  he  con- 
!;ented,  or  which  by  his  ow^n  negligence  he  made  it  possible  for 
his  co-trustee  to  commit.  Every  trustee  is,  of  course,  liable  for 
the  defaults  of  his  co-trustee  in  which  he  has  joined  or  concurred, 
but  his  liability  then  arises  from  his  oivn  actual  breaches  of  trust, 
and  not  from  those  of  his  fellow-trustee.  "With  respect  to  the 
liability  of  a  trustee  for  the  acts  of  a  co-trustee,  there  are  three 
jnodes  in  wdiich  he  may  become  liable  according  to  the  ordinary 
rules  of  the  court :  1.  Where  one  trustee  receives  trust  money  and 
hands  it  over  to  a  co-trustee  without  securing  its  due  application: 
2.  AVhere  he  permits  a  co-trustee  to  receive  trust  money  Avithout 
jiiaking  due  inquiry  as  to  his  dealing  with  it;  3.  Where  he  becomes 

nJngard  v.  Bramley,  1  Ves.  &  B.  114.  117. 
^Att'y  Gen.  v.  Wilson.  Craig  &  P.  1,  28. 

M^rioe  v.  Stokes,  11  Ves.  819.  2  Load.  Cas.  Eq.  4tli  Am.  ed..  17:1S.  174S-lTiK), 
1791-1805;  Estate  of  7es!iiire,  1.34  Pa.  St.  (17,  19  Atl.  .302,  1!)  Am.  St.  Rep.  G7G. 


§  1084  EQUITY    JURISPRUDENCE.  ij22 

aware  of  a  breach  of  trust,  either  committed  or  meditated,  and 
abstains  from  taking  the  necessary  steps  to  obtain  restitution." 
It  thus  appears  that  the  consent  to  a  co-trustee's  breach  of  trust 
need  not  be  express.  It  may  be  implied  from  the  trustee's  conduct 
in  refraining  from  taking  reasonable  and  necessary  steps  to  prevent 
or  repair  the  loss.^  In  applying  this  general  rule,  some  of  the 
American  decisions  do  not  hold  trustees  to  quite  so  rigid  a  respon- 
sibility for  mere  omissions  to  interfere  with  the  wrongful  acts  of 
their  fellows  as  is  done  by  the  English  cases;  but  there  does  not 
appear  to  be  any  substantial  difference  in  the  modes  of  formulating 
the  doctrine  by  the  courts  of  the  two  countries. 

§  1083.  The  Beneficiary  Acquiescing  or  Concurring. — A  benefi- 
ciary wiio,  subseciuently  to  a  breach  of  trust,  acciuiesces  in  it,  can 
not  maintain  a  suit  for  relief  against  those  who  would  otherwise 
have  been  liable.  The  acquiescence,  in  order  to  produce  this  effect, 
must  take  place  with  full  information  by  the  beneficiary  of  all  the 
facts,  and  with  full  knowledge  of  his  legal  rights  arising  from 
those  facts ;  in  short,  it  must  have  all  the  requisites  of  an  acquies- 
cence heretofore  described,  to  defeat  the  liability  of  a  defaulting 
fiduciar}^^  Although,  in  general,  lapse  of  time  is  not  a  defense  to 
the  beneficiary's  right  of  action,  yet  a  great  delay  after  knowledge 
of  the  breach  of  trust  may  be  a  bar.  If  a  cestui  que  trust  is  a  party 
to  or  concurs  in,  or  even  assents  to,  a  breach  of  trust  by  the  trustee, 
he  debars  himself  therel)y  of  all  claim  for  relief.- 

§1084.  Third.  The  Trustee's  Compensation  and  Allowances. 
— It  is  the  Avell-settled  doctrine  of  the  English  equity  that  the 
trustee's  office  is,  as  a  rule  of  law,  Avholly  gratuitous.  In  the  ab- 
sence of  a  provision  for  compensation  contained  in  the  instrument 
creating  the  trust,  he  is  not  entitled  to  make  any  charge  for  his 
services,  trouble,  or  loss  of  time,  even  though  great  advantage  had 
resulted  therefrom  to  the  beneficiaries.^  Where  the  trustee  is  also 
an  attorney,  and  acts  as  such  on  behalf  of  the  estate,  he  is  even 
not  entitled  to  full  costs  or  attorney's  fees  as  against  the  cestui  que 
ti'ust,  but  can  only  be  allowed  for  costs  actually  out  of  pocket, 
or  disbursements.-  The  testator,  or  other  person  who  creates  a 
trust,  may  expressly  provide  for  a  salary  or  compensation  of  any 

^  tSee  ante,  S  lOGO,  as  to  negligent  surrender  of  entire  control  to  a  eo-trustee: 
Ringgold  V.  Kinggold.  1  Tlar.  &  (r.  11,  IS  Am.  Dec.  250;  Bruen  v.  Gillet,  115 
N.  vt  10.  21   S.  E.  r.7fi,   12  Am.  St.  Rep.  7fi4.  4  L.  R.  A.  .529. 

1  See  ante,  §§004.  905;  Clark  v.  Clark,  8  Paige  152.  35  Am.  Dee.  G7G; 
White  V.   Sherman,   168  111.  589,  fiOG.   Gl    Am.  St.  Rep.   1.32,   140,  48  X.  E.   128. 

M'hipps  V.  Lovegrove.  L.  R.  10  Eq.  SO. 

'  Barrett   v.   Hartley.  L.  R.  2  Eq.   7S9. 

-Cradock  v.  Piper,  1  Macn.  &  G.  664;  Kv.  Nat.  Bk.  v.  Stone,  93  Ky.  623, 
20  S.  \V.  1040. 


623  TRUSTEES  CO-UPEXSATIOX    AND   ALLOWANCES.  §    1085 

form  to  be  i)aid  U)  the  trustee,  and  such  provision  will  be  binding, 
and  will  be  followed  by  the  courts."  This  strin»ient,  and  certainly- 
unwise,  rule  of  the  English  ecjuity  has  not  been  followed  in  the 
United  States.  With  very  few,  if  any,  exceptions  among  the  va- 
rious states,  trustees,  as  well  as  executors  and  administrators,  are 
allowed  compensation  for  their  services;  in  most  of  the  states  the 
right  to  the  compensation  and  the  amount  of  it  have  been  fixed  by 
statutory  legislation.  Where  the  instrument  creating-  the  trust 
provides  that  the  trustee  shall  have  a  compensation  for  his  services, 
such  provision  will  be  enforced.  If  the  instrument  declares  the  rate 
of  compensation,  it  must  be  followed;  if  it  establishes  no  rate,  the 
trustee  is  entitled  to  a  reasonable  amount,  which  will  be  ascer- 
tained by  means  of  a  judicial  investigation,  as  to  the  value  of  his 
services.*  Where  no  provision  is  made  by  the  creator  of  the  trast, 
the  trustee  is  allowed  the  amount  fixed  by  statute,  or  in  the  ab- 
sence of  statute,  the  amount  determined  by  the  court  to  be  reason- 
able and  just."' 

§1085.  Allowances  for  Expenses  and  Outlays. — In  addition  to 
his  compensation  in  this  country,  and  without  an}'  compensation  in 
England,  the  trustee  is  entitled  to  be  allowed,  as  against  the  estate 
and  the  beneficiary,  for  all  his  proper  expenses  out  of  pocket,  which 
include  all  payments  expressly  authorized  by  the  instrument  of 
trust,  all  reasonable  expenses  in  carrying  out  the  directions  of  the 
trust,  and,  in  the  absence  of  any  such  directions,  all  expenses  rea- 
sonably necessary  for  the  security,  protection,  and  preservation 
of  the  trust  property,  or  for  the  prevention  of  a  failure  of  the  trust. 
He  is  also  entitled  to  be  indemnified  in  respect  of  all  personal  lia- 
bilities incurred  by  himself  for  any  of  these  purposes.^  Where  a 
trastee  properly  advances  money  for  any  of  the  above-mentioned 
objects,  so  that  he  is  entitled  to  reimbursement,  he  also  has  a  lien 
as  security  for  the  claim,  either  upon  the  corpus  of  the  trust  prop- 
erty, or  upon  the  income,  as  the  case  ma}'  be ;  but  for  moneys  im- 
properly paid  there  is  no  lien.  Although  in  general  a  creditor  who 
advances  money  to  a  trustee  obtains  only  the  personal  liability  of 

•'Bowker  v.    Pierce,    1.30   Mass.   202. 

Mn  the  matter  of  Scliell,  53  X.  Y.  2()3,  26.5.  H.  &  B.  543.  The  English  rule 
is  followed  in  a  few  states:  Cook  v.  Gilmore,  133  111.  130,  24  N.  E.  524, 
H.  &  J5.  542. 

=  Perkins'  Appeal,  108  Pa.  St.  314,  56  Am.  Rep.  20S,  Sh.  206  (trustee 
allowed  extra  omnpoiisalioii  for  services  as  attorney);  In  re  Hodjijes's  Estate, 
66  Vt.  70,  44  Am.  St.  Rep.  820.  28  All.  663  (trustee  who  commits  breach  of 
trust  not  entitled  to  commissions)  :  IMuscogee  Lumber  Co.  v.  Hyer.  18  Fla. 
«9S.  43  Am.   Rep.   332    (allowing  a   reasonable  compensation). 

MVorrall  v.  Harford,  8  Ves.  4,  8,  Ames  Trusts  415;  New  v.  Nicoll,  73  N.  Y. 
127.  20  Am.  Rep.  111. 


§  1087  EQUITY    JURISPRUDENCE.  624 

the  trustee,  and  has  no  demand  enforceable  against  the  estate,  yet 
if  the  expenditure  is  authorized,  and  the  loan  is  necessary,  the 
trustee  may,  at  the  time  of  procuring  the  advance,  whether  money 
or  services,  by  an  express  agreement  with  the  creditor,  make  the 
demand  a  charge  upon  the  estate,  and  thus  create  a  lien  in  favor 
of  the  creditor;  or  the  trustee  may  so  deal  with  the  estate  in  the 
first  instance  as  to  acquire  a  lien  in  his  own  favor,  and  may  then  as- 
sign such  lien  to  the  creditor.-  It  is  hardly  necessary  to  add  that 
the  foregoing  rules  concerning  compensation,  allowances,  and  liens 
do  not  apply  to  trustees  in  invitum.  Since  their  paramount  duty 
is  to  convey  the  property  at  once  to  the  beneficial  owner,  they  are 
clearly  not  entitled  to  be  reimbursed  for  expenditures  made,  much 
less  to  be  allowed  compensation,  while  they  are  violating  this  ob- 
ligation. 

§  1086.  Fourth.  .  Removal  and  Appointment  of  Trustees. — The 
power  of  courts  of  equity  over  the  removal  and  appointment  of 
trustees,  independently  of  any  statutory  authority,  or  any  direc- 
tions in  the  instrument  of  trust,  is  well  established.  This  power  is 
confined  to  cases  of  actual  exjH'ess  trusts.  It  cannot,  in  the  nature 
of  things,  extend  to  implied  trustees,  or  trustees  in  invitum;  nor 
does  it  apply  to  those  persons  who  stand  in  fiduciary  relations,  and 
are  for  some  purposes  treated  as  trustees.  A  court  of  equity  may 
remove  a  trustee  on  his  own  application  when  he  wishes  to  be  dis- 
charged ;  and  it  may  and  will  remove  a  trustee  who  has  permanent- 
ly changed  his  residence  to  another  country,  or  has  absconded,  or 
has  been  guilty  of  some  breach  of  trust,  or  violation  of  duty,  or  has 
become  insolvent,  or  is  incapable,  through  age  or  other  infirmity, 
of  performing  the  trust  duties.  The  exercise  of  this  function  by 
a  court  of  equity  belongs  to  what  is  called  its  sound  judicial  discre- 
tion,  and  is  not  controlled  by  positive  rules,  except  that  the  discre- 
tion must  not  be  a])used.^ 

§1087.  Appointment  of  New  Trustees. — The  principle  has  al- 
ready been  stated  that  an  express  trust  validly  created  shall  not 
fail  for  want  of  a  trustee.     Courts  of  equity,  therefore,  indepen- 

'Xew  V.  Nicoll,  73  X.  Y.  127.  l.'?0.  ].31.  20  Am.  Rpp.  111.  As  to  trustee's 
power  to  bind  the  estate,  see  Woriall  v.  Harford,  8  Ves.  4,  8,  Ames  Trusts  415; 
Strickland  v.  ISymons,  26  Ch.  Div.  245,  Ames  Trusts  418;  In  re  .Tohnson,  15 
Ch.  Div.  548,  Ames  Trusts  426;  Fairland  v.  Percy,  L.  R.  .3  P.  &  D.  217,  Ames 
Trusts  42.3;  Norton  v.  Phelps,  54  Miss.  467.  Ames  Trusts  421. 

'Sheppard  v.  McEvers,  4  Johns.  Ch.  136,  8  Am.  Dec.  561;  In  re  Barker's 
Trusts,  1  Ch.  Div.  43,  Ames  Trusts  22.3,  H.  &  B.  54  (insolvencj)  :  MePhereon 
V.  Cox.  96  U.  S.  404,  24  L.  ed.  746  (inability  to  a^ree  with  beneficinry  not  a 
disqualification  in  this  ease)  ;  May  v.  May,  167  U.  S.  310.  17  Sup.  Ct.  Pep. 
S24.  42  L.  ed.  170  (disagreement  among  the  trustees  endangering  safety  of  the 
j)r(iperty  or  its  proper  uianagemcnt). 


G25  cuuroHATiox  diuectors.  §  10S8 

dently  of  statute,  possess  the  inherent  power  and  jurisdiction  to 
appoint  new  trustees  whenever  such  action  is  necessary  to  protect 
the  rights  of  the  beneficiaries.  In  the  absence  of  any  other  meth- 
od prescribed  by  the  instrument  creating  the  trust,  a  court  of 
equity  Avill  appoint  trustees  when  none  at  all  have  been  named 
by  the  creator  of  the  trust;  and  will  appoint  new  trustees  when 
those  originally  named  refuse  to  accept,  or  when  a  vacancy  occurs 
by  their  death,  resignation,  permanent  residence  in  a  foreign  coun- 
try, or  removal  from  office  as  heretofore  described.^  The  power 
of  appointment  will  be  exercised  on  behalf  of  a  beneficiary  who  has 
a  real  interest,  even  though  it  be  contingent.  Its  exercise,  as  in 
'cl>e  case  of  removal,  is  a  matter  of  sound  judicial  discretion.  In 
filling  vacancies,  therefore,  the  court  is  not  necessarily  confined  to 
the  original  number  of  trustees.  In  the  appointment  as  w^ell  as  in 
the  removal  of  trustees  the  court  keeps  in  view  and  endeavors  to 
accomplish  three  main  objects:  the  wishes  of  the  creator  of  the 
trust,  the  interests  of  all  the  beneficiaries,  not  some  of  them,  and 
the  effectual  performance  of  the  trust.  Even  when  the  power 
of  appointment  is  conferred  by  the  instrument  of  trust  upon  an 
individual,  a  court  of  equity  may  control  its  exercise  so  as  to  pre- 
vent an  abuse  of  discretion.- 


SECTION   VII. 
CORPORATION   DIRECTORS  AXD  OTHER  QUASI   TRUSTEES. 

ANALYSIS. 

§  1088.  (Juasi   trustee ;    fiduciary    persons. 

S  1089.  Corporation    directors    and    officers. 

S  10'.)0.  Trust    relations    in    stock    corporations. 

S  1091.  Liability    of    directors    for    a    violation    of    their    trust. 

S  1092.  First    class:    Directors    guilty    of    fraudulent    misrepresentations,    etc. 

S  1093.  Second  class:  Ultra  vires  proceedings  of  directors. 

S  1094.  Tliird    chi'^s:    Wrongful    dealing    with    corporate    property. 

S  1095.  Fourth  class:  The  same;  the  corporation  refuses  to  sue. 

§  1096.  Special    classes. 

§  1097.  Ouardians. 

§  1088.  Quasi  Trustees — Fiduciary  Persons. — The  conception 
of  a  trust  runs  throuuh  a  large  part  of  equity  jurisprudence,  and 

'Dodkin  V.  Brunt.  L.  IJ.  ti  Eq.  .i80.  Ames  Trusts  220:  Ro  Hallett's  Trusts.  IS 
Weekly  Ec]).  410.  Ames  Trusts  221  (husband  appointed  co-trustee  for  uiarried 
woman,  but  not  sole  trustee)  ;  Wilding  v.  Balder,  21  Beav.  222,  Ames  Trusts  221 
(person  who  is  not  a  near  relative  is  to  he  preferred);  Ex  parte  Conybeare's 
¥!ettlement,  1  Weekly  Rep.  4.58.  Ames  Trusts  222  (beneficiary  may  be  co-trustee > , 

'Bailey   v.   Bailey,   2   Del.   Ch.   95. 
40 


§  1089  EQUITY  JURISPRUDEXCB.  626 

is  the  source  of  many  doctrines  applicable  to  conditions  which 
are  not  strict!}^  trusts.  Wherever  there  is  a  fiduciary  relation, 
although  the  fiduciar}^  may  not  hold  the  legal  title  to  property 
in  which  the  beneficiary  has  only  an  equitable  estate,  the  dealings 
of  the  parties  Avith  each  other  and  with  the  subject-matter  of  the 
relation  are  governed  by  the  same  rules  which  determine  the 
duties  of  actual  trustees  towards  their  cestuis  que  trustent,  and 
the  beneficiaries  are,  in  general,  entitled  to  the  same  remedies 
v.'hich  are  given  to  cestuis  que  trustent  against  those  who  are 
truly  express  trustees.^  It  may  be  said,  therefore,  that  the 
equitable  obligations  resting  upon  and  the  equitable  remedies 
given  against  guardians,  committees  of  persons  non  compotes 
mentis,  corporation  directors,  partners,  agents,  as  well  as  execu- 
tors and  administrators,  are  analogous  to  those  resting  upon  and 
given  against  actual  trustees;  they  result  directly  from  the  theory 
of  trusts,  and  are  not  mere  applications  of  the  doctrine  concerning 
accounting.  I  purpose,  in  the  present  section,  to  describe  the  opera- 
tion of  the  theory  of  trusts  upon  certain  species  of  fiduciary  per- 
sons, eipecially  corporation  directors  and  officers;  some  other 
species  will  be   considered   in  subserpient   chapters." 

§  1089.  Corporation  Directors  and  Officers. — The  directors  and 
supreme  managing  officers  of  corporations  are  constantly  spoken 
of  as  trustees.  They  are  not,  however,  true  trustees  with  the 
corporation  or  the  stockholders  as  their  true  cestuis  que  trustent, 
since  they  hold  neither  the  legal  title  to  the  corporate  property 
nor  that  to  the  stock.  In  fact,  directors  are  clothed  at  the  same 
time  with  a  doulile  character — that  of  cpiasi  trustees  and  that  of 
agents.'^  It  is  of  the  utmost  importance  to  discriminate  exactly 
between  these  two  characters,  and  to  determine  accurately  for 
whom,  over  what  subject-matter,  and  to  Avhat  extent  they  are  thus 
trustees;  fin*  ui)on  this  trust  relation  primarily  •depend  the  equita- 
ble remedies  which  may  be  obtained  against  them  by  the  cor- 
poration or  by  the  stockholders.  With  the  character  of  agents 
belonging  to  directors,  the  present  discussion  has  little  or  notliing 
to  do.  Frxun  their  function  of  agency  are  derived  their  powers 
to  act  for  the  corporation  as  a  legal  entity;  it  measures  the  extent 
of  these  powers  in  the  management  of  both  the  external  and  in- 
ternal affairs;  it  fixes  the  rights  and  obligations  of  the  corporation 
in  dealings  with  stockholders  and  with  third  persons.     The  rights, 

^See   ante,   §§   95r)-965,    1044-1058,    1075-1078. 
^Namely,    executors    and    adnnnistrators,    partners,    and    acfents. 
'Ex  parte  Chippendale,   4  De  Ocx  M.  &  G.   19,  52;   Hun  v.   Gary,  82   N.   Y. 
65,  70,  37  Am.  Rep.  446,  H.  &  B.  507. 


637  coi;p()i;atu)N   DiinaTORS.  §  1000 

i^lutie.s,  liabilities,  and  remedies  whieli  result  from  the  directors' 
•igeuey  are  therefore  chiefly  lej>al;  the  equitable  rights,  duties,  and 
remedies  are  mainly  referable  to  the  trust  element  of  the  directors' 
functions. 

§  1090.  Trust  Relations  in  Stock  Corporations. — The  trust 
character  of  directors  is  involved  in  the  very  organization  of  a 
corporation,  and  is  necessarily  twofold — towards  the  corpora- 
tion, and  towards  the  stockholders.  The  doctrines  are  fundamental 
and  familiar  that  the  corporation  itself  is  a  legal  personality,  and 
holds  the  full  title,  legal  and  equitable,  to  all  corporate  property. 
Stockholders,  individually  and  separately,  hold  the  full  title,  legal 
and  equitable,  to  their  respective  shares  of  stock.  A  stockholder 
does  not  by  virtue  of  his  stock  acquire  any  estate,  legal  or  e(iui ta- 
ble, in  the  corporate  property;  he  obtains  only  a  right  to  partici- 
pate in  the  lawful  dividends  while  the  corporation  is  in  being, 
and  to  his  proportionate  share  of  the  net  assets  upon  its  dissolu- 
tion and  final  settlement.  Shares  of  stock,  however,  are  regarded 
by  the  courts  of  law  and  of  eciuity  as  a  species  of  property,  r.r, 
vendible  in  the  market,  as  having  a  pecuniary  value,  and  as  cloth- 
ing their  owner  with  proprietary  rights  which  will  be  protected 
and  enforced.^  From  this  analysis  it  is  obvious  that,  so  far  as  the 
trust  embraces  or  is  concerned  with  the  corporate  propnii/,  tlie 
directors  and  managing  officers  occupy  the  position  of  quasi 
trustees  towards  the  corporation  only;  there  is  no  relation  of  bene- 
ficiary and  trustee,  having  the  corporate  property  for  its  subject- 
mjitter,  between  the  stockliolders  and  the  directors.  The  directors 
are  also  agents  for  the  corporation,  but  that  fact  does  not  prevent 
them  from  l)eing  in  a  partial  sense  trustees  for  the  corporation. 
The  important  conclusion  I  repeat,  that  this  phase  of  their  ti-ust 
is  concerned  with  and  confined  to  the  corporate  property:  from  it 
arise  their  fiduciary  duties  towards  the  corporation  in  dealing  with 
feiich  property,  and  the  equitable  remedies  of  the  corporation  for 
a  violation  of  those  duties.  On  the  other  hand,  the  directors  and 
managing  officers  occupy  the  position  of  quasi  trustees  towai-ds 
the  stockholders  alone,  and  not  at  all  towards  llu>  corporation, 
with  respect  to  their  shares  of  stock.  Since  ilic  stockholdci's 
own  these  shares,  and  since  the  value  thereof  and  all  their  rights 
connected  therewith  are  afiPected  by  the  conduct  of  the  directors,  a 
trust  relation  plainly  exists  between  the  stockholders  and  the 
directors,  which  is  concerned  with  and  confined  to  the  shares  of 
stock  held  by  the  stockholders:  from  it  arise  the  fiduciary  duties 


^Thus,   for  example,   trover   eoxild    be   maintained   for   a   wrongful   conversion 
of   shares. 


§  1091  EQUITY    JURISPKUDE^'CE,  628 

of  the  directors  towards  the  stockholders  in  dealings  Avhich  may 
affect  the  stock  and  rights  of  the  stockholders  therein,  and  their 
equitable  remedies  for  a  violation  of  those  duties.  To  sum  up. 
directors  and  managing  officers,  in  addition  to  their  functions, 
as  mere  agents,  occupy  a  double  position  of  partial  trust ;  they  are 
(luasi  or  sub  raodo  trustees  for  the  corporation  with  respect  to 
the  corporate  property,  and  they  are  quasi  or  sub  modo  trustees 
for  the  stockholders  with  respect  to  their  shares  of  the  stock. " 

§  1091.  Liability  of  Directors  for  a  Violation  of  their  Tnist.— 
Whenever  directors  or  managing  officers,  acting  within  the  scope 
of  their  general  powers  as  agents,  violate  the  rights  of  a  stock- 
holder, their  act  is  binding  upon  the  corportion;  it  is,  in  legal 
effect,  the  act  of  the  corporation,  and  the  stockholder  has  a  rem- 
edy, legal  or  equitable,  as  the  case  may  be,  by  suit  against  the  cor- 
poration.^ With  remedies  of  this  kind  against  the  corporation 
we  are  not  at  present  concerned,  since  they  result  from  the  di- 
rectors' powers  as  agents,  and  not  at  all  from  their  functions  as 
quasi  trustees.  In  regard  to  the  various  remedies  against  the  di- 
rectors or  managing  oiffcers  for  their  breaches  of  trust,  the  con- 
clusions reached  in  the  preceding  paragraph  furnish  a  most  clear 
and  certain  criterion.  Whenever  the  acts  of  the  directors  do  not 
consist  of  any  wrongful  misuse  of  the  corjiorate  property,  or  wrong- 
•ful  exercise  of  the  corporate  franchise,  but  are  of  such  a 
nature  that  they  directly  and  primarily  affect  the  interest  of 
the  stockholders  in  their  shares  of  stock,  by  diminishing  its 
value,  or  otherwise  impairing  their  proprietary  rights  in  it, 
then  the  stockholders  are  directly  injured  and  are  primarily  in- 
terested ;  as  the  cestuis  que  trustent  whose  rights  have  been  vio- 
lated, they  must  institute  and  maintain  any  equitable  suits  for 
relief  against  their  defaulting  trustees;  the  remedy  is  for  their 
benefit  and  belongs  to  them  alone.  On  the  other  hand,  wher- 
ever the  breach  of  trust  consists  in  a  wrongful  dealing 
of  any  kind  or  in  any  manner  with  the  corporate  propertv  or  with 

-The  c'onehisions  of  the  text  are  fully  sustained  hy  the  cases,  althovigh  no 
single  decision,-  so  far  as  I  am  aware,  attempts  to  give  the  complete  analysis 
or  to  formulate  the  entire  results.  Ex  parte  Chippendale  4  De  Gex,  M.  &  G. 
19,   .')2;     Jackson   v.   Ludeling.   21    \Ya]l.    OIG. 

'  As,  for  example,  wlien  tlie  directors  or  officers  improperly  refuse  to  recog- 
nize a  transfer  of  stock,  and  to  is^ue  a  new  certificate  to  the  assignee,  or 
when  tliey  otherwise  refuse  to  admit  the  rights  of  one  who  is  really  a  stock- 
holder, and  to  issue  to  him  the  stock  to  -which  he  is  justly  entitled,  their  con- 
duct, tliough  wrongful  in  the  particular  instance,  falls  within  the  scope  of 
tlu'ir  proper  ftinctions.  The  stockholder  may  therefore  maintain  an  action  at 
law  against  tlie  coijjoration  for  damages,  or  he  may  sometimes  resort  to  a 
suit  in  equity  for  the  purpose  of  compelling  it  to  issue  the  stock  and  to 
register  it  upon  the  books  of  the  company;  see  §§  1411,  1412. 


G29  CORPOUATIOX    UlUECTOKS.  §  1093 

the  corporate  franchises,  the  corporation  itself  is  directly  ii.jured 
and  is  primarily  interested;  as  the  cestui  (|ue  trust  whose  rig'hts 
have  been  violated,  it  nuist  institute  and  niainta'.n  any  etpiitable 
suit  for  relief  ay-ainst  its  defaulting'  trustees;  the  remedy  obtained, 
whether  pecuniary-  or  otherwise,  is  for  its  benefit,  and  beloniis  to  it 
alone.  Under  certain  special  circumstances  in  cases  of  this  latter 
kind,  where  the  suit  should  be  brought  b}-  the  corporation  as  j)Iain- 
titf,  but  it  becomes  impossible  to  institute  such  a  proceeding,  in 
order  to  prevent  a  complete  failure  of  justice  the  stockholders  are 
permitted  to  set  the  machinery  of  the  court  in  motion  by  commenc- 
ing the  action  in  their  own  names;  but  otherwise  the  suit  is  treated 
in  every  respect  as  one  brought  by  and  for  the  corporation.  In 
applying  these  general  propositions,  it  will  be  found  that  there  are 
several  distinct  classes  of  cases  appropriate  for  different  conditions 
of  fact,  and  governed  by  different  rules.  These  various  classes 
I  shall  now  proceed  to  describe. 

§  1092.  First  Class.  Directors  Guilty  of  Fraudulent  Misrepre- 
sentations or  Concealments. — -Where  directors  or  managing  officers 
issue  prospectuses,  circulars,  or  reports  containing  fraudulent  mis- 
representations or  concealments  concerning  the  compan^-'s  affairs, 
and  persons  are  induced  by  these  documents  to  purchase  shares  of 
the  stock,  or  to  enter  into  contracts  for  their  purchase,  and  thereby 
sustain  a  loss,  such  defrauded  stockholders  may,  as  has  already 
been  shown,  either  obtain  the  relief  by  repayment  or  rescission  against 
the  corporation,  or  may  obtain  relief  against  the  fraudulent  direct- 
ors personally  by  means  of  an  equitable  suit  for  an  accounting 
and  repayment  of  the  money,  or  by  an  action  at  law  for  the  deceit. 
Txhe  equitable  suits  against  the  directors  must  plainly  be  brought 
by  the  stockholders,  and  not  by  the  corporation,  since  the  wrong 
is  not  done  to  the  corporate  property  or  franchises,  but  consists 
wholly  in  a  violation  of  the  stockholders'  proprietary  rights  in 
their  shares  of  stock.^  Such  a  suit  can  not  be  maintained  by  one 
stockholder  suing  on  behalf  of  himself  and  all  others  similarly 
situated ;  the  injury  is  several  and  individual ;  each  defrauded 
sti)cl\-ho]der  nuist  sue  for  himself. - 

§  1093.  Second  Class.  Ultra  Vires  Proceedings  of  Directors. — 
In  a  second  class  of  cases,  Avhere  the  directors  are  not  charged  with 
any  misappropriation  of  the  corporate  property  for  their  own  bene- 
fit, nor  with  any  breach  of  their  fiduciary  duty  to  the  corporation, 
but.  although  purporting  to  act  for  the  common  welfare,  they  have 
adopted,  or  are  about  to  adopt,  some  measure  which  is  ultra  vires. 
01-  beyond  the  scope  of  their  corporate  powers,  a  suit  may  be  prose- 

*Kisch  V.  Cent.  Ey.  of  Vciioziicla.  3  Dp  Gpx,  J.  &  S.  122;  see  ante,  §  881. 
^'Turquand   v.  Marshall,   L.   11.   4   Cii.   :J7G,   :iS5. 


§  1094  EQUITY    JUKlSi'UUUEXCL:.  G30 

yated  against  them  by  stockholders  to  obtain  the  appropriate  re- 
/.lef,  either  of  reeission  or  of  prevention/  Under  some  cireuni- 
stanees,  even  a  single  dissentient  stockholder  would  not  be  bound 
by  such  an  act,  done  by  a  unanimous  board  of  directors,  ar.d  ap- 
pi'oved  by  all  the  other  stockholders  except  himself.  The  theory 
of  this  class  of  suits  is,  that  a  stockholder  has  a  right  that  the 
operations  of  the  corporation  should  be  kept  by  the  directors 
within  the  powers  conferred  by  its  charter;  every  measure  which 
ti'anscends  those  powers,  although  done  in  good  faith,  violates  the 
lights  which  inhere  in  the  ownership  of  stock,  and  puts  the  value 
of  the  stock  itself  at  hazard.  The  suit  may  be  brought  by  a  single 
stockholder  suing  on  his  own  account  alone,  or  by  a  stockholder 
suing  on  behalf  of  himself  and  all  others  who  are  similarly  sitiiated. 
The  corpoi'ation  is,  of  coui-se,  made  a  co-defendant  and  any  other 
corporation  or  person  who  has  joined  in  the  ultra  vires  transaction 
may  also  be  made  a  co-defendant.-  There  is  also  a  special  action 
strictly  analogous  to  those  properly  belonging  to  this  class.  When 
the  managing  body  are  doing  or  are  about  to  do  an  ultra  vires 
act  of  such  a  nature  as  to  produce  puhlic  mischief,  the  attoiiicy- 
general  as  the  representative  of  the  public  and  of  the  government, 
may  nuiintain  an  equitable  suit  for  ])reventive  relier."' 

§  1094.  Third  Class.  Wrongful  Dealing  with  Corporate  Proper- 
ty.— In  this  vastly  most  numermis  and  important  class,  the  wrong- 
ful acts  of  the  directors  or  officers  primarily  and  immediately  atfect 
the  corporation,  either  by  misuse  of  its  property  or  by  abuse  of  its 
franchises.  The  kinds,  forms,  and  modes  of  such  wrongful  acts 
are  practically  unlimited  in  number  or  variety.  In  general,  where 
the  directors  or  oificers,  or  some  of  them,  cause  a  loss  of  corporate 
proper!}^  by  negligence,  or  culpable  lack  of  i)rudence,  or  failure 
to  exercise  their  functions;  or  fraudulently  misappropriate  the 
corporate  property  in  any  manner,  whether  for  their  own  benefit 
or  for  the  benefit  of  third  persons;  or  obtain  any  undue  advantage, 
benefit,  or  profit  for  themselves  by  contract,  purchase,  sale,  or  other 
dealings  under  color  of  their  ot^cial  functions;  or  misuse  the  fran- 
chises, or  violate  the  rules  established  by  the  chartei-  or  the  by- 
laws for  theii'  management  of  the  corporate  atfairs;  or  in  any  other 
similar  manner  commit  a  breach  of  their  fiduciary  obligations  to- 
wards the  corporation,  so  that  it  .sustains  an  injury  or  loss,  and  a 
liability  devolves  upon  themselves.— then  the  corporation  is  the 
party   which    must,    as   the    plaintiff,    luring    an    equitable    suit    for 

'Russell   V.   Wakefield,  etc.,   Co.,   L.  R.  20   Eq.   474,   4S1. 

=  Ribon  V.  R.  R.  Cos.,  16  Wall.  440:  Elyton  Land  Co.  v.  Dowdcll,  113  Ala. 
177,  20  South  981,  .59  Am.  St.  Rep.  105. 

='Atty.-Gen.   v.   Creat   Western   Ry.,   L.   R.   7   Ch.    7G7. 


631  CORPOKATIOX    DIEFXTOHS.  §  109  o 

relief  against  the  wrong-doers;  the  trust  relation  between  itself 
as  the  cestui  que  trust  and  the  defaulting  directors  or  oi^- 
cers  as  trustees  has  been  violated,  and  as  in  all  like  cases  the  cestui 
que  trust  is  primarily  the  only  party  to  sue  for  redress.  As  a 
general  rule,  courts  of  equity  will  not  interfere  with  tlie  internal 
management  of  corporations  by  means  of  suits  brought  hy  .stock-h old- 
era  against  directors,  officers,  or  other  stockholders.^  In  cases  be- 
longing to  this  class,  therefore,  whatever  be  the  nature  of  the  par- 
ticular wrong,  Avhether  intentional  and  fraudulent,  or  resulting 
from  negligence  or  want  of  reasonable  prudence,  and  Avhatever  be 
the  indirect  loss  occasioned  to  individual  stockholders,  no  equitable 
suit  for  relief  against  the  wrong-doing  directors  or  officers  can 
be  maintained  by  a  stockholder  or  stockholders  individually,  nor 
by  a  stockholder  suing  representatively^  on  behalf  of  all  others  sim- 
ilarly situated,  unless  the  special  condition  of  circumstances  exists 
to  be  described  in  the  next  following  paragraph,  namely,  that  the 
corporation  either  actually  or  virtually  refuses  to  prosecute.  Even 
if  the  stockholder  alleges  that  the  value  of  his  own  stock  has  been 
depreciated  by  the  defendant's  acts,  or  that  he  has  sustained  otlier 
special  danuige,  he  is  not  thereby  entitled  to  maintain  the  suit. 
The  reasons  for  this  doctrine  have  already  been  explained.  The 
stockholder,  having  no  estate,  legal  or  equitable,  in  the  corporate 
property,  has  no  locus  standi  in  the  courts  while  the  corporation, 
in  which  alone  are  vested  the  corporate  property  and  franchises, 
is  able  and  willing  to  sue  for  their  protection.-  Differing  from 
this  class  merely  in  form,  there  is  a  special  group  of  eases  governed 
by  the  same  doctrine.  If  the  corporation  has  been  dissolved,  or  is 
in  the  process  of  winding  np,  then  the  suit,  which  Avould  otherwise 
have  been  brought  in  its  name,  may  l)e  maintained  by  the  receiver, 
official  liquidator,  or  other  official  representative  Avho  has  succeeded 
to  its  property  and  franchises  for  the  purpose  of  the  final  settle- 
ment.'" 

§1095.  Fourth  Class.  The  Same  Wrongful  Dealing  with  Cor- 
porate Property — The  Corporation  Refuses  to  Sue. — Although  the 
corporation  holds  all  the  title,  legal  or  equitable,  to  the  corporate 
property,  and  is  the  immediate  cestui  que  trust  under  the  directors 
with  respect  to  such  jiroperty,  and  is  theoretically  the  only  proper 

MJreaves  v.  (loujje,  (19  N.  Y.  154,  1.57. 

Mlawes  v.  Oakland,  104  I'.  S.  450,  2G  L.  od.  S27;  Yale  Has  Stove  Co.  v. 
^Yilf'0\^  64  Conn.  101,  •20  .^tl.  .30.'?,  42  Am.  St.  lie]).  150.  25  L.  R.  A.  00; 
Decatur  Mineral  Land  Co.  v.  Palm,  113  Ala.  531,  21  South.  315,  59  Am.  St. 
Rep.  141:  Jolms  v.  :\lf Lester.  1.37  Ala.  2S3.  34  South.  174,  97  Am.  St.  Rep. 
27,    and    note. 

'Hun   V.   Cary.   82  X.   Y.   fi5.   .37    Am.   Rep.   54(1.   IT.   &   B.   507. 


§  1095  EQUITY    JUIIISPfiUDEXCK.  €32 

party  to  sue  for  wrongful  dealings  with  that  property,  yet  courts 
of  equity  recognize  the  truth  that  the  stockholders  are  ultimately 
the  only  beneficiaries;  that  their  rights  are  really,  though  indirectly, 
l)rotected  by  remedies  given  to  the  corporation;  and  that  the  final 
object  of  suits  by  the  corporation  is  to  maintain  the  interests  of  the 
stockholders.  While,  in  general,  actions  to  obtain  relief  against 
wrongful  dealings  with  the  corporate  property  by  directors  and 
officers  must  be  brought  by  and  in  the  name  of  the  corporation, 
ye\  if  in  any  such  case  the  corporation  should  refuse  to  bring  a 
suit,  the  courts  have  seen  that  the  stockholders  would  be  without 
any  immediate  and  certain  remedy,  unless  a  modification  of  the 
general  rule  was  admitted.  To  that  end  the  following  modification 
of  the  general  rule  stated  in  the  last  preceding  paragraph  has  been 
established  as  firmly  and  surely  as  the  rule  itself.  Wherever  a 
cause  of  action  exists  primarily  in  behalf  of  the  corporation  against 
directors,  officers,  and  others,  for  wrongful  dealing  with  corporate 
property,  or  wrongful  exercise  of  corporate  franchises,  so  that  the 
remedy  should  regularly  be  obtained  through  a  suit  by  and  in 
the  name  of  the  corporation,  and  the  corporation  cither  actual]  1/  or 
virtually  refuses  to  institute  or  prosecute  such  a  suit,  then,  in  or- 
der to  prevent  a  failure  of  justice,  an  action  may  be  brought  and 
maintained  by  a  stockholder  or  stockholders,  either  individually  or 
suing  on  behalf  of  themselves  and  all  others  similarly  situated, 
against  the  wrong-doing  directors,  officers,  and  other  persons:  but 
it  is  absolutely  indispensable  that  the  corporation  itself  should 
be  joined  as  a  party. — usually  as  a  co-defendant.  The  rationale  of 
tliis  rule  should  not  be  misapprehended.  The  stockholder  does  not 
l)i'ing  such  a  suit  because  his  rights  have  been  directly  violated, 
or  because  the  cause  of  action  is  his.  or  because  he  is  en- 
titled to  the  relief  sought;  he  is  permitted  to  sue  in  this  manner 
simply  in  order  to  set  in  motion  the  judicial  machinery  of  the  court. 
The  stockholder,  either  individually  or  as  the  representative  of 
the  class,  may  commence  the  suit,  and  may  prosecute  it  to  judg- 
ment; but  in  every  other  respect  the  action  is  the  ordinary  one 
brought  by  the  corporation,  it  is  maintained  directly  for  the  benefit 
of  the  corporation,  and  the  final  relief,  when  obtained,  belongs  to 
the  corporation,  and  not  the  stockholder-plaintiff.  The  corpora- 
tion is,  therefore,  an  indispensably  necessary  party,  not  simply  on 
the  general  principles  of  equity  pleading  in  order  that 
it  may  be  bound  by  the  decree,  but  in  order  that  the 
relief,  when  granted,  may  be  awarded  to  it,  as  a  party 
to  the  record,  by  the  decree.  This  view  completely  an- 
swers the  objections  which  are  sometimes  raised  in  suits 
of     this     class,     that     the     plaintiff     has     no     interest     in     the 


633  CORPORATION   DIRECTORS.  §  1095 

subject-matter  of  the  controversy  nor  in  the  relief.  In  fact,  the 
phiintiff  has  no  such  direct  interest;  the  defendant  corporation 
alone  has  any  direct  interest;  the  plaintiff  is  permitted,  notwith- 
standing his  want  of  interest,  to  maintain  the  action  solely  to  pre- 
vent an  otherwise  complete  failure  of  justice.  When  may  such 
an  action  be  brought?  I  have  already  stated  the  rule  in  its  most 
general  form,  that  a  stockholder  may  thus  sue  whenever  the  cor- 
poration either  actually  or  virtually  refuses  to  permit  a  proceeding 
by  itself.  These  are  two  distinct  conditions  of  fact ;  and  the  cir- 
cumstances must  determine  whether  any  particular  case  belongs 
to  one  or  the  other  of  the  two  conditions.  In  general,  a  case 
should  come  within  the  first  condition;  and  it  should- appear  that 
the  board  of  directors  or  other  managing  body  has  actually  re- 
fused to  bring  or  permit  an  action  in  its  own  name.  To  this  end  the 
plaintiff'  should  allege  an  application  to  the  directors  or  managing 
body,  a  reasonable  notice,  request,  or  demand,  that  they  would 
institute  proceedings  on  the  part  of  the  corporation  against  the 
wrong-doers,  and  their  refusal  to  do  so  after  such  reasonable 
request  or  demand.  These  allegations  are  material  and  issuable; 
if  controverted  by  the  defendant,  they  must  be  proved.  If  the 
proof  of  them  fails,  the  whole  foundation  of  the  plaintiff's  action 
is  gone.  This  condition  of  fact,  however,  is  not  indispensable ; 
the  action  may  be  maintainable  without  showing  any  notice,  re- 
quest, or  demand  to  the  managing  body,  or  any  actual  refusal 
by  them  to  prosecute;  in  other  words,  the  refusal  may  be  virtual. 
If  the  facts  as  alleged  show  that  the  defendants  charged  with 
the  wrong-doing,  or  some  of  them,  constitute  a  majority  of  the 
directors  or  managing  body  at  the  time  of  commencing  the  suit, 
or  that  the  directors  or  a  majority  thereof  are  still  under  the  con- 
trol of  the  wrong-doing  defendants,  so  that  a  refusal  of  the  man- 
aging body,  if  requested  to  bring  a  suit  in  the  name  of  the  cor- 
poration, may  be  inferred  with  reasonable  certainty,  then  an  action 
by  a  stockholder  may  be  maintained  without  alleu'ing  or  proving 
any  notice,  request,  demand,  or  express  refusal.^  In  like  manner, 
if  the  plaintiff's  pleading  discloses  any  other  condition  of  fact 
which  renders  it  reasonably  certain  that  a  suit  by  the  corporation 
would  be  impossible,  and  that  a  demand  therefor  would  he  iiugato- 

*  Sears  v.  Hotchkiss,  25  Conn.  171.  G5  Am.  Dee.  557;  Hawes  v.  Oakland, 
104  U.  S.  450,  26  L.  od.  827;  Corbus  v.  Alaska  Treadwoll  Gold  :M.  Co.,  187 
U.  S.  4.55,  21  Pup.  Ct.  156;  Mason  v.  Harris,  L.  TJ.  11  Ch.  Div.  97,  107.  per 
Jessel,  M.  R. ;  Winobiirirli  v.  U.  S.  etc.  Co.,  173  Mass.  GO,  53  N.  E.  145,  73 
Am.  St.  Rep.  261.  (sufficient  demand  made)  :  Ashton  v.  Dashaway  Ass'n,  84 
Cal.  61.  22  Pae.  660.  -IP,  Vno.  1001.  7  L.  R.  A.  800.  (demand  unnecos<nrv)  : 
Pencil  le  v.  State  F.  M.  II.  Ins.  Co.,  74  Minn.  67,  76  N.  W.  1026,  73  Am.  St 
Rep.    326. 


S  1097  EQUITY  JL"Kl,s^I;uDE^X'E.  G34 

ry,  the  action  may  be  maintained  without  averring  a  demand  or 
any  other  similar  proceeding-  on  the  part  of  the  stockholder-plain- 
tiff.^ 

§  1096.  Special  Classes. — In  addition  to  the  foregoing  general 
classes  of  snits.  there  are  certain  special  classes,  analogous  to  the 
former,  and.  like  them,  based  upon  the  conception  of  an  existing 
([uasi  trust  relation,  and  of  a  breach  of  the  fiduciary  duty  growing 
out  of  such  relation.  These  special  cases  should  be  mentioned,  in 
order  to  complete  the  view  of  partial  trusts  connected  with  the 
existence  and  management  of  corporations.  In  the  first  place,  an 
action  may  be  maintained  by  the  corporation  against  its  pro- 
moters, to  set  aside  a  transfer,  or  to  rescind  an  agreement,  or  to 
obtain  other  proper  relief,  whenever,  in  the  organization  of  the 
company,  there  has  been  a  breach  of  the  fiduciary  duty  owed  by 
the  promoters  to  the  future  corporation.^  Secondly,  under  the 
same  general  circumstances  in  which  an  action  may  be  maintained 
by  a  stockholder  against  wrong-doing  directors  or  officers,  if  the 
corporation  is  municipal,  or  the  trust  is  public  and  charitable, 
the  attorney-general  may  sue,  as  a  representative  of  the  public  ben- 
eficiaries, for  appropriate  relief.-  .  .  . 

§1097.  Guardians. — Guardians  of  infant  wards,  committees  or 
guardians  of  persons  non  compotes  mentis,  and  even  agents  where 
tke  agency  is  strictly  fiduciary,  stand  in  the  relation  of  (piasi  trustees 
towards  their  wards  or  principals.  It  is  true,  they  do  not  hold  the 
title  to  the  [)roperty  which  is  the  subject-matter  of  the  relation, 
but  their  position  and  oblic'ations  are  wholly  fiduciaiy.  Equity  has. 
Therefore,  a  general  jurisdiction,  at  the  suit  of  the  wards  or  other 
lieneficiaries.  to  compel  a  performance  of  the  trust  duties,  to  relieve 
agaiust  viohitions  of  these  ti'ust  obligations,  to  direct  an  accounting 
and  final  settlement  of  the  quasi  trust,  and  to  grant  other  special 
relief  made  requisite  by  the  circumstances.  This  jurisdiction  exists 
throughout  the  American  states,  except,  perhaps,  in  a  very  few, 
where  statutes  have  given  exclusive  control  over  such  matters 
to  some  particular  ti'ibunal,  to  be  exercised  in  some  prescribed  man- 
ner.^ 

=  Esc'h\voiler  v.  Stowoll,  78  Wis.  31G.  47  X.  W.  nfil.  2:1   Am.  St.  Hep.  411. 
'  Yale  Gas   Stovo  Co.  v.   Wilcox.  04  Conn.    101.  29   Atl.   rJO.",.  42   Am.   St.   Rep. 
159,    2.1    L.    R.    A.    90. 
=  Stone  V.  P.evans,  88  Minn.   127,  97  Am.  St.  Rep.  50G,  92  IST.  W.  520. 
*  Cole's  Cora.  v.  Cole's  Adm'r,  28  Gratt,   3G5, 


635  SEPAllATE    ESTATE   01<    MARRIED    W  OMEN.  §  109S 


CHAPTER   SECOND. 

ESTATES  AND  INTERESTS  OF  MARRIED  WOMEN 


SECTION  I. 
THE   SEPARATE   ESTATE   OF  MARRIED   WOMEN. 

ANALYSIS. 

5   1008.  Orifi'in    and  general   iiatuiv. 

§   1099.  tStatutory  legal  separate  estate  in  the  United  States. 

§    1100.  How  the  separate  estate  is  created;  trustees  not  necessary. 

§   1101.  The   same:      \]y   wliat    modes   and   instruments. 

§   1102.  The    saiiif:      What    words    are    sufficient. 

§   1103.  What  property   is   included. 

§   1104.  Her  power  of  disposition.  • 

§   1105.  The  same,  in  the  United  States. 

§    llOli.  Her  disposition  under  a  power  of  appointment. 

§   1107.  Kestraints  u])on  anticipation. 

§   1108.  \^'hat    words   are   suflicient    to   create   a    restraint. 

§    1109.  Eflect    of    the     restraint. 

§   1110.  End   of   the   separate  estate;    its   devolution   on   the    wife's   death. 

§   1111.  Pin-money. 

§    1112.  \\'ife's    paraphernalia. 

§    1113.  Settlement  or  conveyance  by  the  wife  in   fraud   of  tlie  marriage. 

§  1098.  Origin  and  General  Nature. — The  married  wom- 
an's separate  estate,  as  recognized  by  e(|uity,  and  independently  of 
any  statutory  legislation,  is  merely  a  particular  instance  of  trusts, 
and  the  juvi.sdiction  of  equity  over  it  has  been  established  from 
a  very  early  day.^  As  the  wife's  interest  in  the  property  held  to  her 
separate  use  is  wholly  a  creature  of  equity,  the  equitable  jurisdiction 
over  it  is,  of  course,  exclusive.  The  notion  of  an  equitable  separate 
estate  free  from  the  claims  of  the  husband  was  avowedly  introduced 
in  order  to  evade  the  harsh  and  unjust  dogmas  of  the  law,  and.  in 
direct  antagonism  to  the  common-law  theory  which  completely  mer- 
ges the  legal  personality  of  the  wife  in  that  of  her  husband,  equity 
regards  and  treats  the  married  Avoman.  with  relation  to  such  sepa- 

*  See  Drake  v.  Storr,  2  Freem.  203,  which  shows  that  in  A.  D.  1G95,  the  wife's 
separate  estate  was  a  well-settled  doctrine  of  equity. 


§  1099  ECJUITY    JUIUSPRUDEXCE.  63(J 

rate  property,  in  many  respects  as  though  she  were  unmarried. - 
This  capacity  or  status  of  being  as  though  a  feme  sole  is,  however, 
on!}'  pai'tial.  As  regards  the  husband  and  his  common-law  rights 
over  the  property,  it  is  absolute ;  as  regards  third  persons,  and  her 
power  of  disposing  and  contracting,  it  is  never  absolute,  and  luai/ 
be  restricted  to  any  extent  by  the  terms  of  the  trust  and  of  the  in- 
strument creating  the  separate  estate.  It  should  be  carefully  ob- 
served that  a  wife's  trust  estate  and  her  separate  estate  are  not 
synonymous  or  convertible  terms.  The  separate  estate  of  a  mar- 
i-ied  woman  must,  in  contemplation  of  equity,  be  a  trust  estate, 
but  an  estate  held  in  'L,rust  for  her,  in  which  she  is  the  cestui  que 
trust,  is  not  necessarily  a  separate  estate.  The  peculiar  doctrine 
of  the  wife's  "separate  estate"  applies  only  to  such  property  as.  be- 
ing in  contemplation  of  equity  held  in  trust  for  her,  is,  by  the 
terms  of  the  conveyance  or  agreement,  held  or  agreed  to  be  held 
to  her  separate  usc:^  The  separate  estate  may  include  every  species 
of  property,  real  or  personal,  and  the  trusts  upon  which  it  is  held 
may,  except  when  modified  or  restricted  by  statute,  be  of  every 
extent  or  variety,  but  nmst,  of  course,  be  express.  In  all  those 
states  which  have  made  the  sweeping  changes  in  the  sj^stem  of 
trusts,  heretofore  described,  trusts  of  property  held  to  the  separate 
use  of  married  women  must,  of  course,  confomi  to  the  general  st?.t- 
utory  regulations. 

§  1099.  Statutory  Legal  Separate  Estate. — The  separate  estate 
thus  described  is  wholly  a  creature  of  equity;  the  wife's  interest 
is  purely  an  equitable  one,  since  the  legal  title  is  either  vested 
in  actual  trustees,  or  is  held  by  the  husband  in  the  character  of  a 
trustee ;  and  the  jurisdiction  over  it  is  exclusively  equitable.  Mod- 
ern statutes  in  nearly  all  of  the  states  have  made  most  radical 
changes  in  the  common-law  relations  of  married  women  to  their 
property,  and  have  incidentally  enlarged  the  jurisdiction  of  equity, 
so  far  as  it  is  concerned  with  the  contracts  of  married  women, 
by  extending  it  to  their  legal  separate  estates  created  by  statute. 

-The  true  meaning  of  the  doctrine  is  explained  in  Pike  v.  Fitzeibbon,  L.  R. 
17  Cli.  Div.  454;  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494;  Taylor  v.  Meads, 
4  De  Gex,    J.  &  8.  597,  603,  604. 

'■'  For  example,  if  land  is  conveyed  to  A  in  fee,  in  trnst  for  a  married 
woman  and  her  heirs,  or  in  trust  for  a  single  woman  and  her  heirs, 
and  she  afterwanls  marries,  thus  creating  an  ordinary  passive  trust  in  fee,  tlie 
married  woman's  equitable  estate  in  the  land  would  not  be  a  '"separate 
estate";  her  husband  would  be  entitled  to  curtesy  in  it;  her  power  of  convey- 
ing it  and  the  mode  of  conveying  would  be  governed  by  the  same  rules  which 
apply  to  Iier  legal  estates  in  fee;  her  capacity  to  contract  would  not  be  enlarged: 
See  ante,  §g  989.  990.  and  cases  cited;  Taylor  v.  Meads,  4  De  Gex,  J.  &  S.  597, 
604,    605,   per    Lord    Westlmrj'. 


637  SEPAUATK  J-Sl'ATE  Ol  .M  AKUIKI)  WO.MK.V.  §  1  lUU 

These  statutes  do  not,  it  is  true,  create  any  e(juitable  estate  in 
the  property  of  wives;  their  eflect  is  to  vest  a  purely  legal  title 
in  married  women,  and  to  free  such  title  from  the  rights,  interests, 
and  claims  which  the  common  law  gave  to  husbands.  But  while 
this  legislation  empowei's  married  women  to  acquire  and  hold  prop- 
erty separate  and  distinct  from  their  husbands,  and  while  it  renders 
their  title  and  estate  entirely  legal,  and  dispenses  with  the  necessity 
of  trustees,  it  does  not,  in  most  of  the  states,  entirely  remove  the 
common-law  disabilities  of  entering  into  contracts,  nor  clothe  mar- 
ried women  with  the  general  capacity  of  making  contracts  which 
are  personally  binding  at  law,  and  enforceable  against  them  by 
legal  actions  and  personal  pecuniary  judgments.  The  matter  of 
married  women's  contracts,  and  of  their  enforcement  against  the 
property  rather  than  the  persons  of  wives,  is  therefore  left  exclusive- 
ly to  courts  of  equity,  and  is  governed  by  equitable  doctrines.  The 
jurisdiction  of  equity  in  the  enforcement  of  married  women's  liabil- 
ities against  their  separate  property  has  thus  been  enlarged,  since 
it  has  been  extended  in  these  states  to  all  the  property  which 
a  wife  may  now^  hold  by  a  legal  title,  and  is  not  confined  to  such 
equitable  estate  as  is  held  by  trustees  for  her  separate  use.  In 
a  very  few  states  the  legislation  has  removed  the  statutory  sep- 
ar^ite  estate  of  married  woman  entirely  out  of  the  equitable  juris- 
diction, by  conferring  upon  them  the  power  of  making  contracts  in 
relation  to  it,  and  by  rendering  these  contracts  personally  binding 
ui)on  them  at  la\v,  and  enforceable  against  them  personally  by  or- 
dinary legal  actions,  pecuniary  judgments,  and  executions.^ 

§  1100.  How  t'he  Separate  Estate  is  Created — Trustees  not  Neces- 
sary.— Although  the  wife's  separate  estate  is  an  equitable  one,  being, 
in  conception  of  equity,  a  trust  estate  with  the  legal  and  the  equi- 
table title  separated,  and  although  in  strict  theory  and  in  every 
regular  and  formal  settlement  the  legal  title  should  be  conveyed 
to  or  held  by  express  trustees,  yet  it  is  well  settled,  whateviM- 
d()ul)ts  may  have  once  existed,  that  the  interposition  of  actual 
trustees  is  unnecessary.  If  property  is  in  any  mode,  by  sufficient 
and  apt  words  to  express  the  intention,  given  directly  to  a  wife, 
either  before  or  after  marriage,  for  her  sole  and  separate  use, 
"without  the  intervention  of  trustees,  equity  will  carry  the  intention 
into  effect,  will  regard  the  property  as  her  separate  estate,  and 
•will  protect  it  against  the  claims  of  her  husband  and  of  his  cred- 
itors. Equity  accomplishes  this  result,  in  the  absence  of  expres.s 
trustees',  hy  declaring  and  lu)lding  the  hus])and  himself  as  a  trustee. 


'Soo.  also,  Iho  En.<rlish   ^^rarricd   Woiiion's  Property  Act,   1882    (45  &   46  Vict. 
C.  To),  as  amended  18!t3   (oG  «i  57  Vict.  c.  (JS). 


§1102  E(jLlTl    JLIUSPKUDENCE.  638 

with  respect  to  such  property,  for  his  wife/  The  rationiile  of  this 
rule  is  very  clear.  By  the  equitable  conception,  in  order  to  the 
existence  of  a  trust,  there  must  be  a  separation  of  the  legal  and 
equitable  titles.  Although  property  is  given  directly  to  a  married 
woman  in  such  a  way  that  she  would  hold,  the  perfect  legal  title 
if  she  were  single,  still,  by  the  operation  of  common-law  doctrines, 
the  husband,  by  virtue  of  the  marriage,  becomes  himself  vested 
with  the  legal  estate  in  such  property,  either  absolutely  or  for  his 
life.  Equity  does  not  abrogate  this  common-law  doctrine,  nor 
deny  the  legal  title  acquired  by  the  husband;  on  the  contrary,  it  ad- 
mits Jiis  legal  title,  but  declares  that  he  shall  hold  it  as  a  trustee 
for  his  wife, — impresses  a  trust  upon  it  in  her  favor.  In  this  man- 
ner equity  effects  a  separation  of  the  titles,  although  there  are  no 
words  expressl}^  creating  a  trust,  or  expressly  vesting  the  legal 
title  in  a  trustee. 

§1101.  The  Same.  By  What  Modes  and  Instruments.— The 
wife's  separate  estate  may  include  any  species  of  property,  and  may 
be  created  by  any  of  the  following  modes  or  instruments:  1.  By 
a  written  antenuptial  agreement  with  her  intended  husl)and,  or 
marriage  settlement,  which  may  embrace  her  own  property,  or 
that  of  her  intended  husband,  or  that  of  third  persons,  and  may 
covenant  to  bring  in  after-acquired  propertj^  of  either  herself 
or  her  husband.  2.  By  a  post-nuptial  agreement  with  her  husband, 
under  certain  circumstances.  3.  By  gifts  from  her  husband  dur- 
ing coverture,  if  made  absolutely,  and  not  intended  as  mere  para- 
phernalia, or  to  be  used  merely  as  ornaments.  The  two  latter 
modes  are,  however,  so  far  subject  to  the  rights  of  the  hu.sband's 
creditors,  that  if  made  with  intent  to  hinder,  delay,  or  defraud 
such  creditors,  they  would  be  void.  4.  By  gifts  from  strangers 
made  directly  to  the  wife  during  coverture.  5.  By  conveyance, 
devise,  or  bequest  of  property  expressly  limited  to  her  separate 
use,  made  to  her  directly,  either  before  or  during  coverture.^ 

§1102.     The  Same:     What  Words  are  Sufficient. — No  particular 

'Slanniiiir  v.  Style,  li  P.  Wnis.  334,  337-339,  Ames  Trusts  164;  Richardson 
V.  DeGiverville,  107  Mo.  422,  17  S.  W.  974,  28  Am.  St.  Kep.  426;  3Iiller  v. 
.Miller's  Adm'r,  92  Va.  ,510,  23  S.  E.  891. 

'Ante-nuptial  agreements  and  marriage  settlements:  Reade  v.  Livingston.  3 
•lohns.  Ch.  481,  8  Am.  Dec.  520;  Lee  v.  Lee,  4  Ch.  Div.  175,  179;  Williamson  v. 
Yager,  91  Ky.  282,  15  S.  W.  660,  34  Am.  St.  Rep.  184  and  note.  Post  nuptial 
agreements,  if  valid  against  husband's  creditors:  :Moore  v.  Page,  111  U.  S.  117, 
4  Sup.  C^t.  388,  28  L.  ed.  373;  see  ante,  §  973.  Absolute  gifts  from  the  hii.s- 
band:  Ogden  v.  Ogden.  60  Ark.  70,  28  S.  W.  796,  46  Am.  St.  Rep.  151;  Botls 
V.  Gooch,  97  Mo.  88.  11  S.  W.  42,  10  Am.  St.  Rep.  286.  Husband's  assent  to 
iier  use  of  her  earnings;  evidence  must  be  clear,  unequivocal,  and  convincing;  see 
i^ailey  v.  Gardner.  31  \V.  Va.  94,  5  S.  E.  636,  13  Am.  St.  Rep.  847.  Limitations 
to  her  separate  use:     Prout  v.  Roby,  15  Wall.  471,  21  L.  ed.  58. 


639  SEPAKATK  KSTATE  OF  .MAUi;ii:i)  WO-MKN-.  §  11U3 

form  of  words  is  necessary  in  order  to  vest  property  in  a  married 
woman  for  her  separate  use,  and  to  thus  create  a  separate  estate. 
The  intention  to  do  so,  although  not  expressed  in  terms,  may  be 
inferred  from  the  nature  of  the  provisos  annexed  to  the  gift.     The 
intention,  however,  must  be  clear  and  unequivocal,  not  merely  to 
confer  the  use  upon  the  wife  for  her  benefit,  but  also  to  exclude  the 
husband.    The   doctrine  was  very  concisely  and   accurately   stated 
by  Vice-Chancellor  Malins  in  a  recent  case:    "There  must  be,  in 
a  Avill,  or  in  any  other  instrument,  an  mtention  shown  that  the  wife 
s]:afl  tal-e  and  that  the  husband  shall  not."'^    The  decisions  upon  partic- 
ular  expressions   are    very    numerous,    and    somewhat    conflicting. 
From  a  comparison  of  the  cases  it  would  seem  that  the  American 
courts  have  been  more  liberal  than  the  English  in   giving  effect 
to   language.     I  have   placed   in  the   foot-note   some   examples   of 
words  held  to  be  sufficient,  and  oi  those  held  to  be  insufficient.- 
§  1103.     What  Property  is  Included. — Property  of  any  kind,  real 
or  personal,   and   any  interest  therein,  may  be  conveyed,  settled, 
or  held  to  the  wife's  separate  use.     Her  equitable  separate  estate 
may  therefore  include  estates  in  fee  in  land,  in  possession  or  rever- 
sion, life  estates,  estates  for  years,  things  in  action,  securities,  .spe- 
cific  chattels,   or  money. ^     Where   a   wife   has   a  separate   estate, 
the  rents,  income,  and  profits  thereof  are,  of  course,  her  separate 
property;  and  if  the  savings  of  such  income  are  invested  by  her, 
the  investment  so  made  will   also   be  her  separate  property.-     In 
general,  when  land  or  other  property  is  purchased  by  or  on  behalf 
of  the  wife  with  proceeds  of  her  separate  estate  it  becomes  im- 
pressed with  the  same  character.'     The  wife's  earnings  may  also, 
by  the  assent  of  her  husband,  be  her  separate  property.*     Whih- 
e(|"uity  thus  provides  a  separate  property  for  a  Avife  free  from  the 
control    of   her   husband,    still,    she    may   so    deal    with    it   that    it 
it  will  lose  that  character.     If  the  wife,  acting  without  any  undue 
infiuence,    expressly    authorize   or   tactilj^    permit   her   husband    to 
receive  the  income  of  her  separate  property  and  apply  it  to  his 
own  uses  and  purposes,  or  to  receive  it  and  apply  it  for  the  benefit 

'In  re  Peacock's  Trusts,  L.  E.  10  Cli.  Div.  490,  495,  49();  Prout  v.  Eoby. 
If)  Wall.  471;  Carroll  v.  Lee,  3  Gill  &  J.  504,  22  Am.  Dec.  .S50;  Tennant  v. 
Ex'r  of  Stoiiey,  1  Rich.  Eq.  222,  44  Am.  Dec.  213;  Beaufort  v.  Collier,  C 
lluuipli.  487,  44  Am.  Dee.  321. 

-  Hlaiul  V.  Dawes,  L.  R.  17  Ch.  Div.  794 :  Jamison  v.  Brady,  0  Serg.  &  R. 
4f5G,  9  Am.  Dec.  400 ;  Massy  v.  Rowan,  L.  R.  4  H.  L.  28S. 

'As  to  property  to  be  acquired  in  future  embraced  in  the  covenants  of  a 
settlement,  see  Smith  v.  Lucas,  L.  R.  18  Cli.  Div.  531. 

=*  Askew  V.  Rooth,  L.  R.  17  Eq.  420. 

^'.lustis  V.  Enolish,  30  Gratt.  505. 

*. Jones  V.  Reid,  12  W.  Ya.  350,  29  Am.  Rep.  455.     See,  also,  ante,  §  1101,  note. 


§  1105  EQUITY  JUi{ls^'ltL"DE^'CE.  640 

of  the  family,  it  will  thereby  cease  to  be  her  separate  property 
and  become  his;  she  can  never  recall  it,  nor  claim  any  reimburse- 
ment/' 

§  1104,  Her  Power  of  Disposition. — The  general  doctrine  long 
settled  by  the  English  court  of  chancery  is,  that  a  feme  covert, 
acting  with  respect  to  her  separate  property,  is  competent  to  act 
in  all  respects  as  if  she  were  a  feme  sole.^  Among  these  incidents 
of  substantial  ownership  is  the  jus  disponendi,  which  is  possessed 
and  may  be  exercised  by  the  married  woman  without  her  husband's 
assent,  unless  the  instrument  creating  the  separate  estate  contains 
restrictions  upon  the  power.  It  is  therefore  well  settled,  that  so 
far  as  the  separate  estate  embraces  personal  property,  money,  chat- 
tels, things  in  action,  chattels  real,  rents  and  profits  of  land,  al- 
though no  power  of  disposition  is  given  to  her  in  express  terms, 
she  may  dispose  of  it  as  though  she  M'^ere  unmarried,  by  acts  inter 
vivos  or  by  will.-  Where  the  separate  estate  embraces  land,  the 
wife's  power  of  disposition  over  her  life  estates  therein  has  never 
been  doubted,  and  her  contracts  to  sell  or  to  mortgage  such  life 
estates  have  alwaj's  been  specifically  enforced  against  her.^  With 
respect  to  estates  in  fee  settled  or  held  to  her  separate  use,  there 
had  formerly  been  some  doubt  arising  from  conflicting  authorities. 
The  general  rule  is  now  established,  however,  that  the  wife's 
power  of  disposition  as  a  feme  sole  extends  to  estates  in  fee  in 
lands  as  fully  as  to  life  estates  or  to  personal  property.*  It  seems 
to  have  been  formerly  supposed  that  a  difference  existed,  in  the 
wife's  power  of  alienation  or  disposition,  between  the  case  where 
the  property  is  actually  held  by  trustees  to  her  separate  use  and 
the  case  where  the  property  is  conveyed  directly  to  herself  for 
her  sole  and  separate  use.  All  notion  of  any  such  difference  has 
been  abrogated  -.  the  same  power  of  disposition  belongs  equally  to 
both  these  conditions  or  forms  of  the  separate  estate.^  As  an 
incident  of  her  general  power  of  disposition,  unless  she  is  ex- 
pressly restrained  from  anticipation,  a  married  woman  renders 
her  separate  property  liable  for  a  breach  of  trust  by  her  trustees 
in  which  she  has  concurred,  and  for  a  breach  of  trust  which  she 
herself  commits.*' 

§  1105.     Her  Power  in  This  Country. — Such  being  the  rules  con- 

^Caton    V.    Kideout,    1    Macn.    &    G.    .599,    COl,    603;    Methodist    Epis.    Ch.   v. 
Jaques,  3  Johns.  Ch.  77,  90-92,  1  t^cott  08. 
■  Peacock  v.  INIonk,  2  Ves.  Sr.  190. 
-  Faring-ton  v.  Parker,  L.  R.  4  Eq.   116. 
^Major  V.  Lansley,  2  Russ.  &  M.   3.55,   3.57. 

*  Taylor  v.  ]\Teads,  4  De  Gex,  .T.  &  S.  597,  604-607.  per  Lord  Westbury. 

*  Kssex  V.  Atkins,  14  Ves.  542. 
•-lones  V.   Hiosiins.     L.  E.  2   Eq.    538, 


641  SEPARATE    ESTATE   OF    MARRIED    WOMEN.  §  llOi) 

cerning  the  wife's  jus  dispoiiendi  as  now  settled  in  England,  I 
shall  next  inquire  how  far  these  or  other  rules  have  been  adopted 
by  the  courts  of  the  various  American  states.  One  or  two  prelim- 
inary observations  are  very  important  in  determining  the  present 
condition  of  the  law  upon  this  subject  in  our  own  country.  In 
the  first  place,  in  very  many  of  the  states,  under  modern  statutes, 
where  property  is  conveyed  or  given  to  the  wife  directly,  she  now 
takes  a  full  separate  legal  estate  therein,  wholly  free  from  the  in- 
terests and  claims  of  the  husband,  and  has  over  it  the  power  of 
disposition  given  by  the  statute.^  In  the  second  place,  in  New 
York  and  the  other  states  which  have  adopted  the  same  type  of 
legislation,  w^here  lands  are  given  to  trustees  upon  an  express 
trust  for  the  benefit  of  a  married  Avoman,  the  cestui  que  trust  ac- 
quires no  estate  in  the  trust  property,  and  she  is  prohibited  from 
aliening,  charging,  or  binding  her  ow'n  interest.  With  regard  to 
the  main  question  concerning  the  wife's  power  of  disposition, 
there  is  such  a  divergence  of  opinion  among  the  American  de- 
cisions that  it  would  be  very  difficult,  if  not  in  fact  impossible, 
to  formulate  any  general  rule  as  established  by  their  authority.^ 
It  may  be  doubtful  whether  in  any  single  state  all  the  conclusions 
reached  by  the  English  courts  have  been  accepted  without  limita- 
tion or  modification.  The  American  states  may  be  broadly  sep- 
arated into  two  generic  classes;  the  decisions  which  mark  the  ex- 
istence of  these  clasnes  differ  not  in  any  matters  of  detail,  but  in 
the  underlying  principle.  In  the  first  class,  the  courts  have  ac- 
cepted the  principle  of  the  English  doctrine.  They  regard  the 
wnfe's  jus  disponendi  as  resulting  from  the  fact  of  an  equitable 
separate  estate  over  which  she  is,  partially  at  least,  a  feme  sole, 
and  not  as  resulting  from  the  permissive  provisions  of  the  in- 
strument   creating    such    separate    estate.     It    follows,   therefore, 


'  See  ante.  §  1000.  In  many  states  this  statutory  power  is  absolute,  as  tb.ougli 
she  were  unmarried. 

-  Intleed.    in    some    instances    ii    \\oiild    be    a    difficult    task    to    reconcile    the 

decisions  made  by  the  courts  of  tlio  same  states.     In  several  of  the  states  tlio 

courts  seem  to  have  rejjarded  the  wife's  separate  property,   instead   of  render - 

ine  her  a   feme  sole  with   respect  to  its  use,  as  depriving  her  of  all   riglits  of 

ownersliip   except   the   sinofle   one   of   enjoying   its    income.      These   judges   liave 

forgotten    that    a   nominal    ownership,    without    any    of    the   rights    incident    lo 

ownership,    without    the   power   of   aliening,   managing,    or   in    any   way    binding 

the  property,  is   in  reality  no  ownership.     A  wife  holding  a  so-called  separate 

estate,  but  whose  hands  are  tied,  and  who  is  completely  debarred  from  dealing 

with  it.  from  obtaining  credit  upon  it,  and  from  using  it  in  the  affairs  of  life. 

is  .actually  in  a  worse  position  than  the  wife  under  the  operation  of  common- 

law    rules,    whose    property    is    subject   to    tlue    control    and    disposition    of    Ihm- 

Ini-ibnnd. 

41 


§  11U7  EQUITY  jUKi!?Pi;uDi:xcE.  642 

where  the  instrument  creating  the  separate  estate  imposes  no  ex- 
press restrictions,  that  the  wife  has  a  general  power  of  disposing 
or  charging  it,  even  though  no  such  authority  is  in  terms  con- 
ferred. This  power  of  disposition,  however,  does  not  generally 
extend  to  the  corpus  of  the  land  held  for  her  separate  use  in  fee ; 
it  is  confined  to  j)ersonal  property,  the  rents  and  profits  of  the 
land,  and  perhaps  to  her  life  estates  in  lands."  In  the  states  com- 
posing the  second  class,  the  courts  have  widely  departed  from 
the  principle  of  the  English  doctrine.  They  regard  the  wife's 
power  over  her  separate  estate  as  resulting,  not  from  the  exist- 
ence of  an  equitable  separate  estate  itself,  but  from  the  permis- 
sive provisions  of  the  instrument  creating  such  estate.  They  have 
accordingly  adopted  the  general  rule  that  a  married  woman  has 
only  those  poAvers  of  disposing  or  charging  her  separate  property 
which  are  expressly  or  by  necessary  construction  conferred  upon 
her  in  the  instrument  conveying  the  property  or  creating  the 
trust,  and  that  in  determining  the  extent  of  these  powers  the  terms 
of  the  instrument  are  to  be  strictly  construed.'* 
•  §  1107.,  .Restraint  upon  Anticipation. — The  large  powers  of  deal- 
ing with  her  separate  property  as  though  .she  were  single,  thus 
given  to  the  wife  by  the  English  courts  of  equity,  tended  in  some 
degree  to  defeat  the  very  object  for  which  a  separate  estate  is 
created.  Since  the  wife  had  full  power  to  dispose  of,  charge, 
or  bind  her  separate  property  for  the  benefit  of  her  husband  as 
well  as  of  herself  or  others,  and  since  she  was  neces.sarily  exposed 
to  the  moral  influence  of  her  husband,  there  Avas  danger  lest 
her  separate  estate  should  virtually  be  as  much  under  his  control 
and  liable  for  her  debts  as  though  no  settlement  to  her  OAvn  sep- 
arate use  had  been  made,  and  the  property  were  left  under  the 
operation  of  common-law  rules.  Experience  shoAved  that  this  dan- 
ger Avas  actual.  To  obviate  it,  the  plan  Avas  contriA'ed  of  inserting 
in  the  settlement  or  eouA'cyance  a  clause  in  restraint  of  anticipa- 
tion, the  object  of  Avhicli  Avas  to  prevent  the  Avife  from  aliening 
or  charging  her  separate  property,  or  from  assigning  or  exercising 
other  acts  of  dominion  OA^er  the  income  until  its  payment  Avas  due 
and  actually  made.  The  experiment  proved  successful.  The  courts, 
gave  full  force  and  effect  to  the  clause  against  anticipation,  and 

'Radford  v.  Caiwilo,  13  \V.  Va.  572:  Dale  v.  Robinson,  51  Vt.  20,  31  Am. 
Rep.  669;  Bradford  v.  Greenwaj,  17  Ala.  797,  805,  52  Am.  Dec.  203;  Eiucli 
V.  Breckinridge.  16  B.  Mon.  482,  63  Am.  Dec.  553;  Webster  v.  Helm,  93  Tenn. 
322,  24  S.  W.  488. 

*  Cutter  V.  Butler,  25  N.  11.  343,  57  Am.  Dec.  330 :  Ewini;  v.  Smith,  3  Desaus. 
Eq.  417,  5  Am.  Dec.  557  (the  leading  case  of  this  class)  ;  MacConnell  v. 
1  I'ndsav.  131  Pa.  ^t.  476.  10  Atl.  300 


643  SEPAHATE    ESTATE   OF    MARIUED    WOMEX.  §  1109 

the  rules  coueeriiiiig  it  became  an  established  part  of  the  doctrine 
concerning  the  wife's  equitable  separate  estate/ 

§  1108.  What  Words  are  Sufficient. — In  order  to  constitute  an 
ett'ective  restraint,  the  intention  must  be  clear  from  the  expres- 
sions used  that  the  wife  was  to  be  restrained  from  anticipation. 
If  such  intention  is  shown,  no  particular  form  of  words  is  requisite, 
nor  are  express  negative  words  essential.^  In  the  American  states 
which  compose  the  first  class  heretofore  described,  the  same  gen- 
eral rule  would  necessarily  be  adopted.  In  the  states  forming  the 
second  class,  however,  a  nuiterial  modification  of  this  rule  must  be 
made.  Since  the  jus  disponendi  in  those  states  is  derived  from 
the  affirmative  provisions  of  the  instrument  creating  the  separate 
pi'operty,  the  restraint  ui)on  the  power  of  disposing  or  binding  the 
property  would  be  inferred  from  the  whole  tenor  of  the  instru- 
Dient,  or  from  the  absence  of  permissive  language."  The  subject- 
matter  on  which  the  restraining  clause  is  to  operate  may  be  any 
kind  of  property^,  real  or  personal,  and  any  estate  therein,  absolute, 
for  life,  or  for  years." 

§  1109.  Effect  of  the  Restraint. — The  restraint,^  if  valid,  pre- 
\ent.s  the  wife  from  doing  any  act,  during  her  coverture,  which 
"\\  ould  deprive  her  of  her  interest  in  the  separate  property ;  she  can 
neither  alien  nor  charge  the  corpus  nor  future  income.^  With  re- 
gard to  the  time  during  which  they  operate,  the  separate  use  itself 
and  the  restraint  upon  anticipation  stand  upon  exactly  the  same 
principle,  and  are  governed  by  exactly  the  same  rules.  Property 
may  be  given  to  a  woman  to  her  sole  and  separate  use  while  she  is 
single,  and  not  in  contemplation  of  any  particular  intended  mar- 
riage, and  the  gift  is  valid  in  that  form;-  but  the  peculiar  qualities 
of  the  separate  estate  do  not,  and  cannot,  exist  until  she  is  married. 
In  like  manner,  and  for  the  same  reason,  since  they  are  inseparable, 
the  restraint  upon  anticipation  or  upon  the  jus  disponendi  can 
only  operate  during  coverture.  If,  therefore,  she  is  single  at  the 
time  of  the  gift  of  a  separate  estate  with  restraint  upon  anticipa- 
tion, or  if  she  becomes  so  afterwards,  during  the  time  when  she 
is  single  or  is  a  widow,  she  may  alienate,  dispose  of,  or  charge 
the  property,  entirely  irrespective  of  the  clause  of  restraint.  Her 
power  over  the  property  will  then  depend,  not  in  the  least  upon 
the  special  eJause  of  restraint,  but  upon  the  general  nature  of  her 

^YoY  the  history  aiul   original   form   of  the   restraint   cI.ium',   see  Hood-Barrs 
V.  Heriot   (189G),  A.  C.  174,  speeches  of  Lord  Hersehell  and  Lord  Macnaghten. 
'Radford  v.  Carwile,  L3  W.  Va.  .572. 
^Nix  V.   Bradley.   0  Rich.   Eq.   4.'^. 
M^ajrgett  V.  :\Ipux.  1   TMiill.  Ch.  G27. 
M'l'ke  V.  Fitzcribbon.  L.  R.  17  Ch.  Div.  4,54. 
*Tullet  V.  Armstrong,  4  Mylne  &  C.  377. 


§  1110  EQUITY  JURISPRUDENCE.  G44 

estate  in  it,  and  of  the  trust  upon  which  it  is  held.^  It  is  also 
settled  that  unless  clearly  restricted  to  one  coverture,  the  clause 
iu  restraint  of  anticipation  annexed  to  a  gift  of  property  to  the 
separate  use  of  a  woman  will  operate  upon  all  her  covertures  and  be 
ett'eetual,  unless  it  be  destroyed  by  her  own  act  in  alienating  or 
dealing  with  the  property  while  she  is  discovert, — that  is,  before 
marriage  or  during  widowhood.*  The  clause  in  restraint,  however, 
like  the  trust  itself  for  separate  use,  may  be  confined  in  its  opera- 
tion to  a  particular  coverture,  but  the  words  must  be  clear  and 
unequivocal.'^'  The  same  rules  have  generally,  though  not  uni- 
formly, been  adopted  by  the  courts  of  this  country.  It  follows, 
as  a  necessary  consequence  from  the  foregoing  conclusions,  that 
where  property  has  been  given  to  the  sole  and  separate  use  of  a 
woman,  even  coupled  with  a  restraint  against  alienation,  she  may, 
before  her  marriage  or  during  her  widowhood,  terminate  both 
the  separate  use  and  the  restraint,  either  by  disposing  of  the  prop- 
erty and  investing  its  proceeds  in  a  new  form,  or  by  settling  the 
property  in  a  different  manner  at  her  marriage.*^  A  court  of 
e(}uity,  however,  has  no  power  to  disregard  the  restraint,  nor 
to  release  a  married  woman  from  its  operation,  however  beneficial 
that   course   might   be   in    any   particular   case.'' 

§  1110.  End  of  the  Separate  Estate.-^Its  Devolution  on  the 
Wife's  Death.— The  trust  for  the  wife's  separate  use,  like  the 
restraint  upon  alienation,  may  be  terminated  before  the  coverture 
or  after  it  ends,  by  her  dealings  with  the  property,  as  by  dis- 
posing of  it,  and  investing  the  proceeds  in  other  property.^  The 
adultery  of  the  wife  will  not,  in  the  absence  of  statute,  affect  her 
rights  to  property  settled  to  her  own  separate  use.-  When  a  mar- 
ried woman  holding  a  separate  estate  dies  without  making  a  dis- 
position by  will,  it  will  devolve,  subject  to  the  future  limitations, 
if  any,  in  the  settlement,  in  the  same  manner  and  to  the  same 
successors  as  her  legal  estates  and  her  other  equitable  estates.  In 
the  absence  of  statutory  regulations,  the  real  estate  in  fee  descends 
to  her  heirs,  subject  to  the  husband's  life  interest  as  tenant  by 
the  curtesy;  the  cash,  personal  chattels,  and  chattels  real  will  be- 
long to  the  husband  juri  mariti;  while  the  things  in  action  wili 
devolve  upon  him  as  her  administrator." 

'  Tullet  V.  Armstrong,  1  Beav.  1,  22,  4  Mylne  &  C.  377,  392. 
*Tullet  V,  Armstrong,  4  Mylne  &  C.  377,  1  Beav.  1. 
Mn  re  Gaffe,  1  Macn.  &  G.  541,  545. 
«  Campbell  v.  Bainbridge,  L.  R.  6  Eq.  269. 

'  Robinson  v.  Wheelwright,  21  Beav.  214,  G  De  Gex,  :M.  &  G.  535. 
'  8ee   last  precetiing  paragraph,   and  cases   cited   in   note. 
-  Seagrave  v.  fSeagrave,  13  Ves.  439,  443. 

■■'Appleton  V.  Bowley,  L.  R.  8  Eq.  139,  Ames  Tnisis  .181:  iMeaeham  v. 
Bunting,  150  111.  586,  41  N.  E.  175,  47  Am.  St.  Rep.  239,  28  L.  R.  A.  CIS. 


<'.45  wife's   KQCITY    TO   A    .SETTLK.M  K\  T.  v;    1  1  i-1 

§  1113.  Settlement  or  Conveyance  by  the  Wife  in  Fraud  of  the 
Marriage. — By  inan-iayc  at  tlie  couimoii  law  the  husband  acquires 
large  interests  in  the  wife's  property.  Any  alienation  by  her  of 
her  property  in  fraud  of  her  husband's  marital  rights  would  there- 
fore be  set  aside  by  a  court  of  equity  as  null  and  void.  In  accord 
ance  with  the  common-law  theor}'  of  marriage,  and  while  that 
tJieory  j^et  prevailed  unmodified  by  statute,  the  doctrine  on  this 
subject  was  established  by  the  English  courts  as  follows:^  "A  con- 
ve3^ance  by  a  wife,  whatsoever  may  be  the  circumstances,  and  even 
the  moment  before  the  marriage,  is  prima  facie  good,  and  becomes 
bad  only  upon  the  imputation  of  fraud.  If  a  woman,  during  the 
course  of  a  treaty  of  marriage  with  her,  makes,  without  notice  to  the 
intended  husband,  a  conversance  of  any  part  of  her  property,  it 
.should  be  set  aside,  though  good  prima  facie,  because  affected  wnth 
that  fraud."  The  rules  thus  established  by  the  English  court  of 
chancery  have  been  repeatedly  approved  and  adopted  in  various 
states  of  this  country,  where  the  common-law  theory  concerning 
the  effect  of  a  marriage  still  prevailed.-  The  extensive  and  radical 
changes  made  by  modern  legislation  have  rendered  these  rides 
obsolete  in  a  majority  of  the  states.^ 


SECTION  II. 
THE    WIFE'S    EQUITY    TO    A    SETTLEMENT. 

ANALYSIS. 

§  1114.  [§  389].     General  nature. 

§  1115.  Extent    of    the    wife's    equity;     to    what    property    and    against 

what    persons. 

§  lllG.  When    the    equity    does    not    arise. 

§  1117.  Amount   of    the    settlement. 

§  1118.  Forir,    of    the    settlement. 

§  1119.  INlaintenance  of  wife. 

§  1120.  Alimony. 

§  1114.  General  Nature. — f§  389.  By  the  common  law  the  hus- 
band became  absolute  owner  of  all  the  wife's  moneys,  goods,  and 
chattels,  and  things  in  action  which  he  had  reduced  to  possession, 
and  estates  for  years,  and  acquired  a  life  interest  in  all  her  free- 
hold estates,  and  was  entitled  to  their  rents  and  profits.  The  only 
mode  of  securing  any  of  her  property  to  her  own  use  during  the 

^  Countess  of  Strathmore  v.  Bowes,  2  Brown  Ch.  .34.5,  1  Ves.  22,  1  Lead.  Ca&. 
Eq.   005,   011-617,  018-623. 

==  Freeman   v.   Hartman,   45    111.   57;     02   Am.   Dec.   193. 
^See   ante,    §    109!),    note. 


§  1114:  EQUITY  jn!isi'r;ri)i:xcE.  640 

marriage  was  by  a  marriage  settlement.  Courts  of  equity  have, 
from  a  very  early  period,  provided  the  wife  a  remedy  against 
these  harsh  doctrines  of  the  common  law,  where  no  i^roper  set- 
tlement had  already  been  made  by  the  parties,  by  giving  her  a 
right  to  a  provision  out  of  her  own  property,  where  the  circum- 
stances were  such  that  the  principle,  He  who  seeks  ecjuity  must  do 
e(]uity,  could  be  applied;  and  this  right  is  known  as  her  "equity  to 
a  settlement."]  The  Avife's  equity  to  a  settlement  does  not  depend  up- 
on her  right  of  property  in  the  subject-nuitter,  for  it  must  be  enforced 
for  the  benefit  of  herself  and  her  children,  and  the  amount  is 
wholly  discretionary  with  the  court;  it  is  an  obligation  which  the 
court  fastens,  not  upon  the  property,  hut  upon  the  right  to  receire 
if, — the  right  of  her  husband  and  those  claiming  under  him  to  re- 
ceive it,  as  well  as  that  of  the  wife.^  The  doctrine  was  first  ap- 
plied to  cases  only  where  the  husband  resorted  to  the  jurisdiction 
of  equity  in  order  to  enforce  his  jus  mariti  and  reach  assets  be- 
longing to  his  wife.  Having  been  established  in  this  application, 
it  was  soon  extended  to  cases  where  the  general  assignees  in  bank- 
ruptcy or  insolvenc}'  of  the  husband  sought  the  aid  of  equity  in 
reaching  property  of  the  Avife ;  the  court  imposed  on  them  the. 
same  conditions  which  it  would  impose  on  the  husband  himself. - 
The  next  step  was  soon  taken,  and  the  doctrine  was  applied  to  par- 
ticular assignees  of  the  husband  for  a  valuable  consideration,  when- 
ever they  attempted  to  enforce  their  assignments  b}^  a  proceeding 
in  equity."  In  these  early  stages  of  the  doctrine,  the  court  was 
always  set  in  motion  by  the  husband  or  his  assignees,  and  it  was 
formerly  supposed  that  this  was  essential ;  it  is  now  settled,  how- 
ever, tliat  the  wife  may  herself  originate  the  proceeding,  and  may 
maintain  a  suit  for  a  settlement.'*  A  court  of  equity  will  not,  there- 
fore, interfere  with  the  purely  legal  rights  of  the  husband,  or  of  his 
assignees,  which  can  be  completely  enforced  at  law,  without  the 
aid  of  equity,  and  where  the  property  is  not  already  in  the  custody 
or  under  the  immediate  control  of  the  court  of  equity.  The  general 
doctrine  may  be  formulated  as  follows:  Where  the  husband,  or 
some  person  claiming  under  him,  is  suing  in  equity  to  reach  the 
wife's  propert.y;  and  where  the  property  is  already  within  the 
reach  of  the  court, — as  where  it  is  vested  in  trustees,  or  has  been 
})aid  into  court,  or  is  in  any  other  situation  which  ])rings  it  under 
the  control  of  the  court. — the  court  of  equity  will  not   grant  the 

'  Osborn  v.  Morgan.  '^  \\;\rv.  432.  434. 
-Oswell  V.  rrohert.  2  \'cs.  680.  082. 
'Macaulay  v.  Philips,  4  Vos.  ].5,  19. 

*Lady   Elibank   v.   Montolicu,   5   Vcs.   737;     Sturgis   v.    Champneys,   5   Mylne 
&  C.  97;     Salter  v.  Salter,  80  Ga.   178,  4   S.   E.   31)1,    12   Am.   St.   Kep.   24!). 


(^47  uri'K's  F.c^riTY   ro  a  skttlkmf.nt.  §  1111) 

relief  in  the  first  instance,  nor  permit  tiie  property  to  be  removed 
out  of  its  jurisdiction  and  control  in  the  second,  until  an  ad- 
equate provision  is  made  for  the  wife,  unless  special  circumstances 
exist  which  defeat  her  right:  and  under  a  like  condition  of  the  prop- 
erty,   the    wife    may   herself    institute    a    suit    and    ol)tain    the    relief. "' 

§1115.  Extent  of  the  Wife's  Equity— To  What  Property  and 
against  What  Persons. — The  rule  is  fundamental  that  the  wife's 
e(|uity  does  not  exist  where  the  husband  is  only  exercising  liis 
legal  right  (»ver  the  personalty  of  his  wife's  estate  which  vested 
in  him  by  the  marriage,  or  over  his  own  joint  life  interest  in  her 
realty.^  It  only  arises  where  the  wife's  interest  being  equital)le. 
the  property  itself  is  originally  under  the  control  and  jurisdiction 
of  equity,  or  being  legal,  the  husband  or  his  assignees  resort  to 
courts  of  equity  in  order  to  enforce,  protect,  or  perfect  their 
claims.  ... 

§  1116.  When  the  Equity  does  not  Arise. — Although  the  prop- 
erty may  he  such  that,  under  ordinary  circuiiistances,  the  equity 
would  attach,  still  the  wife's  own  acts,  conduct,  or  situation  may 
prevent  it  from  arising,  or  the  husband's  mode  of  dealing  with 
the  property  may  defeat  it.  The  wife's  equity  to  a  seitlemcnt 
out  of  her  things  in  action  does  not  embrace  those  which  the  hus- 
band has  fully  "re<;1uced  into  his  own  possession."^     .     .     . 

§  1119.  Maintenance. — The  power  of  courts  of  equity  to  compel 
a  provision  to  be  made  for  the  maintenance  of  a  married  woman 
by  lier  husband  is  somewhat  a'^^.logous  to  that  of  enforcing  her 
e(juity  to  a  settlement,  but  still  not  identical;  it  is  only  exercised 
Tuider  special  circumstances  of  her  actual  need,  and  then  without 
regard  to  any  equity  \o  a  settlement  on  her  part;  it  is  confined 
to  her  property,  and  does  not  extend  to  the  property  originally 
and  exclusively  belonging  to  the  husband.  If  a  husband  has  de- 
sei-ted  his  wife,  leaving  her  unprovided  for,  a  court  of  equity  will 
order  her  maintenance  out  of  her  fortune,  though  neither  settled 
nor  agreed  to  be  settled, — that  is.  although  the  husband's  com- 
mon-law rights  over   it   renuiin   unrestricted.^      When   the   husband 

=  Lady  Elibank  v.  Montolieu.  1  Lead  Cas.  Eq.  623,  639-669,  670-679;  Clon 
V.  Fisher,  6  Johns.  Ch.  33.  10  Am.  Deo.  310;  Duval  v.  Fanners'  Bank,  4 
Gill  &  J.  (ild.)  282,  23  Am.  Dec.  358:  Wiles  v.  Wiles,  3  Md.  1,  56  Am.  Doe. 
733. 

The  modem  lejjislation  in  so  large  a  portion  of  the  American  states,  de- 
stroring  the  husband's  interest  in  his  wife's  projxM'ty.  and  making  it  her  own 
.separate  legal  estate,  has.  of  ooursp,  taken  away  liic  very  foundation  for 
this  equitable  doctrine,  and  it   has  finis  boon  roiidorod  virtually  obsolete. 

MVard  V.  Ward,  L.  R.  14  Ch.  Div.  50(1. 

^This  section  is  cited  to  this  cHVcl  in  Hart  v.  ]>oete,  104  Mo.  315,  337,  15 
S.    W.    976. 

*Duniond    v.    Masree.    4    .Tohns.    Ch.    318.    322. 


§  1120  EQUITY  JUKISPKUDENCE.  648 

has  deserted  his  wife,  or  has  by  his  cruelty  compelled  her  to  leave 
him,  the  court  will  order  her  maintenance  out  of  the  interest  of 
her  fortune,  even  though,  by  the  marriage  settlement,  it  was 
payable  to  him  for  life.-  There  is  no  jurisdiction  in  courts  of  equity 
to  compel  a  husband  generally  to  maintain  his  wife  out  of  his 
own  property  or  by  his  own  labor.  Such  power,  if  it  existed  at  all, 
l)elonged  to  the  ecclesiastical  courts,  or  was  regulated  by  statute. 
§  1120.  Alimony. — The  subject  of  maintenance  naturally  sug- 
gests that  of  alimony,  although  the  two  have  really  nothing  in 
common,  except  their  being  granted  for  the  benefit  of  a  wife.  In 
its  proper  and  only  true  sense,  "alimony"  is  not  a  separate  estate, 
nor  is  it  a  provision  for  maintenance  generally,  as  described  in 
the  preceding  paragraph.  It  is  an  incident  of  divorce;  it  is  merely 
a  provision  for  maintenance  from  day  to  day,  decreed  by  a  com- 
petent court  to  a  wiie  legally  separated  from  her  husband,  either 
by  a  divorce  a  mensa  et  thoro  or  ex  vinculis.  Under  the  judicial 
system  originally  prevailing  in  England,  it  was  granted  and  reg- 
ulated solely  by  the  ecclesiastical  courts,  which  had  exclusive 
jurisdiction  of  divorce.^  It  is  very  clear  that  the  original  jurisdic- 
tion of  equity  did  not  include  the  power  to  decree  alimony  as  an 
incident  of  divorce;  nor  is  there  any  jurisdiction  to  grant  ali- 
mony to  a  wife  as  a  provision  to  be  made  by  her  husband  for  her 
maintenance,  unconnected  with  proceedings  for  a  divorce.^  The 
American  courts  have  generally  conformed  to  this  view,  and  have 
denied  the  existence  of  any  jurisdiction  to  award  alimony  as  a 
provision  for  the  maintenance  of  a  wife  by  her  husband."  In  sev- 
eral states,  however,  such  a  power  has  ])een  asserted  and  exercised 
as   belonging   to    the    general   jurisdiction    of   equity.* 

-  Eedes    v.    Eedes,     1 1     Sim.    5(59. 

'  In  many  of  the  states,  jurisdiction  over  divoree  has  been  given  by  statute 
to  the  courts  of  equity,  and  the  suit  for  a  divorce  is  treated  as  a  suit  in  equity. 
The  jurisdiction  to  grant  alimony  as  an  incident  of  divorce  niaj',  perhaps, 
have  been  sometimes  confounded  witli  tlie  general  jurisdiction  of  equity.  This 
may  explain  some  American  decisions  concerning  alimony  cited  in  a  subse- 
quent note. 

=  Vandergueht  v.  De  Blaquiere,  8  8im.  .315,  5  itylne  &  C.  229. 

=*  Parsons   v.  -Parsons,   9   N.   H.   309,   32   Am.   Dec.   302. 

Mn  re  Popejoy,  26  Colo.  .32,  ."d-t  Pac.  1083,  77  Ajn.  St.  T^ep.  222,  fat  pp.  224- 
.■));  Kdgerton  v.  Edgerton,  12  Mont.  122,  29  Pac.  9GG,  33  Am.  St.  Rep.  557, 
16    L.    R.    A.   94. 


019  CONTIJACT.S    OF    MAUUIKD    WOMKN.  §  11  v  I 


SECTION  III. 
THE   CONTRACTS  OF   jNIARRIED   WOMEN. 

ANALYSIS. 

I  1121.  The    general    doctrine. 

§   1122.  Rationale    of    the    doctrine. 

S    112;!.  Extent     of     tlie     liability. 

S    1124.  For    what    contracts    iier    separate    estate    is    liable. 

S    112.5.  The    same;     the    American    doctrine. 

S    112G.  To    what    contracts    the    American    doctrine    applies. 

§  1121,     The  General  Doctrine. — At  the  common  law  the  contracts 
of  married  women  ar(;  al)solutely  void.    Equity  has  never  attempted 
to  invade  this  fundamental  policy  of  the  law.  it  has  never  clothed 
married  women  with   the   capacity  to   bind   themselves   personally 
by   contract.     Their  contracts,   as   recognized  by   equity,   are   only 
contracts   sub    modo ;    the   indebtedness    Avhich   they    create    is    not 
a  legal  indebtedness,  but  only  an  equitable  liability,  enforced  in  a 
]>eculiar  manner  by   courts   of   equity.     After  it   was   settled   that 
a  mairied  woman  might  hold  property  as  a  separate  estate  to  her 
own  separate  use,  free  from  the  claims  and  interest  of  her  husband, 
for  some  time  the  common-law  incapacity  of  contracting  was  still 
applied   to   her.     The   glaring  injustice   of  this   condition   soon   l)e- 
came   apparent.      To   permit   a  wife   to   hold   separate   property   to 
her  oAvn  use.  to  enjoy  its  benefits,  to  deal  with  it  in  many  respects 
as   though    she    were    a    feme    sole,    and    thus    to    be    clothed    with 
n.a ny    indicia    of    complete    ownership,    but    at   the    same    time    to 
withhold  from  lier  creditors  all  claim  against  it  or  against  her, 
Avas   in  the  highest  degree  inecjuitable.     The  wife   might,   by  her 
own  act,  directly  dispose  of  her  separate  estate,  and  for  the  same 
reasons  she  ought  to  be  able  to  render  it  liable  for  her  obligations. 
Infiueneed  by  these  considerations,  the  courts  of  equity  gradually, 
by  progressive  steps,  introduced  and  developed  the  doctrine,  tliat 
although  a  married  woman  can  create  no  personal  liability  against 
herself,  her  separate  estate  may  be  liable  for  her  contracts  made 
with  reference  to  it.     Tier  contracts  thus  become  equitable  obliga- 
tions, and  may  be  enforced  in  equity  against  her  separate  estate. 
No    other    doctrine    of    equity    jurisprudence    better    Illustrates    its 
■wonderful  freedom  and  power  in  modifying  legal  dogmas.     Without 
attempting  to  trace  the  progress  of  the  general   doctrine  through 
its  whole  course  of  development  as  it  is  now  settled  by  the  English 
courts,  it  is  correctly  formulated  as  follows:    "If  a  married  woman, 
having  separate  property,  enters  into  an  engagement,  wdiich  if  she 


§  1123  EQUITY    JLKISPKUDENCE.  050' 

■was  a  feme  sole  would  constitute  a  persoual  obligation  against  hei% 
and  in  entering  into  such  engagement  she  purports  to  contract, 
not  for  her  husband  |  i.  e.,  not  on  behalf  of  her  husband  as  his 
agent],  but  for  herself,  and  on  the  credit  of  her  separate  estate, 
and  it  was  so  intended  by  her,  and  so  understood  by  the  person 
with  whom  she  is  contracting,  that  constitutes  an  obligation  for 
which  the  person  with  whom  she  contracts  has  the  right  to  make 
her  separate  estate  liable."^ 

§  1122.  Rationale  of  the  Doctrine. — It  was  once  supposed  that 
the  doctrine  was  properly  explaiiied  by  regarding  the  wife's  con- 
tract as  in  reality  the  execution  of  her  power  of  appointment,  so 
that  the  contract,  being  an  appointment,  created  an  equitable 
charge  or  lien  in  the  nature  of  a  disposition  upon  her  separate 
estate.  This  theory  has  been  abandoned  as  utterly  untenable.^ 
The  true  rationale  of  the  doctrine  is,  that  the  liability  of  a  wife's 
separate  property  for  her  engagements  is  a  mere  equitable  incident 
of  her  separate  estate,  which  is  itself  a  creature  of  equity.  In  the 
language  of  Lord  Justice  James:  "In  equity,  the  liability'-  is  to 
have  her  separate  estate  taken  from  her  for  the  benefit  of  a  per- 
son with  whom  she  has  contracted  on  the  faith  of  it.  It  is  a 
special  equitable  remedy,  arising  out  of  a  special  equitable  right. '^ 
In  the  pointed  language  of  Lord  Justice  Cotton:  "It  is  not  the 
woman,  as  a  woman,  who  becomes  a  debtor,  but  her  engagement 
has  made  that  particular  part  of  her  property  which  is  settled 
to  her  separate  use  a  dehtor;  and  liable  to  satisfy  the  engagement." 
The  same  theory  is  more  fully  expressed  in  the  words  of  Lord  Cot- 
tenham :  "The  view  taken  of  the  matter  by  Lord  Thurlow  In 
Ilulme  V.  Tenant  is  correct.  According  to  that  view,  the  separate 
property  of  a  married  woman  being  a  creature  of  equity,  it  fol- 
lows that  if  she  has  a  power  to  deal  with  it,  she  has  the  other  power 
incident  to  property  in  general,  namely,  the  power  of  contracting 
debts  to  be  paid  out  of  it ;  and  inasmuch  as  her  creditors  have  not 
the  means  at  law  of  compelling  payment  of  those  debts,  a  court 
of  equity  takes  upon  itself  to  give  effect  to  them,  not  as  personal 
liabilities,  but  by  laying  hold  of  the  separate  property  as  the  only 
means  by  which  they  can  be  satisfied.^ 

§  1123.  Extent  of  the  Liability. — The  restraint  upon  anticipa- 
tion, when  inserted  in  the  instrument  creating  the  separate  estate, 
applies  to  the  wife's  contracts  as  well  as  to  her  alienations.     The 

':Mrs.  Malthewiiian's  Case,  L.  R.  3  Eq.  781,  787   (per  Kindersley,  V.  C). 

'  Pike  V.  Fitzgibbon,  L.  R.  17  Ch.  Div.  454,  p.  4G1 ;  Shattotk  v.  ^Jliattock, 
L.  R.  2  Eq.  182,  per  Lord  Roniilly,  M.  R.;  .Johnson  v.  Gallagher,  3  De  Gex, 
F.   &  J.   49.,    (at  p.   519). 

^  Owens  V.  Dickinson,  Craig  &  P.  48,  54,  per  Lord  Cottenhaiu. 


651  COXTltACTS   OF    MAUKJKD    WOMEN.  §  1124 

separate  property,  therefore,  M'hieli  she  liolds  subject  to  tlie  re- 
straint upon  alienation  or  anticipation  is  not  liable  for  any  con- 
tracts or  engagements  which  she  can  make/  Furthermore,  it  is 
now  settled  that  her  contracts  can  only  be  enforced  against  the 
separate  estate,  free  from  such  restraint,  which  she  held  at  the 
time  of  entering-  into  the  engagement,  or  so  much  thereof  as  re- 
mains in  her  ownership)  at  the  time  when  the  judgment  is  rendered, 
and  not  against  separate  estate  which  she  acquired  after  the  time 
of  making  the  engagement.-  It  is  also  now  settled,  contrary  to 
the  view  which  formerly  prevailed,  that  when  the  wife  has  a 
life  interest  only  to  her  own  separate  use,  with  power  of  appoint- 
ment over  the  corpus,  either  by  deed  or  by  will,  such  separate  prop- 
erty is  liable  for  her  contracts,  as  well  as  when  her  interest  is  ab- 
solute." With  regard  to  the  remedy,  of  course  no  personal  decree 
ran  be  made  against  a  married  woman.*  So  far  as  the  separate 
estate  is  personalty,  its  corpus  may  be  reached  by  the  decree,  and 
applied  in  discharge  of  the  wife's  engagement;  so  far  as  it  is 
land,  the  remedy  was  confined  by  the  earlier  cases  to  the  r<;nts 
and  profits,  unless  the  contract  enforced  be  a  specialt}^;  and  this 
is  the  ordinary  form  of  the  decree  in  England."' 

§  1124.  For  What  Contracts  her  Separate  Estate  is  Liable. — 
^Although  the  fundamental  doctrine  of  liability  i,  that  the  contract 
purported  or  was  intended  to  be  made  on  the  credit  of  the  sep- 
arate estate,  yet  this  intention  need  not  be  expressed  in  the  terms 
of  the  contract  itself.  The  rule  is  firmly  settled,  and  may  be  re- 
garded as  the  peculiar  feature  of  the  English  law  on  this  subject, 
which  distinguishes  it  from  that  prevailing  in  many  of  our  states, 
that  the  intent  to  contract  on  the  credit  of  the  separate  estate  is 
conclusiveh'  inferred  from  the  very  form  and  nature  of  manj'  kinds 
of  engagements,  including  at  least  all  those  in  the  form  of  Avritten 
instruments.  It  is  thus  settled  beyond  dispute,  by  the  English 
decisions,  that  the  wife's  separate  estate  is  liable  for  her  contracts 
under  seal  ;^  for  her  bills  of  exchange  and  promissory  notes;-  and 
for  all  her  written  agreements.^  Finally,  after  some  fiuctuation  in 
the  decisions,  the  liability  is  extended  to  her  ordinary  general  verb- 
al engagements  and  implied  promises,  if  it  appear  that  they  were 
made  with  reference  to  and  on  the  faith  and  credit  of  her  separate 

Tike  V.  Fitzoi])l)on.  L.   K.    17   Ch.   Div.   454,  459,   4G2,   463. 

■'  Crockett  v.  Doriot,  85  Va.  240,  3  S.  E.  128. 

UJodfrey  v.   Haiben,   L.   R.   13   Ch.  Div.   216.     See  ante,   §  1106. 

*  Francis    v.    Wigzell,    1    Madd.    258,    2G4. 

niulme  V.  Tenant,   1   Brown   Cli.    Ifi,  per  Lord  Tluirlow. 

'Hulnie    V.    Tenant.    1    Brown    Cli.    U). 

^Davies   v.   Jenkins.   L.    W.    r.    Cli.    Div.    728. 

'Murrav   v.   Barlee,   ?,   Mylne   &   K.   209. 


§  11,26  EQUITY    JLIilSPRUDEXCK.  G53 

property;  and  whether  so  made,  will  be  determined  by  a  consider- 
ation of  all  the  surrounding  circumstances.^ 

§  1125.  The  American  Doctrine. — The  general  doctrine  estab- 
lished by  the  English  court  of  chancery,  that, the  wife's  separate 
estate  is  liable  for  her  engagements  which  purport  to  be  with 
reference  to  it,  and  are  intended  to  be  made  upon  its  faith  and 
credit,  has  been  accepted  in  all  the  American  states  where  the 
.system  of  equity  jurisprudence  prevails.  The  divergence  in  many 
of  the  states  from  the  conclusions  reached  by  the  English  courts 
relates,  not  to  this  general  doctrine,  but  to  its  applications;  it  is 
wholly  confined  to  the  cjuestion  what  kinds  and  forms  of  contracts 
do  thus  purpoi't  to  be  entered  into  with  reference  to  the  separate 
estate,  and  in-c  intended  to  be  made  on  its  faith  and  credit?  As 
described  in  a  i)receding  paragraph,  the  equitable  jurisdiction  in 
enforcing  the  contracts  of  married  women  has  been  greatly  en- 
larged by  modern  legislation  in  this  country.  Wherever  the  stat- 
utes have  declared  that  the  wife's  property,  real  and  personal, 
belonging  to  her  in  her  own  right,  and  l)y  a  legal  title,  shall  con- 
stitute her  legal  or  statutory  separate  estate,  but  have  not  further 
provided  that  her  contracts  shall  create  personal  liabilities  against 
her  to  be  "enforced  by  ordinarj^  legal  actions  and  judgments,  it 
is  settled  that  her  contracts  shall  be  enforced  in  ec^uity  against 
this  legal  separate  estate  in  the  same  manner  and  subject  to  the 
same  rules  as  against  an  equitable  separate  estate.^ 

§  1126.  To  What  Contracts  the  American  Doctrine  Applies. — 
It  should  be  observed  that,  under  the  New  York  tyi>e  of  legislation 
concerning  express  trusts  in  land,  where  the  express  trust  which 
is  permitted  for  the  benefit  of  a  wife  is  created,  the  beneficiary 
talvcs  no  estate,  has  no  power  of  disposition,  and,  as  a  consequence, 
can  not  charge  her  interest  by  contract,  however  express.  With 
regard  to  the  ai)plications  of  the  general  doctrine  thi-re  is  a  great 
variety  of  opinion  and  wide  divergence  of  decision  among  the 
American  cases.  These  cases,  however,  when  classified  according 
to  broad  lines  of  division,  will  be  found  to  fall  under  three  general 
types.  Virsl  hj])r:  This  includes  a  comparatively  few  states,  in 
which  the  wife  has  no  poAver  of  disposition  over  her  separate  es- 
tate, except  such  as  is  expressly  or  by  necessity  given  in  the  in- 
strument creating  it.  Her  separate  estate  is  liable  for  those  con- 
tracts Avhich  are  made  for  its  benefit,  and  for  those  wdiich  benefit 
the  wife,  if  expressly  and  in  terms  charged  upon  it  or  made  upon 
its  ci'cdit,  but  is  not,  in  general,  liable  for  her  contracts  of  surety- 

^  Hodgson   V.   Williamson.   L.    R.    15   f'h.    Ti'w.    S7. 

'Yale  V.  Dederer.  IS  N.  Y.  2P)."i,  72  Am.  Dof.  fiO?,,  22  X.  Y,  450,  78  Am.  Dec. 
210,   OS   N.  Y.   P.2n.   and  seo  post.   §    1120.   note. 


G53  CONTRACTS   OF   MARRIED   WOMEN.  §  ll'iG 

ship  made  entirely  i'or  the  benelit  of  another.'  In  order,  however, 
that  any  contract  may  be  thus  enforceable,  it  must  be  within  tlic 
express  or  necessarily  implied  permission  of  the  instrument  creat- 
ing the  estate.  Second  type:  In  the  states  belonging  to  this  type, 
with  perhaps  a  very  few  exceptions,  the  English  doctrine  concern- 
ing the  wife's  power  of  alienation  is  substantially  adopted.  The 
peculiar  feature  which  distinguishes  the  type  is,  that  the  intent 
to  contract  upon  the  faith  and  credit  of  the  separate  estate,  and 
tluis  to  render  it  liable,  must  affirmatively  and  expressly  appear, 
and  will  not  be  implied  or  presumed  from  any  mere  external  form 
of  the  engagement.  The  separate  property  is  liable  for  all  con- 
tracts of  the  wife  made  directly  for  its  benefit,  for  all  her  contracts 
made  for  her  own  benefit,  if  expressly  and  in  terms  purporting 
1o  be  on  its  faith  and  credit,  and  for  her  contracts  of  suretyship 
for  the  benefit  of  another,  if  the  intention  to  charge  the  separate 
])roperty  thereby  is  clearly  and  unequivocally  expressed.-  Tliird 
type:  In  the  states  of  this  type  the  conclusions  reached  b^^  the 
English  courts  have  been  more  closely  followed.  Its  distinguishing 
feature  is,  that  the  intent  to  deal  on  the  credit  of  the  separate  estate 
need  not  be  expressed,  but  will  -be  inferred  from  the  nature  or 
form  of  the  contract.  The  wife's  separate  estate  is  liable  for  all 
her  contracts  entered  into  for  its  ow^n  benefit,  and  for  all  her 
written  contracts  made  for  her  own  benefit,  such  as  her  bonds, 
notes,  bills  of  exchange,  and  the  like,  even  though  no  intention  to 
bind  it  is  expressed  in  their  very  terms.  In  many  and  probabl}^ 
most  of  the  states  belonging  to  this  class,  the  wife's  contracts  of 
suretyship  must  be  expressly  charged  upon  her  separate  property, 
in  order  to  bind  it,  and  her  general  verbal  engagements  must  lilie- 
wise  appear  in  some  affirmative  manner  to  be  made  on  its  faith 
and  credit;  wath  regard  to  such  contracts  no  intent  is  generally 
presumed.^  ...  It  has  been  uniformly  held  that  the  wife's 
equitable  separate  estate,  and  the  equitable  rules  which  govern 
it,  do  not  come  within  the  purview  of  the  recent  legislation  con- 
cerning married  women's  property,  and  are  not  affected  by  its 
provisions.  These  modern  statutes  giving  to  the  wife  a  legal  sep- 
arate estate  have,  in  combination  wath  the  equitable  doctrine  con- 
cerning married  wonien's  contracts,  created  a  very  anomalous  con- 
dition in  the  jni'isprudcnce  of  most  of  the  states, — an  extension  of 

'  \\ilhnd  Y.  Easthan,  15  (-ray,  328.  77  Am.  Dec.  366. 

-  If  the  contract  is  in  writinij.  ami  is  not  diiectly  for  tlie  benefit  of  liie 
separate  estate,  the  intention  to  make  it  liable  should  appear  in  the  writing 
itself:  Yale  v.  Dederer,  tS  X.  Y.  265,  72  Am.  Dec.  503,  22  N.  Y.  450,  456, 
78   Am.   Dec.   210,   68   N".    Y.   329. 

*  Bradford  v.  Creenwaj^   17  Ala.  797,  52  Am.  Dec.  203. 


§  112G  EQUITY  JUI^SPKUDE^'CE.  654: 

a  jurisdiction  most  distinctively  equitable  to  an  ordinary  legal 
ownership  of  property.  When  the  common-law  dogmas  were  to 
be  invaded,  wiien  the  wife's  legal  estate  and  title  were  to  be  re- 
moved from  all  interest  and  control  of  her  husband,  and  she  was 
to  be  permitted  to  make  contracts  based  upon  its  ownership,  the 
better  policj''  would  have  been  to  abrogate  her  common-law  inca- 
pacities entirely,  and  to  render  her  contracts  enforceable  against 
her  as  though  she  Avere  single  by  legal  actions  and  pecuniary  re- 
coveries of  judgment.  In  a  few  states  the  legislatures  have  carried 
this  legal  reform  to  its  logical  results,  and  have  thus  produced 
a  system  which  is,  in  my  opinion,  consistent  with  itself,  and  simple 
and  practical  in  its  operation.     .     .     . 


655  LEGACIES.  §  il/37 


CHAPTER  THIRD. 

ESTATES  AND  INTERESTS  ARISING  FROM  SUCCESSION 
TO  A  DECEDENT. 


SECTION  I. 

LEGACIES. 

ANALYSIS. 

§   1127.  Jurisdiction  of  equity. 

§   1128.  The  same:   where  originally  exclusive. 

§   1129.  The  same:   in  the  United  States. 
§§   1130-1134.  Kinds  of  legacies. 

§   1130.  Specific  legacies. 

§   1131.  Ademption  of  specific  legacies. 

§   1132.  General   legacies. 

§   1133.  Demonstrative  legacies. 

§   1134.  Annuities. 
§§   1135-1143.  Abatement  of  legacies. 

§   1135.  Abatement  in  general:   order  of  appropriating  assets. 

§   1136.  Nature  of  abatement. 

§   1137.  Abatement   of   specific   legacies. 

§   1138.  Abatement   of    demonstrative    legacies. 

§    1130.  Abatement  of  general  legacies. 

§    1140.  Limitations;    intention    of   testator. 

§   1141.  Exceptions;   legacies  to  near  relatives. 

§   1142.  The  same;  legacy  for  a  valuable  consideration. 

§   1143.  Appropriation  of  a   fund. 

§   1144.  Lapsed   legacies. 

§   1145.  The  same;   statutor\'  changes. 

§  1127.  Jurisdiction  of  Equity. — At  the  comiiion  law  no  action 
could  be  maintained  to  recover  a  legacy,  unless  it  was  a  specific 
legacy  of  goods,  and  the  executor  had  assented  to  it  so  that 
the  property  therein  had  vested  in  the  legatee.^  The  power  of 
the  ancient  ecclesiastical  courts  over  the  subject-matter  of  succes- 
sions and  administration  was  also  very  limited  and  imperfect, 
and  was  at  best  but  a  lame  jurisdiction.-  The  court  of  chancery, 
therefore,  took  and  exercised  a  concurrent  jurisdiction  over  lega- 
cies, as  a  part  of  its  broader  jurisdiction  over  administrations.  This 

>  Decks  v.  Strutt,  5  Term  Rep.  690. 
*  See  Pamplin  v.  Green,  2  Cas.  Ch.  95. 


§  1128  EQUITY  JUKISPRUDEKCE.  656 

jurisdiction,  as  well  over  legacies  as  administrations,  is  based  upon 
the  trust  relation  existing  between  an  executor  or  administrator 
and  the  creditors,  legatees,  and  distributees;  upon  the  necessity  of 
a  discovery,  an  accounting  or  a  distribution  of  assets  in  order  to 
determine  the  rights  of  all  interested  parties;  and  upon  the  fact 
that  the  remedies  given  by  all  other  courts  are  inadequate,  incom- 
plete, and  uncertain.  The  jurisdiction,  originally  concurrent,  but 
necessarily  exclusive  in  certain  species  of  legacies,  became,  and 
•itill  continues  to  be,  practically  exclusive  in  England  over  the  en- 
tire subject  of  legacies." 

§  1128.  Where  Jurisdiction  of  Equity  was  Exclusive. — Over  cer- 
tain species  of  legacies  the  jurisdiction  of  chancery  was  originally 
and  necessarily  exclusive,  since  the  ecclesiastical  courts  possessed 
no  jurisdiction  in  such  cases.  These  were  legacies  charged  upon 
land,^  and  legacies  given  in  trust,  or  which  involve  the  carrying 
into  effect  of  a  trust,  either  express  or  arising  by  operation  of 
law.-  In  certain  other  cases  the  equitable  jurisdiction  was  neces- 
sai-ily  exclusive,  because  the  relief  given  by  the  ecclesiastical  courts 
was  wholly  inadequate  to  protect  the  rights  of  all  the  parties  in- 
terested in  the  legacy  or  in  the  estate."  Among  the  most  important 
of  these  cases  were  the  following:  Where  a  discovery  of  assets- 
or  a  final  settlement  of  the  whole  estate  is  required;*  when  a  legacy 
is  given  to  a  married  woman,^  or  is  given  to  an  infant,''  and  where 
a  general  legacy  is  given  payable  at  a  future  day,  since  the  court 
of  equity,  for  purposes  of  security,  can  direct  the  executor  to  pay 
the  amount  into  court,  or  such  security  to  be  given  as  the  circum- 
stances may  require;"  and  finally,  when  a  specific  legacy  is  given  to 
one  person  for  life,  and  on  his  death  to  another  person  absolutely, 
since  a  court  of  equity  can  protect  the  remainderman  by  requir- 
ing the  life  owner  to  give  security  where  there  is  waste  or  danger 
of  waste  and  consequent  loss  of  the  property.^  None  of  these  in- 
cidents connected  Avith  a  decree  for  the  payment  of  legacies  came 
within  the  cognizance  of  the  ecclesiastical  courts. 

^  Adair  v.  Shaw,  1   Schoales  &  L.  243,  2G2,  per  Lord  Redesdale. 

'  Sherman   v.    tShermaiij   4   Alien   392. 

-  Anonymous,  1  Atk.  491. 

"  In  «ueh  cases  the  court  of  chancer\'  would,  as  a  matter  of  course,  restrain 
by  injunction  the  proceedings  begun  in  the  ecclesiastical  courts. 

VPratt  V.  >.ortham,  5  Mason  95,  105,  Fed.  Cas.  Xo.  11,37(5.  As  to  discovert, 
see  §§23.5,  236,  346. 

^  Because  if  the  husband  sues  for  it  in  the  ecclesiastical  court  there  was  no 
power  to  compel  him  to  make  a  settlement,  and  thus  to  protect  the  wife's 
equity:      Anonymous,   1   Atk.  491. 

"Because  the  ecclesiastical  court  could  not  ])r<)vide  for  investing,  securing, 
or  accumulating  the  fund:     Horrell  v.  VValdron,  1  Vern.  20. 

'  See  Slanning  v.  Style.  3  P.  ^^  nis.  334. 

*  Foley  V.  Burnell,   1   Ih:  Cli.  274,  279. 


657  LEGACIES.  §  1130 

§  1129.  Equitable  Jurisdiction  in  the  United  States.— Suc-h  bein^^ 
the  ori.yinal  jiinsdii-lioii  as  oxercisetl  by  the  En.uli.sli  court  of  chan- 
cery, it  exists  to  its  full  extent,  unabridged  by  statutes,  in  but  a 
few  of  the  states;  in  very  many  states  it  has  been  largely  restricted, 
in  some  it  has  become  practically  obsolete,  and  in  a  few  it  has  been 
expressly  abrogated.  .  .  ,  The  probate  courts  in  this  country 
.  .  .  have  generally  the  power  to  decree  payment  of  legacies, 
on  the  application  of  individual  legatees,  during  the  pendency  of 
an  administration,  and  to  call  the  executor  to  a  final  account,  and 
to  decree  a  final  settlement  and  distribution  of  the  estate,  and 
therein  to  determine  and  protect  the  rights  of  legatees,  at  least 
in  all  ordinary  cases.  In  such  proceedings  the  probate  courts  fol- 
low the  settled  doctrines  of  equity,  and  are  able  to  grant  some  of 
the  remedies  originally  peculiar  to  the  court  of  chancery.  While 
the  equitable  jurisdiction  is  thus  rendered  unnecessary  under  or- 
dinary circumstances,  it  nevertheless  still  exists  in  all  those  special 
cases  which  are  not  embraced  within  the  legislation,  and  in  some 
of  the  states  it  remains  in  its  original  extent,  entirely  unabridged. 
I  purpose  to  add  a  very  bi'ief  outline  only  of  the  equitable  doctrines 
concerning  legacies — doctrines  which  control  the  action  of  probate 
courts,  and  which  are  embodied  in  the  modern  statutes  upon  tiie 
subject  enacted  in  several  of  the  states. 

§  1130.  Kinds  of  Legacies — Specific  Legacies. — With  regard  to 
their  intriiisic  natui'e  and  (jualities,  legacies  are  of  three  kinds: 
specific,  general,  and  demonstrative.  A  specific  legacy  is  a  beques*" 
of  a  specific  article  of  the  testator's  estate,  distinguished  from  al\ 
others  of  the  same  kind ;  as,  for  example,  a  particular  horse,  or 
piece  of  plate,  or  money  in  a.  eei'tain  purse  or  chest,  a  particular 
stock  in  the  public  funds,  a  particular  bond  or  othei*  instrument 
for  the  payment  of  money.^  Whether  a  legacy  is  specific  depends 
wholly  upon  the  language  of  the  will.  Unless  the  language  de- 
sci-ibed  points  out  and  identifies  the  particular  thing  given  as  a 
part  of  the  testator's  estate,  distinguishing  it  from  all  other  things 
of  the  same  kind,  then  it  is  not  specific.  Although  the  testator  may, 
at  the  time  of  executing  the  will,  have  an  article  or  ai'ticles  of 
the  same  kind  as  that  which  he  purports  to  give,  still,  unless  his 
language  is  sufficient  to  refer  to,  designate,  and  identify  the  very 
article  itself  as  forming  a  pai-t  of  his  estate,  which  he  thereby  gives, 
the  legacy  is  not  specific,  hut  general.  Under  these  circumstances, 
the  word  ''my"  is  often   operative  in  identifying  the  article.-     A 

n'iflt  V.  roi-tor,  8  X.  Y.  510:    Farmiiii  v.   Ha<com,   122  Mass.  282. 

'Chatiels:  .McFadden  v.  Helley,  28  S.  C.  317,  1.3  Am.  St.  Rep.  075,  5  S.  E. 
812.  Stocic:  Compare  Harvard  I'nitarian  .See.  v.  Tufts,  151  Mass.  70.  2.3  X.  E, 
1000,  7  L.  K.  A.  390,  with  Evans  v.  Hunter,  80  Iowa  413,  41  Am.  St.  Rep.  503, 

42 


§  1131  EQUITY    JUltlSPKUDEXCE.  G58 

specific  legacy  only  becomes  operative  in  case  the  very  article  given 
continues  to  form  a  part  of  the  testator's  estate  at  the  time  of 
his  death.  In  such  case  the  legatee  acquires  a  title  to  the  article 
at  the  death,  by  virtue  of  the  will,  although  the  payment  may  be 
deferred,  and  must  be  obtained  from  the  executor.  Since  his  right 
of  property  is  thus  fixed,  he  is  entitled  to  all  income,  profits,  and 
proceeds  arising  or  accruing  on  the  article  after  the  testator's 
death,  and  before  its  delivery  or  payment  to  himself." 

§  1131.  Ademption  of  Specific  Legacies. — Specific  legacies  are 
governed  by  certain  rules  which  distinguish  them  from  other  kinds, 
and  which  determine  the  rights  of  the  legatees  with  respect  to 
them.  Of  these  rules  the  most  particular  and  distinctive  is  that 
of  ademption.  Ademption  is  the  taking  away  or  removal  of  the 
legacy;  or  in  other  words,  the  extinguishment  of  it  as  a  legacy,  so 
that  the  legatee's  rights  under  or  claim  to  it  are  gone.  The  doctrine 
ot  ademption  results  from  the  verj-  nature  of  a  specific  legacy  as 
already  defined.  By  its  very  nature,  as  the  gift  of  a  specific 
identified  thing,  operating  as  the  mere  gratuitous  transfer  of  the 
thing  without  any  executory  obligation  resting  on  the  testator  or 
his  personal  representatives,  it  follows  that  unless  the  very  thing 
bequeathed  is  in  existence  at  the  death  of  the  testator,  and  then 
funns  a  part  of  his  estate,  the  legacy  is  wholly  inoperative;  the  leg- 
atee has  no  right  or  claim ;  the  executors  are  under  no  obligation 
to  replace  the  thing  by  purchasing  another  one  of  the  same  kind 
as  described  in  the  will  by  means  of  other  assets  in  their  hands 
belonging  to  the  estate.'^  If  the  testator  never  had  the  article  pur- 
ported to  be  specifically  bequeathed,  or  if  he  had  it  at  the  time  of 
making  the  will,  but  has  afterwards  consumed  it,  or  used  it,  or  sold, 
assigned,  or  otherwise  parted  with  it,  or  if  with  his  knowledge  and 
consent  its  specific  form  and  character  have  been  wholly  altered, 
so  that  the  identical  thing  given  by  the  will  has  ceased  to  exist, 
then  the  legacy  is  gone,  extinguished,  and  the  legatee's  rights  to 
it  are  destroyed.  Whatever  thus  puts  an  end  to  the  existence  of 
the  specific  thing  given  by  the  will,  so  that  at  the  testator's  death 
it  does  not- form  a  part  of  his  estate,  is  an  ademption  of  the  legacy. 
There  may  be  a  partial  as  well  as  a  total  ademption,  when  a  portion 
of  the  thing  only  remains  in  its  original  specific  character  among 
the  testator's  assets  at  his  death.-     The  doctrine  of  ademption  does 

53  N.  W.  277,  17  L.  R.  A.  308.  Dfltf;  and  evidences  of  dehts:  Rogers  v. 
Rogers,  67  S.  C.  168,  45  S.  E.  176.  100  Am.  St.  Rep.  721.  Residuary  bequests: 
Uavies  v.  Fowler,  L.  R.  16  Eq.  308. 

^  Kirby  v  Potter,  4  Ves.  748,  751. 

'Walton  V.   Walton,  7  Johns.  Ch.  2.58,   11    Am.   Deo.   456. 

-  Blackstone  v.  Blackstone,  3  Watts.  335.  27  Am.  Deo.  359:  Rogers  v.  Rogers, 
67   S.   C.   168,  45  fS.  E.   176,   100   Am.   St.   Rep.   721    (ademption  of  legacy  of  a 


C.jD  legacies.  §  113"2 

not  apply  to  demonstrative  legacies,  since  they  are  payable  out  of 
the  general  assets  if  the  fund  out  of  which  they  are  primarily  pay- 
able fails.  Xor  does  it  apply  to  general  or  pecuniary  legacies.  The 
"satisfaction"  of  general  legacies,  which  is  sometimes  improperly 
called  their  "ademption,"  depends  upon  entirely  different  prin- 
ciples, and  should  not  be  confounded  with  ademption  proper  of 
specific  legacies."  They  may,  of  course,  be  a  "revocation"  of  de- 
monstratfve   and  of  general  legacies. 

§1132.  General  Legacies. — The  term  "general'"  legacies  com- 
prises all  those  which  are  not  either  specific  or  demoiisli-ative, — - 
that  is.  those  which  are  not  gifts  of  some  identical  article  or  fund 
forming  part  of  the  testator's  estate,  nor  gifts  of  a  sum  payable  out 
of  such  an  identified  fund.  They  are,  therefore,  rather  gifts  of 
amounts  than  of  things  or  pieces  of  property  specially  described 
and  identified.  Since  all  general  legacies  are,  in  their  legal  ett'ect. 
equivalent  to  gifts  of  money  equal  in  amount  to  the  value  of  the 
tiling  actually  described  in  the  bequest,  the  term  "pecuniary"  is 
also  sometimes  used  as  synonymous  with  "general."^  Gifts  of 
sums  of  money,  the  amounts  of  which  only  are  stated,  are  always 
general;  as,  for  example,  "I  bequeath  to  A  B  five  hundred  dollars." 
A  gift  of  any  chattel  or  chattels — as  a  white  horse,  or  furniture, 
or  goods,  or  of  any  kind  of  securities,  such  as  shares  in  any  stock, 
or  governmental  bonds,  and  the  like — may  be  general,  and  teilJ  be 
general,  even  though  the  testator  owns  at  the  time  articles  of  the 
same  kind,  or  even  owns  an  article  precisely  answering  to  the 
description,  unless  the  language  of  the  bequest  describes  and  cer- 
tainly points  out  as  tlip  thing  given  some  identical  article,  horse, 
furniture,  goods,  or  some  identical  shares  of  stocks,  bonds,  or 
fund,  existing  as  a  part  of  the  testator's  estate.-  The  peculiar 
effect  of  a  general  legacy  is,  that,  instead  of  operating  as  a  volun- 
tary a.ssignment  of  the  identical  thing  to  the  legatee,  and  so  tak- 
ing effect  only  when  the  specific  thing  or  fund  remains  in  exist- 
ence as  a  part  of  the  testator's  estate,  it  creates  an  obligation  rest- 
ing upon  the  executor  to  pay  to  the  legatee  the  amount  specified,  if 
there  are  sufficient  assets  left  in  the  estate.  It  takes  effect,  there- 
fore, and  creates  a  right  in  the  legatee  to  the  payment,  if  there  are 
sufficient  assets,  even  though  the  particular  thing,  fund,  stock,  or 

debt)  :  In  re  .Tohnstone's  Settlement.  L.  R.  14  Ch.  Div.  162  (no  ademption  by 
mere  ehange  of  investment  of  trust  funds)  ;  Freer  v.  Freer,  22  Ch.  Div.  022 
(ademption   by  act  of  lunatic's   committee). 

'As  to  "satisfaction"  of  peneral  legracies,  see  ante.  §§  ,520-526.  .544-.564. 

'  "Pecuniary  legacies"  are,  therefore,  "ofeneral  legacies."  Tlie  term  is  not, 
however,  strictly  accurate  as  descriptive  of  a  class,  since  specific  lejjacies  may 
be,  and   often   are,  fj^ifts  of  notliin<i  but  money. 

'Macdonald  v.  Ir\'jne,  L.  Pv.  8  Ch.  Div.  101;  Bliven  v.  Sevmour.  8S  X.  Y.  400. 


§  ll;j5  EQUITY    JUKISi'UUDEXCE,  6G0 

security  mentioned  in  the  bequest  is  not  left  existing  as  a  part 
of  the  testator's  estate  at  his  death,  and  even  though  it  had  never 
belonged  to  the  testator  during  his  lifetime.  If  the  assets  are  not 
sufficient  to  pay  the  legacy  in  full,  the  legatee  is  entitled  to  a  rat- 
able portion  thereof.  This  obligation,  or  executory  right  of  the 
legatee,  created  by  a  general  legacy,  renders  it  in  this  respect  much 
more  advantageous  to  him  than  the  specific  legacy.  For  this 
reason  it  is  an  established  rule  of  construction  of  wills  to  lean 
strongly  in  favor  of  an  interpretation  which  makes  a  legacy  gen- 
eral rather  than  specific."" 

§  1133.  Demonstrative  Legacies. — Demonstrative  legacies  are 
a  peculiar  kind  which  partake  of  the  nature  of  both  specific  and 
general  legacies,  and  combine  the  advantages  of  each.  Demonstra- 
tive legacies  are  bequests  of  sums  of  money,  or  of  quantity  or 
amounts  having  a  pecuniary  value  and  measure,  not  in  themselves 
specific,  but  made  payable  priinurih/  out  of  a  particular  designated 
fund  or  piece  of  property  belonging,  or  assumed  to  belong,  to  the 
testator.^  Their  effect  is  peculiar.  Although  made  primarily  pay- 
able out  of  a  particular  fund,  these  legacies  do  not  fail — are  not 
adeemed — because  ^uch  fund  may  not  exist  as  a  part  of  the  testa- 
tor's estate  at  his  death,  but  they  are  then  payable  out  of  his  gen- 
ei'al  assets,  like  general  legacies.  On  the  other  hand,  if  such  par- 
ticular fund  is  in  existence  as  a  part  of  the  testator's  estate  at  his 
death,  they  are  not  liable  to  abatement  in  common  with  general 
legacies,  but  are  entitled  to  payment  under  tlie  circumstances  in 
exactly  the  same  manner  as  true  specific  legacies. - 

§  1134.  Annuities. — An  annuity,  when  given  by  will,  is  the  be- 
quest of  some  certain  specified  amount  of  money  to  be  paid  at 
prescribed  recurring  intervals  of  time  during  some  period,  which 
may  be  any  definite  number  of  years,  or  for  life,  or  perpetual.^  . 
It  is  oi'dinarily,  however,  made  payable  out  of  some  designated 
fund:  as,  for  example,  out  of  certain  stock,  or  the  interest  arisinu' 
from  certain  mortgages,  or  the  rents  and  profits  of  certain  lands. 
Such  an  annuity  is  in  all  respects  a  '^ demonstrative"  legacy,  and 
is  governed  by  the  rules  regulating  that  species  of  legacies." 

§  1135.  Abatement  of  Legacies. — The  order  in  which  the  differ- 
ent kinds  of  property  and  funds  belonging  to  an  estate  should  be 
appropriated  in  the  payment  of  debts,  legacies,  and  other  claims 

=  TiHt  V.  Porter,  8  N.  Y.  5 Hi. 

>  Robinson  v.   Gfldard.  .3  Macn.  &:  G.   T.^o,  744,   745;   Giddings  v.   Seward,   16 
N.  Y.  365;  Ives  v.  Canby,  48  Fed.  718. 
-Giddings  v.  Seward,   10  N.  Y.  .365. 
'  F.mery  v.  Batchelder,  78  Me.  2,3.3,  3  Atl.  733. 
^  Additon  V,  Smith,  S3  :Me.  551,  22  Atl.  470. 


661  LEGACIES.  ^lin." 

may,  of  course,  be  determined  by  the  testator,  and  these  directions 
contained  in  his  will  are  followed  in  the  final  settlement  and  dis- 
tribution. In  the  absence  of  any  such  directions  by  the  testator, 
courts  of  equity  have  adopted  certain  fundamental  principles,  and 
have  established  a  certain  order  upon  the  basis  of  these  principles. 
by  which  the  rights  of  all  claimants  upon  the  estate,  as  amonu' 
themselves,  are  to  be  finally  settled,  and  in  accordance  with  whicli 
the  estate  is  to  be  applied  in  the  discharge  of  their  claims.  These 
fundamental  principles  may  be  stated  as  follows:  Creditors  are 
entitled  to  be  paid  in  full  out  of  all  assets  subject  to  their  debts, 
in  preference  to  all  mere  volunteers,  whether  heirs,  next  of  kin. 
legatees,  or  devisees.^  In  the  absence  of  contrary  directions  in  the 
will,  the  personalty  is  the  primary  fund  for  the  payment  of  debts 
and  legacies.  Property  undisposed  of  by  the  will  is  primarily  liable 
in  preference  to  that  which  is  expressly  bequeathed  or  devised.  By 
applying  these  principles,  in  combination  with  the  general  classes 
of  directions  which  the  testator  mai/  prescribe,  the  order  has  been 
established  as  given  in  the  foot-note.- 

'  In  the  states  in  this  countiy.  and  at  present  in  England,  the  land  of  the 
deceased  testator  or  intestate  is  an  asset  liable  for  his  debts. 

-  This  order  has  been  motlified  to  a  greater  or  less  e.xtent  by  the  statutes  of 
various  states.  It  forms,  however,  the  basis  of  the  legislation,  and  its  funda- 
mental principles  have  been  siihstantiaUy  followed  in  the  statutory  system  of 
most  of  the  states  which  have  legislated  on  the  subject.  In  a  few — as,  for 
example,  in  California — all  discrimination  between  real  and  personal  pro])- 
erty  has  been  practically  abrogated.  So  far  as  tlie  statutes  have  not  inter- 
fered, the  principles  and  order  established  by  tlie  court  of  chancery  have  been 
followed  by  the  American  courts.  Tlie  true  meaning  of  the  doctrine  involved 
in  this  order  should  not  be  misapprehended.  It  furnishes  a  rule  by  which 
the  rights  of  claimants  and  of  those  entitled  to  the  different  classes  of  funds, 
as  a)iioiig  tJieinselves,  are  to  be  adjusted  in  the  final  apportionment  and  dis- 
tribution of  the  whole  estate.  It  does  not  necessarily  and  imder  all  circum- 
stances compel  creditors  or  legatees  to  resort  to  the  various  classes  of  funds 
in  the  order  laid  down  for  the  satisfaction  of  their  demands.  On  the  con- 
trary, so  far  as  the  rights  of  creditors  are  alone  concerned,  nil  the  classes  of 
funds  are  in  general  liable;  and  so  far  as  the  rights  of  general  legatees  are 
alone  concerned,  several  of  the  classes  are  certainly  liable.  The  doctrine  simply 
means  that  whenever  subsequent  classes  of  funds  (e.  g.,  the  fourth  or  fifth) 
have  been  appropriated  for  the  payment  of  debts  or  legacies  which  are 
primarily  chargeable  upon  prior  classes  (e.  g.,  the  first,  second,  or  tliird),  so 
that  the  persons  properly  entitled  to  those  subsequent  classes  would  be  dis- 
appointed, then  such  disa])pointed  claimants  may  have  the  assets  composing 
those  prior  classes  of  funds  marshaled  in  their  own  favor — in  other  words, 
they  then  become  entitled  to  resort  to  those  prior  classes  (first,  second,  or 
third,  as  the  case  may  be)  for  the  satisfaction  of  their  own  demands  which 
were  otherwise  primarily  chargeable  u])on  the  subsequent  classes  (the  foudli 
or  fifth).  In  this  manner  the  doctrine  secures,  as  far  as  possible,  the 
crpiitahlf  rights  of  all  classes  of  claimants  upon  the  estate,  and  an  equi- 
table appropriation   of  all   the  classes   of  fun<ls   of  which    it   is   composed.      The 


§  1 !.'](;  '  EQUITY    JUKISPKUDKXCE.  GG3 

§1136.  Nature  of  Abatement. — •'xVbatement"  literally  means 
a  subtraction  from  the  legacy,  so  that  the  full  amount  given  by  the 
will  is  not  actually  received  by  the  legatee.  It  assumes  that  the 
total  estate  left  by  the  testator  is  not  sufficient  to  pay  all  the  debts 
and  other  charges  upon  it,  and  all  of  the  gifts  which  he  has  made 
in  the  will.  If  the  estate  is  sufficient  for  both  these  purposes,  there 
can  be  no  place  for  any  diminution  of  legacies  or  devises.  When 
all  the  expenses  and  charges  and  debts  have  been  paid  or  provided 
for,  and  there  are  not  assets  enough  left  to  pay  all  the  legacies  and 
devises  in  full,  plainly  there  must  be  some  subtraction  from  thi^ 
amounts  specified  in  the  will.  Does  this  abatement  extend  to  all 
alike?  or  are  some  entitled  to  a  preference  over  others?  Must  all 
be  diminished  by  a  pro  rata  deduction!  or  must  the  abatement  h\^ 
first  applied  to  a  certain  class,  even  so  far  as  to  Avholly  absorb  and 
extinguish  it  if  necessary,  before  resort  is  made  to  another  and 
more  favored  class?  There  is  such  a  preference  based  upon  the 
distinction  between  Sjiaciflc  gifts — legacies  and  devises — and  those 
which  are  general.  The  doctrine  of  "abatement"  determines  the- 
j/riority  among  the  classes,  and  the  order  in  which  the  necessary 
subtraction  must  be  made,  so  that  the  preferred  class  shall  not  be 
abated  until  the  assets  appropriate  for  the  legacies  of  the  inferior 
class  have  been  exhausted ;  and  it  also  determines  the  rule  by  which 
all  the  legacies  of  the  same  class,  as  between  themselves,  shall  be 
reduced,  whenever  a  deficiency  of  assets  occurs.  This  latter  rule 
is  a  striking  application  of  the  maxim,  Equality  is  equity,^ 

order  in  which  the  different  classes  of  assets  are  to  be  appropriated  and 
administered,  so  as  to  secure,  if  possible,  the  equitable  rights  of  all  claimants, 
creditors,  and  volunteers,  is  the  following:  1.  The  general  personal  property 
not  disposed  of  at  all  by  the  will,  or  only  disposed  of  by  being  included  in  the 
residuary  clause:  Davies  v.  Topp,  1  Brown  Ch.  524,  .526.  2.  Real  estate  ex— 
})ressly  devised  to  he  sold  for  the  payment  of  debts,  and  not  merely  charged 
with  the  payment  of  debts:  Davies  v.  Topp,  1  Brown  Ch.  524,  527;  Harmood 
V.  Oglander,  8  Ves.  lOG,  124,  125.  3.  Real  estate  descending  to  the  heir,  not 
charged  with  debts:  Davies  v.  Topp.  supra;  Harmood  v.  Oglander,  sui)ra. 
4.  Ileal  estate  devised  and  personal  property  specifically  bequeathed  char<i<(l 
with  the  payment  of  debts;  that  is,  specifically  given  to  devisees  or  h-gatecs 
subject  to  the  payment  of  debts:  Harmood  v.  Oglander,  supra.  5.  General 
pecuniary  legacies,  or,  to  speak  more  accurately,  the  personal  property  whicli 
would  otherwise  be  needed  to  pay  the  general  legacies.  All  the  property  of  this 
class  must  contribute  ratably.  0.  Real  estate  devised,  not  charged  with  debt-^. 
including  the  real  estate  embraced  in  a  residuaiy  devise,  since  every  devise  of 
land  is  essentially  specific,  and  personal  property  specifically  bequeathed:  tluit 
is.  articles  or  funds  given  as  specific  legacies.  These  kinds  of  property,  being 
spceificalli/  given,  stand  on  the  same  footing,  and  they  all  contribute  ratably 
witli  each  other  in  case  of  a  deficiency:  Hensman  v.  Fryer,  L.  R.  '.'  Ch.  420.  2 
Eq.  C27.  7.  Property  Avhich  the  testator  appoints,  under  a  general  power  of 
appointment,  in  favor  of  volunteers. 
>!See  ante,  §  411. 


G6d  LEGACIES.  §  1141 

§  1137.  Abatement  of  Specific  Legacies. — Among  legacies,  the 
specific  constitute  the  preferred  class.  Specific  legacies  do  not 
abate  in  common  with  general  legacies;  they  only  abate  if  the  de- 
ficiency of  assets  is  so  great  as  to  render  a  resort  to  them  neces- 
sary when  the  fund  representing  the  general  legacies  is  exhausted. 
Whenever  it  becomes  necessary  to  resort  to  the  class  composed  of 
the  specific  legacies  and  devises,  all  the  legacies  and  devises  in  that 
class  will  abate  pro  rata.  Specific  legacies  and  devises  stand  upon 
the  same  footing,  are  subject  to  the  same  liability,  are  abated  to- 
getlier  under  the  same  circumstances,  and  contribute  ratably  lor 
the  payment  of  debts  and  charges.^ 

§  1138.  Abatement  of  Demonstrative  Legacies. — If  the  fund  out 
of  which  they  are  primarily  made  payable  exists  as  a  part  of  the 
testator's  estate  at  his  death,  demonstrative  legacies  are  governed 
by  the  same  rules  as  .specific  legacies,  and  abate  only  with  them 
nifabli/;  but  if  the  fund  does  not  so  exist,  they  become,  in  effect, 
general  legacies,  and  must  contribute  pro  rata  with  all  the  other 
general  legacies.^ 

§  1139.  Abatement  of  General  Legacies. — The  rule  is  settled, 
that,  with  one  or  two  particular  exceptions,  and  in  the  absence  of 
a  contrary  intention  expressed  by  the  testator,  all  general  legacies 
are  liable  to  be  abated  to  the  extent  of  complete  obliteration,  in 
order  to  pay  the  debts  in  full,  before  resort  is  had  to  the  specific 
legacies  and  devises,  if  the  deficiency  of  assets  is  so  great  as  to  re- 
quire such  an  entire  appropriation  of  the  funds  otherwise  appli- 
cable to  the  payment  of  these  legacies.  When  the  deficiency  is  only 
partial,  so  that  a  complete  abatement  is  unnecessary,  all  the  gen- 
eral legacies  must  contribute  ratably;  in  other  Avords,  they  are  all 
subject  to  a  pro  rata  abatement.  General  annuities  stand  upon 
the  same  footing,  and  abate  pari  passu  with  other  general  legacies.^ 

§  1140.  Limitations — Intention  of  the  Testator. — This  doctrine, 
although  nearly  universal,  may  still  be  overcome  by  a  contrary  in- 
tention of  the  testator  plainly  expressed  in  the  will.  If  a  testator 
uses  language  sufficiently  showing  an  intention  that  a  certain  leg- 
acy or  legacies  otherwise  general  shall  have  preference,  and  be 
paid  in  full  before  the  others,  and  not  abate  pro  rata  with  them, 
such  intention  will  be  carried  out,  and  the  legacy  or  legacies  will 
be  preferred,  although  general.^     .     .     . 

§  1141.     Exceptions — Legacies  to  Near  Relatives. — It  is  the  set- 

'  Powell  V.  Riley,  L.  R.   12  Eq.   175. 
'  Mullins  V.  fSniith,  1  Drew.  &  S.  204,  210. 
'Titus's  Adm'r  v.  Titus,  26  N.  J.  Eq.  111. 

'Appeal  of  Trustees  Univ.  I'a.  07  Pa.  fcst.  1S7;  Additon  v.  Smitli,  S3  Me.  551, 
22  Atl.  470. 


^  11-14  EQUITY    jrKI.SPKUDEXCi:.  f)G4 

tied  rule  of  equity,  iudependent  of  statutes,  that  among  g-eneral 
legacies  there  is  no  precedence,  no  exemption  from  pro  rata  or  com- 
plete abatement,  in  favor  of  legacies  to  a  wife,  child,  or  other 
near  relative  of  the  testator.^  If,  however,  the  testator  siiows 
an  intent  to  give  such  legacies  the  preference,  his  intention  will 
I)e  followed;  and  a  court  of  equity  would  easily  discover  such  in- 
tention in  favor  of  a  widoAv,  child,  or  descendant.-  This  general 
rule  has  been  changed  in  several  states  by  statutes  which  give 
legacies  to  near  family  relatives  the  preference  over  all  other  gen- 
eral legacies,  and  perhaps  over  those  which  are  special  or  demon- 
strative. 

§  1142.  The  Same.  Legacy  for  a  Valuable  Consideration. — 
One  exception  to  the  general  rule  of  abatement  has  always  been 
admitted  by  courts  of  equity.  A  general  legacy  given  for  a  val- 
uable consideration — as,  for  example,  to  a  widow  in  lieu  and  satis- 
faction of  her  doAver,  or  to  a  creditor  in  pa^^ment  or  discharge  of 
a  debt — has  priority,  and  does  not  abate  with  the  other  legacies, 
provided  the  dower  right  or  the  debt  still  exists  at  the  testator's 
death. 1 

§  1144.  Lapsed  Legacies. — When  the  legatee  is  dead  at  the  time 
of  making  the  will,  or  dies  afterwards  during  the  testator's  lifetime, 
by  the  common-law  rule  the  legacy  to  him  is  said  "to  lapse":  the 
gift  to  him  Avholly  fails;  it  does  not  pass  to  his  personal  representa- 
tives, next  of  kin,  or  heirs,  nor  has  he  the  power  to  disspose  of  it 
by  his  own  will.  In  short,  the  legacy  becomes  entirely  nugatory, 
The  same  general  rule  of  the  common  law  applies  to  a  devise  of 
any  real  estate.^  Where  a  gift  is  made  to  a  number  of  persf)ns 
r/.s  a  class,  such  class  to  be  ascertained  and  fixed  as  it  exists  at  the 
death  of  the  testator  or  at  any  other  specified  time,  the  predecease 
of  any  member  of  the  class  will  not  occasion  a  lapse  of  his  share: 
the  class  as  it  exists  at  the  time  designated  will  take  the  whole 
property.-  Whenever  a  legacy  lapses,  the  specific  property  be- 
queathed, if  it  was  specific,  or  the  amount  of  assets  which  would  be 
re(juisite  for  its  payment  if  it  was  general,  falls  into  the  residue, 
and  passes,  by  the  residuary  clause,  if  there  be  one:  but  if  there 
be  no  residuary  clause,  then  as  to  such  property  the  testator  would 
in  fact  die  intestate:  the  amount  would  be  actually  undisposed  of 
by  will.  Where  a  devise  lapsed,  by  the  common-law  rulo  the  land 
given  by  it  would  not  fall  into  any  residuary  clause  of  the  testator's 

'Appeal  of  Trustees  Univ.  Pa.  07  Pa.  St.   187. 

-Lewin  v.  Lewin.  2  Ves.  Sr.  41.5. 

'  Brown  v.  Bro\\n.  79  Va.  fi48. 

*  Applet  on  V.  Rowley.  L.  R.  8  Eq.   1^0. 

'Sluittleworth  v.  Greaves,  4  :Mylne  &  C.  35. 


665  DONATIONS     CACSA     MOKTIS.  §  1116 

real  estate,  but  would  descend  to  his  heir  or  heirs  at  law.  This 
latter  rule  of  the  common  laAV  has  been  altered  in  England  and 
generally  in  the  American  states  by  statute.'' 

§  1145.  The  Same.  Statutory  Changes. — The  foregoing  rules  of 
the  common  law  were  generally  adopted  in  this  country,  and  still 
form  a  part  of  our  jurisprudence,  except  in  the  particular  cases 
or  under  the  particular  circumstances  where  they  have  been  al- 
tered by  statute.  Such  modifying  legislation,  within  certain  well- 
defined  limits,  has  been  extensively  enacted.  One  common  type 
seems  to  have  been  followed.  In  England  the  modification  is  con- 
fined to  a  legacy  or  devise  to  a  child  or  other  descendant  of  the 
testator  who  shall  predecease  leaving  issue  living  at  the  testator's 
death.  The  gift  in  such  case  shall  not  lapse. ^  American  statutes 
have  sometimes  made  the  alteration  of  the  old  rule  a  little  broadei' 
in  its  operation,  but  still  have  confined  it  to  gifts  bestowed  upon 
near  family  relatives  of  the  testator.  Under  the  language  of  the 
English  statute,  it  is  held  that  the  issue  are  not  substituted  in  place 
of  their  deceased  parent,  but  tlje  legacy  or  devise  actually  vests  in 
the  original  legatee  or  devisee  to  whom  the  testator  gave  it,  so  that 
it  will  pass  by  a  will  made  by  such  legatee  or  devisee  who  dies  be- 
fore the  original  testator.'-  It  woidd  seem,  however,  that  the  lan- 
guage of  some  of  the  American  statutes  does  not  admit  such  an 
interpretation. 


SECTION  II. 
DONATIONS   CAUSA   MORTIS, 

ANALYSIS. 

§   1146.  General  nature. 

§   1147.  Is  not  testamentary. 

§   1148.  The    subject-matter   of    a    valid    gift. 

§  1149.  Delivery. 

§   11-50.   Revocation. 

§   1151.   Equitable   jurisdiction. 

§1146.     General  Nature. — A  doiiMtion  cansa  mortis  is  a  gift  ab- 

^  1  Vict.,  c.  26,  see.  25.  A  lapsed  devise  is  made  (o  fall  into  the  residue 
like  a  lapsed  legacy.  The  reason  of  the  common-law  rule  was  found  in  tbo 
doctrine  that  a  will  of  land,  unlike  that  of  personal  property,  speaks  as  from 
tbo  date  of  its  execution,  and  not  from  the  testator's  death.  This  distinction  lias 
been  generally  abrogated  by  statute,  so  that  in  England  and  in  most  of  our 
states  wills  of  real  and  of  personal  property  alike  speak  as  at  the  time  of  the 
testator's   death. 

'  1  Vict.,  e.  26,  sec.  3.3. 

'  Winter  v.  Winter,  5  Hare  306. 


§  1147  EQUITY    JURISPUUDEXCE. 


GG6 


solute  in  form,  made  by  the  donor  in  anticipation  of  his  speedy 
death,  and  intended  to  take  effect  and  operate  as  a  transfer  of  the 
ti1le  upon,  and  only  upon,  the  happening  of  the  donor's  death. 
Between  the  time  when  the  gift  is  made  and  the  article  donated  is 
delivered,  and  the  time  when  the  donor  dies,  the  donation  is  wholly 
inchoate  and  conditional;  the  property  remains  in  the  donor,  await- 
ing the  time  of  his  death,  and  passes  to  the  donee  when  the  death, 
ill  anticipation  of  which  the  gift  was  made,  happens,  unless  the  do- 
nation has  in  the  meantime  been  revoked  by  the  donor;  the  donee 
thus  becomes  a  trustee  for  the  donor,  with  respect  to  the  article 
delivered  into  his  possession,  until  the  gift  is  made  perfect  by  the 
donor's  death.  Tlie  gift  must  be  absolute,  with  the  exception  of 
tlie  condition  inherent  in  its  nature  depending  upon  the  donor's 
death,  as  above  described,  and  a  delivery  of  the  article  donated  is 
a  necessary  element ;  but  it  is  subject  to  revocation  by  the  act  of 
the  donor  prior  to  death,  and  is  completely  revoked  by  the  donor's 
recovery  from  the  sickness  or  escape  from  the  danger  in  view  of 
which  it  was  made.^  Such  a  donation  may  be  made  by  a  donor 
who  anticipates  his  speedy  death  because  he  is  suffering  at  the  time 
lUider  an  attack  of  severe  illness  wdiich  he  supposes  to  be  his  last, 
or  because  he  is  exposed,  or  expects  soon  to  be  exposed,  to  some 
great  and  unusual  peril  of  his  life;  as  by  a  soldier  soon  before  enter- 
ing into  battle,  or  by  a  person  innnediately  before  undergoing  a 
dangerous  surgical  operation.  If  a  gift  is  actually  made  by  the 
donor  during  his  last  sickness,  or  luider  any  other  circumstances 
A\  hich  Avould  naturally  impress  him  with  an  expectation  of  speedy 
death,  it  will  be  presumed  to  be  a  donation  causa  mortis,  although 
the  donor  does  not,  in  express  terms,  declare  it  to  be  such.-  Al- 
though courts  do  not  lean  against  gifts  causa  mortis,  yet  the  evi- 
dence to  establish  them  should  be  clear  and  unequivocal,  and  will 
be  closely  scrutinized.     The  burden  of  proof  lies  on  the  donee.' 

§  1147.  Is  not  Testamentary. — A  gift  causa  mortis  is  not  a  tes- 
ictneniary  act;  if  it  beconu's  absolute,  the  title  of  the  donee  is  de- 
rived directly  from  the  donor  in  his  lifetinu\  and  not  from  or 
through  his  executors  or  administrators.^  For  this  reason,  if  a 
person  intends  to  make  a  tesiamentary  gift,  which  for  any  reason 


'Ridden  v.  Thrall,  125  N.  Y.  572,  20  X.  E.  027,  21  Am.  St.  Rep.  758,  II 
L.  R.  A.  084;  Johnson  v.  C'olley,  101  Va.  414,  44  S.  E.  721,  99  Am.  St.  Rep. 
884,  and  note;  Thomas's  Adm'r  v.  Lewis,  89  Va.  1,  15  S.  E.  389,  37  Am.  St.  Rep. 
848,  18  L.  R.  A.  170;  Leyson  v.  Davis,  17  Mont.  220,  42  Pac.  775,  31  L.  R.  A. 
429;  Staniland  v.  VVillott,  3  Macn.  &  C.  GG4,  674-077,  080. 

2  Gardner  v.   Parker,   3  Madd.    184,    185. 

'  Smith  V.  Smith's  Adm'r,  92  Va.  090,  24  S.  E.  2S0. 

M<:mery  v.  Clough.  03  N.  H.  552,  50  Am.  Rep.  543,  4  Atl.  796. 


667  DONATION'S    CAUSA    iMORTIS.  §  i  l-^^"^ 

is  iueffectual,  it  CMiinot  be  supported  as  a  donation  causa  mortis;" 
nor  can  an  imperfeet  gift  inter  vivos  be  sustained  as  a  valid  dona- 
tion causa  mortis.^  It  partakes,  however,  so  much  of  the  nature 
of  a  testamentary  bequest  that  it  is  liable  for  the  debts  of  the 
testator  in  case  of  a  deficiency  of  assets.*  A  valid  gift  nuiy  be 
nuide  to  any  person,  to  the  wife  of  the  donor,^  or  to  one  standing  in 
fiduciary  or  confidential  relations  to  him,**  as  Avell  as  to  a!!  others. 
§  1148.  The  Subject-matter  of  a  Valid  Gift.— All  kinds  of  per- 
sonal property,  using  the  word  in  its  broad,  mercantile  sense,  as 
equivalent  to  assets,  which  are  capable  of  manual  delivery,  and  of 
which  the  title,  either  legal  or  equitable,  can  be  transferred  by  d(^- 
livery,  may  be  the  subject-matter  of  a  valid  donation  causa  ^mortis. 
That  all  actual  chattels,  including  monej^,  either  coin  or  bank  notes, 
may  be  donated,  has  never  been  questioned.  Whatever  doubt  may 
have  once  been  entertained,  the  rule  is  now  well  established  that 
all  things  in  action  which  consist  of  the  promises  or  undertakings 
of  third  persons,  not  the  donor  himself,  of  which  the  legal  or  equit- 
able title  can  pass  by  delivery,  may  be  the  subjects  of  a  valid  gift, 
including  promissory  notes,  bills  of  exchange,  checks,  bonds,  mort- 
c'ages.  savings-bank  pass-books,  certificates  of  deposit,  policies  of 
insurance,  and  the  like;  and  it  is  settled  by  the  recent  cases  that 
a  valid  donation  of  negotiable  instruments  may  thus  be  made  with- 
out indorsement.^  Debts  due  from  the  donee  himself  may  be  do- 
nated, either  by  giving  back  to  him  the  written  evidence  of  debt, 
or  by  canceling  or  destroying  the  same,  or  by  delivering  a  receipt.- 
Things  in  action,  on  the  other  hand,  in  which  the  donor  himself 
is  the  debtor  party,  cannot  be  the  subject-matter  of  a  valid  gift. 
The   reason    is,    that,    whatever   be    their    form,    these    gifts   would 

=  Basket  v.  Hassell,   107  U.  fS.  G02,  2  Sup.  Ct.  415,  27   L.  ed.  500. 

'Edwards  v.  Jones,   1   Mylne  &  C.  226,  Ames  Trusts   140. 

*  Borneinan  v.  Sidlinger,  15  Me.  429,  33  Am.  Dee.  020. 

*Boutts  V.  Ellis,  4  De  Gex,  M.  &  G.  249, 

"In  such  ease  the  evidence  must  be  most  unequivocal:  Thompson  v.  IlefTcrnan, 
4  Dm.  &   War.  285    (to  donor's  spiritual  adviser). 

•Promissory  notes  of  third  person:  Grover  v.  Grover,  24  TMok.  201,  35  Am.  Dec. 
319,  Ames  Trusts  159.  Savings-bank  pass  books:  Ridden  v.  Thrall,  125  N.  Y.  572, 
26  N.  E.  627,  21  Am.  8t.  Kep.  758,  11  L.  R.  A.  684;  but  not  the  pass-book  of  an 
ordinary  bank  of  deposit;  Jones  v.  Weakley.  99  Ala.  441,  12  South.  420,  42  Am.  St. 
Rep.  84,  19  L.  R.  A.  700.  Policy  of  insurance:  Williams  v.  Guile,  117  N.  Y.  343, 
22  N.  E.  1071,  6  L.  R.  A.  360.  Under  the  law  of  this  country,  with  respect  to  the 
title  of  the  assignee  before  transfer  is  made  on  the  com])any's  books.  Ihere 
seems  to  be  no  reason  aa'Iiv  a  certificate  of  stock  may  not  be  the  subject  of  a 
valid  gift — certainly  if  it  has  been  indorsed  in  blaid<:  but  in  my  opinion  such 
indorsement  is  not  necessary.  See  Leyson  v.  Davis,  17  Mont.  220,  42  Pac. 
775,  31  L.  R.  A.  429,  where  it  is  held  tliat  a  delivery  without  indorsement  is 
valid. 

=  Moore  v.  Darton,  4  De  Gex  &   S.  517,  Ames  Trusts   39. 


§  nSO  EQUITY    JURISPRrDEXCE.  668 

aiiKMint  to  nothing  more  than  the  donor's  own  naked  executory 
iiroinlse  to  pay  at  some  further  day,  without  any  consideration  to 
support  it;  and  such  a  voluntary  promise  cannot  be  enforced  against 
the  donor  nor  against  his  executors  or  administrators.^ 

§  1149.  Delivery. — It  is  essential  to  the  validity  of  a  donation 
that  the  thing  given  be  delivered  to  the  donee  or  to  his  use.  With- 
out a  delivery  the  transaction  would  only  amount  to  a  promise  to 
gi\e,  which,  being  without  consideration,  would  be  a  nullity.  Tlie 
intention  to  give  must  be  accompanied  by  a  delivery,  and  the  de- 
livery must  be  made  with  an  intention  to  give.  The  practical 
(juestion  therefore  is,  What  is  a  sufficient  delivery?^  The  delivery 
may  be  made  directly  to  the  donee,  or  to  an  agent  or  trustee  on 
his  behalf,  but  not  to  an  agent  for  the  donor.  It  may  be  actual 
— a  manual  possession  of  the  article  itself  by  the  donee  or  his 
agent — or  constructive.  If  constructive,  it  must  be  more  than  any 
mere  words,  and  more  than  any  mere  si/niholic  act.  A  constructive 
delivery  must  be  something  which  completely  terminates  the  do- 
nor's custody  and  control  of  the  article  donated,  and  which  places 
ir  ^\ilolly  under  the  donee's  power,  and  enables  him  without  further 
act  on  the  donor's  part  to  reduce  it  to  his  own  manual  possession. 
Ai!  the  cases  which  hold  a  constructive  delivery  to  be  good,  what- 
ever be  their  special  circumstances,  will  be  found  to  conform  to  this 
{'literion :  that  the  donor  parts  with  all  control  and  power  of  ex- 
ei'cising  dominion,  Avhile  the  donee  obtains  the  exclusive  power  of 
talking  physical  possession  and  custody  of  the  article,  so  that  it  is 
in  fact  placed  under  his  sole  dominion.-  As  a  delivery  is  necessary, 
it  follows,  as  a  further  requisite  to  a  valid  donation,  that  the  donee 
must  accept  it.  Such  acceptance,  however,  will  be  presumed  when 
the  gift  is  for  his  advantage,  in  the  absence  of  all  contrary  evidence. 

§  1150.  Revocation. — The  peculiar  element  of  the  donation  causa 
mortis,  which  distinguishes  it  from  the  one  inter  vivos,  is  its  rev- 

=>  Harris  v.  Glark.  3  X.  Y.  93,  110,  51  Am.  Dec.  352. 

'  Delivery  of  a  savings-bank  pass-book  without  any  written  assignment  is 
usually  held  sufficient:  Pierce  v.  Boston  Savings  Bank,  129  Mass.  425,  37 
Am.  Rep.  371.  Previous  and  continuing  jjossession  of  such  a  book  by  tlie 
donee,  it  is  said,  does  not  dispense  with  the  necessity  of  actual  delivery:  Drew 
V.  Hagerty,  81  Me.  231,  17  Atl.  63,  10  Am.  St.  Rep.  255,  3  L.  R.  A.  230.  De- 
livery of  the  pass-book  of  an  ordinary  bank  of  deposit  is  not  sufficient:  Jones 
V.   Weakley,  99  Ala.  441,  12  South.  420,  42  Am.  St.  Rep.  84,  19  L.  R.  A.  700. 

-The  leading  case  is  Ward  v.  Turner,  2  Ves.  Sr.  431,  1  Lead.  Cas.  Eq.  1205. 
Deliveiy  to  an  agent  or  trustee  on  behalf  of  the  donee:  Johnson  v.  rolley.  101 
Va.  414,  99  Am.  St.  Rep.  884,  44  S.  E.  721.  As  to  constructive  delivery  by  delivery 
of  the  key  of  a  tnmk  or  other  locked  receptacle,  compare  Thomas's  Adm'r  v. 
Lewis,  SO  Va.  1,  15  S.  E.  389,  37  Am.  St.  Rep.  848,  18  L.  R.  A.  170,  with  Keepers 
v.  Fidelity  Title,  etc.,  Co.,  56  N.  J.  Law  302,  28  Atl.  585,  44  Am.  St.  Rep.  397, 
23    L.    R.    A.    1S4. 


669  ADMIXISTRATIOX     OF    ESTATES.  §  1153 

ocable  nature.  Although  it  be  absolute  in  its  form,  and  althouiili 
Ihc  thing-  must  be  delivered  to  the  donee,  yet  the  transaction  is 
inchoate,  and  the  property  remains  in  the  donor  until  his  death 
He  may,  therefore,  at  any  time  prior  to  his  death,  revoke  and  aTi- 
nul  the  gift  by  language  sufficiently  indicating  such  intent,  U' 
the  donee  did  not,  therefore,  voluntarily  surrender  up  possession 
of  the  thing,  he  would  retain  it  as  a  trustee  for  the  donor's  execu- 
tors or  administrators,  who  could  recover  the  same,  or  its  value. 
The  donor's  recovery  from  his  sickness,  or  his  escape  from  the 
anticipated  peril  with  his  life,  also  operates  as  a  revocation,  and 
the  donee  would  then  hold  the  article  as  a  trustee  for  the  donor.' 
When  a  gift  causa  mortis  is  made  during  sickness,  it  is  essential, 
in  order  to  perfect  it  and  prevent  a  revocation,  that  the  donor 
should  die  of  the  very  same  sickness  from  which  he  is  then  suffer- 
ing, and  that  there  should  be  no  intervening  recovery  between  that 
illness  and  his  final  death;  and  it  seems  that  the  donee  must  af- 
firmatively show  the  existence  of  all  these  facts.-     .     .    . 


SECTION  III. 

ADMIXISTRATiOX    OF    ESTATES. 

AN.\LYSIS. 

§   1152.     Equitable     jurisdiction    in    the    United    States. 
§   115.3.     The   same;    fundamental    principle;    Rosenberg    v.    Frank. 
§  1154.     The  jurisdiction  as  administered  in  the  several   states;   general 
resume — The  states  alphabetically  arranged  in  foot-note. 

§1152.  Equitable  Jurisdiction  in  the  United  States.^ — 
§  1153.  The  Same.  The  Fundamental  Principle. — One  fumhi- 
mental  principle  should  be  constantly  kept  in  mind;  it  underlies 
ail  particular  rules,  and  furnishes  the  solution  for  most  of  the  spe- 
cial questions  which  can  arise.  In  all  those  states  which  havp 
adopted  the  entire  system  of  equity  jurisprudence,  whatever  be  the 
legislation  concerning  the  powers  and  functions  of  the  probate 
courts,  and  whatever  be  the  nature  and  extent  of  the  subjects  com- 
mitted to  their  cognizance,  the  original  eq'uitable  jurisdiction  ovet 
administrations  does  and  must  still  exist,  except  so  far  and  willi 

'  Stanilaiid  v.  Willott,  3  Macn.  &  G.  664. 

-  But  it  is  held  that  he  need  not  die  of  the  same  disease  of  which  he  Avas 
apprehensive;  as  where  a  gift  was  made  in  anticipation  of  a  surgical  opera- 
tion, which  was  sxiccessful.  but  before  the  donor  left  the  hospital  he  died  of 
heart  disease,  from  which  he  was  also  sutfcring  at  the  time  of  the  gift:  Ridden 
T.  Thrall.  125  X.  Y.  572.  26  N.  l-J,  627,  21  Am.  St.  Rep.  758,  11  L.  R.  A.  684. 

»See    ante,    S§    1127,    1128- 


§  115-1:  EQUITY    JUIUSPHUDEXCE.  ImO 

respect  to  such  particulars  as  it  has  been  abrogated  by  express 
prohibitory,  negative  language  of  the  statutes,  or  by  necessary  im- 
plication from  affirmative  language  conferring  exclusive  powers 
upon  the  probate  tribunals.  This  equitable  jurisdiction  may  be 
dormant,  but,  except  so  far  as  thus  destroyed  by  statute,  it  must 
continue  to  exist,  concurrent  with  that  held  by  the  courts  of  pro- 
bate, ready  to  be  exercised  whenever  occasion  may  require  or 
jimder  it  expedient.^  This  general  principle,  so  familiar,  so  funda- 
mental, running  through  all  branches  of  the  equitable  jurisdiction, 
but  so  often  lost  sight  of  by  American  courts  in  dealing  with  the 
jurisdiction  as  applied  to  administrations,  was  admirably  stated 
by  one  of  the  al)lest  of  American  judges:  "There  is  nothing  in 
the  nature  of  jurisdiction,  as  applied  to  courts,  which  renders  it 
exclusive.  It  is  a  matter  of  common  experience  that  two  or  more 
courts  may  have  concurrent  powers  over  the  same  parties  and  the 
same  subject-matter.  Jurisdiction  is  not  a  right  or  privilege  be- 
longing to  the  judge,  but  an  authority  or  power  to  do  justice  in 
a  given  ease,  when  it  is  brought  before  him.  There  is,  I  think,  no 
instance  in  the  whole  history  of  the  law  where  the  mere  grant  of 
jni-isdiction  to  a  i)articular  court,  without  any  words  of  exclu- 
sion, has  been  held  to  oust  any  other  court  of  the  powers  which  it 
before  possessed.  Creating  a  new  forum  with  concurrent  jurisdic- 
tion may  have  the  effect  of  Avithdrawing  from  the  courts  which 
l)efore  existed  a  portion  of  the  causes  which  would  otherwise  have 
been  brought  before  them;  but  it  cannot  affect  the  power  of  the 
old  courts  to  administer  justice  when  it  is  demanded  at  their 
hands.  "- 

§  1154.  The  Jurisdiction  as  Administered  in  the  Several  States. 
— The  states  nia}^  be  roiujhhj  giouped  into  three  classes,  although 
there  is  still  a  considerable  Jiversity  among  the  individuals  com- 
posing each  class.  In  the  states  of  the  first  class,  the  original  equi- 
table jurisdiction  over  administrations  remains  unabridged  by 
the  statutes,  concurrent  witli  that  possessed  by  the  probate  courts. 
In  many  of  them  a  suit  for  the  administration,  settlement,  and  dis- 
tribution of  an  estate  may  be  brought,  as  a  matter  of  course,  in 
a  court  of  ecjuity  in  the  first  instance,  instead  of  in  the  court  of 
})i'o])ate.  In  most,  the  general  principle  regulating  the  exercise  of 
all  concurrent  jurisdiction  prevails,  that  when  either  court  has 
assumed  jurisdiction  of  a  particular  case,  the  other  tribunal  will 
not  ordinarily  interfere.  These  states  are  Alabama,  Illinois,  Iowa, 
Kentucky,  ^Maryland,  Mississippi,  New  Jersey,  North  Carolina, 
Ehode  Island,  Tennessee    (in  certain  special  cases),  Virginia,  Dis- 

*  Rosenberg    v.    Fi;ink,    58    Cal.    387. 

^Delafield  v.  State  of  Illinois,  2  Hill,   159,   1G4,  per  Bronson,  J. 


C?!  ADMiMfeTKATLON     OF     KISTATKS.  §  1154 

triet  of  Columbia,  and  the  United  States  courts.  In  the  states  of 
the  second  class,  the  jurisdiction  of  the  probate  courts  over  every- 
tliing  pertaining  to  the  reouhu'  administration  and  settleinent  of 
decedents'  estates  is  virtually  exclusive.  The  equitable  jurisdic- 
tion over  the  subject  is  neitlier  concurrent  nor  auxiliary  and  cor- 
rective. It  exists  only  in  matters  which  lie  outside  of  the  regular 
course  of  administration  and  settlement,  Avhich  are  of  purely  e(iui- 
table  cognizance,  and  which  do  not  come  within  the  scope  of  the 
l)robate  jurisdiction.  These  states  are  Connecticut,  Indiana, 
Maine,  IMassachusetts,  Michigan,  Nebraska,  Nevada,  New  Hamp- 
shire, Oregon  and  Pennsylvania.  In  the  states  of  the  third  class, 
the  equitable  jurisdiction  is  not  concurrent,  but  is  sinq^ly  auxiliary 
or  ancillary  and  corrective.  The  probate  court  takes  cognizance 
originally  of  all  administrations,  and  has  powers  sufficient  for  all 
ordinary  purposes.  Equity  interposes  only  in  special  or  extraordin- 
ary eases,  which  have  either  been  wholly  omitted  from  the  statu- 
tory grant  of  probate  jurisdiction,  or  for  which  its  methods  and 
reliefs  are  imperfect  and  inadequate,  or  where  its  proceedings 
have  miscarried  and  require  correction.  This  class  includes  Ar- 
kansas, California,  Georgia,  Kansas,  Missouri,  New  York,  Ohio, 
South  Carolina,  Tennessee,  Texas,  Vermont  and  Wisconsin. 
Among  the  particular  instances  in  which  it  has  been  held  b}^  courts 
of  states  composing  the  third  class,  that  equity  has  jurisdiction  of 
matters  belonging  to  administrations,  the  following  are  some  of 
tlie  most  important,  although  it  must  not  be  understood  that  such 
cases  have  arisen  and  such  decisions  been  made  in  all  of  these 
states.  If  a  court  of  equity  in  those  states  where  its  jurisdiction 
is  merely  auxiliary  and  corrective  can  take  cognizance  of  such 
special  circumstances,  then  a  fortiori  a  court  of  equity  may  do  so 
in  those  states  where  its  original  jurisdiction  is  preserved  concur- 
rent with  that  of  the  probate  tribunals.  In  states  of  the  second 
ciass,  however,  the  probate  court  would  furnish  the  onl}'  relief 
iTi  all  these  cases.  Where  an  executor  or  administrator  has  dietl 
v."ithout  rendering  a  final  account,  equit.y  has  jurisdiction  of  a  suit 
to  compel  his  personal  representatives  to  account  at  the  instance 
of  an  administrator  de  bonis  non  or  other  party  interested  in  the 
original  estate,  even,  as  some  cases  hold,  Avhere  there  is  a  surviv- 
ing executor  or  administrator,  and  the  decree  so  rendered  has  been 
held  to  be  binding  upon  the  sureties  of  the  deceased  executor  or  ad- 
ministrator. This  particular  condition  of  fact  seems  to  have  Ix'cti 
emitted  from  the  statutory  jurisdiction  of  the  probate  coui'ts  in 
several  states.^  When  a  settlement  purporting  to  be  final  has  bcMMi 
decreed  in  the  i)r()l)ate  court,  a  jierson  interested  in  the  estate,  who 
H'haiiuptle  v.   Ortct,   (JO   t'al.   -liH ;     ]iii-li   v.    Liiulsoy,  44   Ciil.    121. 


§   1151  EC^UITY    JUPtlSPKUDEXCE.  673 

was  not  a  party  to  such  proceedin<i,-,  may  maintain  a  suit  in  ecjuity 
aii'ainst  the  administrator  or  executor,  and  compel  him  to  a  tiiU 
and  final  account,  treating;  the  former  settlement  as  a  nullity.^ 
It:  has  been  held  in  some  of  these  states  that  a  court  of  equity  may 
take  jurisdiction  in  the  first  instance,  or  even  after  proceedings  in 
pi'obate  have  begun,  of  an  administration,  and  may  decree  a  final 
settlement  and  distribution.  Avhen  there  are  peculiar  circumstances 
of  difficulty  in  the  administration,  and  when  such  exercise  of  the 
equitable  jurisdiction  would  prevent  great  delay,  expense,  incon- 
venience, and  waste,  and  would  thus  conclude  by  one  suit  and 
decree  a  protracted  and  vexatious  litigation.^  It  cannot  be  said 
that  these  circumstances  would  be  regarded  as  sufficient  grounds 
for  exercising  the  equitable  jurisdiction  in  all  the  states  of  the 
third  class,  although  they  would  undoubtedly  be  sufficient  in  all 
those  of  the  first  class.  It  is  generally  held  that  a  court  of  equity 
lias  jurisdiction  to  set  aside  the  decree  of  a  probate  court  obtained 
l)y  fraud,  both  in  states  of  the  first  and  of  the  third  classes,  but 
J  lot  in  those  of  the  second.*  A  judgment  creditor  of  the  -deceased 
may  maintain  a  suit  virtually  to  take  the  administration  out  of 
the  hands  of  the  administrator,  and  for  a  final  settlement,  where 
the  intestate  had,  with  the  connivance  of  the  person  afterwards  ap- 
pointed administrator,  made  a  disposition  of  his  property  fraudu- 
lent as  against  his  creditors,  and  the  administrator  is  engaged  in 
carrying  out  such  fraudulent  scheme.  It  is  also  generally  held 
that  equity  may  interfere  with  a  pending  administration  Avhen  the 
administrator  has  committed  a  devastavit,  or  is  wasting  the  assets, 
especially  if  he  be  insolvent,  or  is  guilty  of  fraud  in  the  manage- 
ment of  his  trust.'"'  Although  the  accounting  by  the  administra- 
tor for  property  of  the  estate  in  his  hands  belongs  to  the  probate 
court,  yet  equity  has  jurisdiction  of  personal  claims  between  an 
administrator  and  the  estate;  that  is,  claims  personal  to  him.seli, 
growing  out  of  dealings  with  the  deceased,  which  the  administrator 
sets  up  adverse  to  creditors,  distributees,  and  other  persons  inter- 
ested in  the  estate-  as,  for  example,  claims  set  up  under  a  deed 
to  himself  from  the  deceased,  or  under  an  agreement  with  the 
deceased,  and  the  like.*"'  Where  there  has  been  no  administration, 
but  the  heirs  or  next  of  kin  have  settled  and  divided  the  estate 
by  voluntary  arrangement  among  themselves,  it  seems  that  a  credi- 

=  Clarke  v.  Perry,  5  Cal.  58,  63  Am.  Dec.  82;   Deck  v.  Gerke,  12  Cal.  433,  73 
Am.    Dee.    ."i.l.^. 

^  Deck   V.    (lerke.   supra. 
^Sanford    v.    Head.    .5    Cal.    297. 
'•Ragsdale   v.   Holmes,    1    S.   C.   91. 
"Morse   v.    Slason,    13   Vt.    296. 


Q'io  .    ADMIX  ISTKATIOX  OF  ESTATES.  §  1154 

tor  may  iiuiintain  a  suit  in  equity  to  compel  a  payment  of  his 
demand  out  of  tlie  property,  without  the  necessity  of  taking  out 
an  administration;^  and  in  some  states  it  is  held  that  e(|uity  has 
jurisdiction  both  where  there  has  been  no  administrator,  and  when 
the  administrator  has  made  a  final  settlement  and  has  been  dis- 
charged.'' By  virtue  of  the  auxiliary  jurisdiction  of  ecpiity,  a 
creditor  may  maintain  a  suit,  somewhat  in  the  nature  of  a 
"creditor's  bill,"  to  reach  assets  which  justly  and  equitably  be- 
long to  the  estate,  and  to  bring  them  within  the  power  and  con- 
ti'ol  of  the  administrator,  so  that  they  may  be  administered  upon 
and  distributed  by  him."  When  a  partner  dies,  although  the 
l>i'obate  court  may  have  ample  power  to  settle  his  estate,  yet  the 
auxiliary  jurisdiction  of  equity  still  remains,  and  will  be  gen- 
ei'ally  exercised  in  states  of  the  first  and  third  classes,  and  prob- 
iibly  in  many  of  the  second,  by  means  of  a  suit  for  an  accounting 
and  settlement  of  the  partnership  affairs,  either  brought  by  the 
representatives  of  the  deceased  partner  against  the  survivors,  or 
by  the  survivors  against  snch  representatives.^"  In  all  the  states 
of  the  first  and  third  classes,  and  in  a  great  majority  it  seems 
of  those  belonging  to  the  second,  equity  retains  its  jurisdiction  of 
suits  for  the  foreclosure  of  mortgages  upon  the  lands  of  deceased 
mortgagors  or  other  deceased  owners  of  land  "encumbered  by  mort- 
gage ;^^  but  in  a  very  few  of  the  states  forming  the  second  class, 
it  appears  that  the  mortgage  must  be  enforced,  like  any  other 
demand  against  the  estate  of  the  deceased  mortgagor,  in  the  reg- 
ular course  of  administration  pending  before  the  probate  court. ^- 
Finally,  throughout  all  the  states,  the  original  jurisdiction  of  equity 
over  trusts  remains  unabridged  and  virtually  unaft'ected  by  the 
jurisdiction  given  to  probate  courts.  It  is  exercised  in  enforcing 
the  performance  of  trusts  and  in  controlling  the  conduct  of  trustees 
as  well  when  trusts  of  real  or  of  personal  property  are  created  by 
will  as  by  deed.  The  equitable  jurisdiction  concerning  the  en- 
forcement of  testamentary  trusts  is  universally  regarded  as  en- 
tirely separate  and  distinct  from  the  jurisdiction  over  adminis- 
trations. 


^Cameron   v.   Cameron,   82    Ala.    3P2,   3   South.    148;     Patterson   v.    Allen.    50 
Tev.    2.3. 

»Long  V.   Mitchell,   63   Ga.    709. 

"McDonald  v.  Alten.  1   Ohio  St.  203. 

"  Griggs  V.  Clark,  23  Cal.  427. 

"Meyers   v.   Farquharson.   40   Cal.    inO;     Willis   v.   Farley,   24   Cal.   494,  500. 

"^Cannon  v.  McDaniel,  46  Tex.  303. 


43 


§  115G  EQUITY    JUIUSPKUDENCE.  674 


SECTION  IV. 
CONSTRUCTION    AND    ENF0RCE:\IENT    OF    WILLS. 

AXALYSLS. 

§  1155.  Origin    of    tlie    jurisdiction. 

§  list).  Extent  of  the  jvirisdiction :   a  branch  of  tliat  over  trusts, 

§  1157.  The   same;    a   broader   jurisdiction    in   some   states. 

§  1158.  Suit    to    establish    a    \vill. 

§  1155.  Origin  of  This  Jurisdiction. — Since  in  England  the  court 
of  chancery  possesses  and  exercises  a  full  jurisdiction  over  the  ad- 
ministration and  settlement  of  decedents'  estates,  whether  the  de- 
ceased died  testate  or  intestate,  it  has  never  been  doubted  that 
equity  has  there  the  power,  as  an  incident  of  this  jurisdiction,  to 
construe  and  enforce  wills  of  personal  property.  Under  its  gen- 
eral jurisdiction  over  trusts,  a  court  of  equity  has  also  the  power 
to  construe  and  enforce  wills  of  real  as  Avell  as  of  personal  prop- 
erty, so  far  as  they  create,  or  their  dispositions  involve  the  crea- 
tion of,  trusts.  So  far  as  a  will  of  real  property  bequeaths  purely 
legal  estates,  and  the  devisees  therein  obtain  purely  legal  titles 
to  the  land  given,  the  enforcement  thereof  belongs  to  the  courts 
of  law  by  means  of  the  action  of  ejectment ;  the  courts  of  law 
have  full  power  to  cons^.riie  and  interpret  the  instrument  and  to 
determine  the  rights  of  the  devisees;  there  is  no  necessity,  and 
therefore  no  power,  of  resorting  to  a  court  of  equity,  in  order  to 
obtain  a  construction  of  such  wills.  The  same  rules  Avould  be 
recognized  as  regulating  the  action  of  the  courts  in  all  of  the 
states  of  this  country  which  have  preserved  the  original  juris- 
diction of  equity  over  administrations,  either  as  exclusive  or  as 
coneurrent  with  that  given  to  the  courts  of  probate.  In  the  great 
niajority  of  the  states,  as  has  been  shown,  this  original  jurisdiction 
of  equity  over  administrations  has  either  been  completely  abro- 
gated, or  has  been  so  curtailed  and  restricted  that  it  exists  merely 
as  auxiliary  to  and  corrective  of  the  prin(*ipal  jurisdiction  held  by 
the  probate  tribunals.  Throughout  the  American  states  there  has 
necessarily  arisen,  as  a  supplement  to  the  ordinary  functions  of 
the  pi'obate  courts,  and  for  the  purpose  of  supplying  the  defects 
in  their  methods  and  remedies,  a  special  jurisdiction  of  equity 
"for  the  construction  of  wills,"  which  it  is  the  object  of  the 
l)i,esent  section  to  describe. 

5^  1156.  Extent  of  the  Jurisdiction — A  Branch  of  That  over 
Trusts. — Although  there  is  not  an  entire  uniformity  in  the  de- 
cisions by  courts  of  different  states   npoii   this  particular  subject, 


675  COXSTIM'CTIOX    AND    EX  FOHCKMENT    OF    AVILLS.  §  1157 

y(4  the  doctrine  wliieli  seems  to  be  both  in  harmony  with  principle 
and  sustained  by  the  weight  of  authority  is,  that  the  special  equita- 
ble jurisdiction  to  construe  wills  is  simply  an  incident  of  the  gener- 
al jurisdiction  over  trusts;  that  a  court  of  equity  will  never  enter- 
tain a  suit  brought  solely  for  the  purpose  of  interpreting  the  pro- 
visions of  a  will  without  any  further  relief,  and  will  never  exercise 
a  power  to  interpret  a  will  which  only  deals  with  and  disposes 
of  purely  legal  estates  or  interests,  and  which  makes  no  attemi)t 
to  create  any  trust  relations  with  respect  to  the  property  donated.* 
In  the  language  of  recent  and  well-considered  cases,  "The  rule  is, 
that  to  put  a  court  of  e(juity  in  motion,  there  must  be  an  actual 
litigation  in  respect  to  matters  which  are  the  proper  subjects  of 
the  jurisdiction  of  that  court  as  distinguished  from  a  court  of 
law.  It  is  by  reason  of  the  jurisdiction  of  courts  of  chancery  over 
trusts  that  coiu'ts  having  equitable  powers,  as  an  incident  oP 
that  jurisdiction,  take  cognizance  of  and  pass  upon  the  interpre- 
tation of  wills.  They  do  not  take  jurisdiction  of  actions  brought 
solely  for  the  construction  of  instruments  of  that  character,  noi- 
when  only  legal  rights  are  in  controversy.  It  is  when  the  court 
is  moved  on  behalf  of  an  executor,  trustee,  or  cestui  que  trust,  and 
to  insure  a  correct  administration  of  the  power  conferred  by  a 
will,  that  jurisdiction  is  had  to  give  a  construction  to  a  doubtful 
or  disputed  clause  in  a  will.  The  jurisdiction  is  incidental  to  that 
over  trusts."-  Even  by  courts  which  maintain  this  restricted  doc- 
trine, it  has  been  held  that  the  jurisdiction  extends  to  the  con- 
struction of  a  doubtful  will  of  personal  property  at  the  suit  of 
the  executor  or  of  a  legatee,  although  the  instrument  creates  no 
express  trust,  on  account  of  the  implied  trust  relation  always  ex- 
isting between  the  executor  and  the  legatees.^  In  accordance  with 
this  doctrine,  which  regards  a  trust  express  or  implied  as  essential 
to  the  jurisdiction,  it  necessarily  follows  that  the  suit  can  only  bo 
maintained  by  some  party  fJirerfJi/  interested  in  the  trust  under 
the  will:  that  is,  by  an  executor  or  a  trustee,  or  by  a  cestui  que 
trust  or  a  legatee:  it  cannot  be  maintained  by  an  heir  at  law,  or 
a  devisee  of  a  mere  legal   title,  and  much  less  by  a   creditor. 

§  1157.  The  Same.  A  Broader  Jurisdiction  in  Some  States. — 
It  cannot  be  denied  that  there  are  decisions  by  able  courts  which 
take  another  and  less  restricted  view  of  the  jurisdiction.  According 
to  the  doctrine  of  these  cases,  the  jurisdiction  to  construe  wills 
is    not    necessarily   connected    with    the    general    jurisdiction    over 

'  Simmons  v.   Hendricks,   8   Ivcd.   Eq.   84.   85.   80.    ">.->   Am.   Doc.   430. 
-Chipninn  v.  ]\fontoomory.  G?,  N.  Y.  221,  230,  per  Allen,  J.;   Bailey  v.  Brio^irfi, 
56  N.  Y.  407,  per  Fnlucr,  .?. 

3  Bowers    v.    Smitli,    10    Pai-je.    103. 


§  1157  EQUITY    JLfRlSPRUDEN'CE.  GTG 

trusts ;  the  presence  of  a  trust  express  or  implied  is  not  made  a 
criterion  of  its  existence  nor  of  its  proper  exercise ;  it  is  regarded 
as  arising-  wholly  from  the  complicated  character  of  provisions  in 
a  will,  from  the  difficulty  of  understanding  their  meaning,  or  the 
doubt  and  uncertainty  as  to  the  rights  and  interests  of  the  parties 
claiming  under  them.  In  short,  the  jurisdiction  to  construe  a  will 
exists  and  is  exercised  whenever  its  terms  are  really  difficult  or 
doubtful,  or  their  validity  is  contested,  without  reference  to  the 
presence  or  absence  of  any  trust. ^  It  is  well  settled  that  a  court 
will  never  entertain  a  suit  to  give  a  construction  or  declare  the 
rights  of  parties  upon  a  state  of  facts  which  has  not  yet  arisen, 
nor  upon  a  matter  which  is  future,  contingent,  and  uncertain ;-  nor 
upon  a  matter  which  is  wholly  past,  as  upon  the  past  conduct  of  the 
executor.^  The  jurisdiction  will  not,  it  seems,  be  extended  so  as 
to  permit  an  administrator  to  obtain  the  direction  of  a  court  of 
equity  with  regard  to  the  proper  discharge  of  his  duties.* 

'Rosenberg-    v.    Frank,    58    Cal.    387. 
'Minot   V.   Taylor,    129   Mass.    160. 
^Sohier    v.    Burr,    127    Mass.    22L 
^Clay  V.  Gurley,  62  Ala.  14, 


677  coxvEKaioN  of  property.  §  1159 


CHAPTER    FOURTH. 

EQUITABLE  ESTATES  ARISING  FROM  CONVERSION. 
SECTION  I. 

THE  CONVERSION  OF  REAL  ESTATE  INTO  PERSONAL,  AND  OF 
PERSONAL  ESTATE  INTO  REAL. 

ANALYSIS. 

§   1150.  Definition   and   general    nature. 

§   1160.  1.  \A'hat  words  are  sufficient  to  work  a  conversion. 

§   1161.  The   same;    under  a   contract   of   sale. 

§   11G2.  11.  Time  from  which  the  conversion  takes  effect. 

§   1163.  The   same;    in    contracts    of    sale    with    option. 

§   1164.  111.  Effects  of  a  conversion;   land  directed  or  agreed  to  be  sold. 

§   1165.  The  same;  money  directed  or  agreed  to  be  laid  out  in  land. 

§   1166.  Limitations  on  these  effects. 

§   1167.  Conversion    by    paramount    authority;    coinpulsory    sale    of    land 

under   statute:    sale   by   order   of   court. 
§   lies.  Conversion  as  between  life  tenant  and  remainderman. 

§  1159.  Definition  and  General  Nature. — The  fundamental  prin- 
eipal  that  equity  reuard.s  that  as  done  which  ona^ht  to  be  done, 
which  underlies  the  doctrine  of  equitable  conversion,  and  of  which 
it  is  the  most  remarkable  illustration,  has  been  fully  discussed 
and  explained  in  a  former  volume.^  Conversion  has  been  briefly 
and  accurately  defined  as  "that  change  in  the  nature  of  property 
by  which,  for  certain  purposes,  real  estate  is  considered  as  per- 
sonal, and  personal  estate  as  real,  and  transmissible  as  such."- 
No  express  declaration  in  the  instrument  is  needed  that  land  shall 
be  treated  as  money  althouGh  not  sold,  or  that  money  shall  be 
deemed  land  although  not  actually  laid  out  in  the  purchase  of  land. 
The  only  essential  requisite  is  an  absolute  expression  of  an  inten- 
tion that  the  lanfl   f<]inll  be  sold  and  turned  into  money,  or  that  the 

^See  ante,  §§  364-371. 

-See  the  more  full  definition  given  by  Sir  Thomas  Sewell,  ^L  R.,  in  Fletcher 
v.  .Ashburner,  1  BrowTi  Ch.  497,  1  Scott  606.  See,  also,  Lorrillard  v.  Coster, 
5  Paige  172,  218,  Chancellor  Walworth;  Green  v.  Smith,  1  Atk.  572,  1 
Ames  Eq.  Jur.  193,  1  Scott  313;  Prentice  v.  Janssen,  79  N.  Y.  478,  1  Scott 
639,  H.  &  B.  163;  Moncrief  v.  Ross,  50  N.  Y.  431,  3  Keener  960;  Delaney 
V.  :McCormack,  88  N.  Y.   174,  H,.   &   B.   407. 


§  1159  EQUITY    JUKISPllUDENCE,  678 

money  shall  be  expended  in  the  purchase  of  land.  If  this  intention 
is  sufficiently  expressed,  the  circuraslance  that  the  land  has  not 
yet  been  sold  and  turned  into  money,  or  that  the  money  has  not 
yet  been  laid  out  in  land,  is  the  very  condition  of  fact  in  which 
the  doctrine  of  conversion  comes  into  play,  to  which  the  maxim. 
Equity  regards  that  as  done  which  ought  to  be  done,  applies.-" 
The  true  test  in  all  such  cases  is  a  simple  one:  Has  the  will  or 
deed  creating  the  trust  absolutely  directed,  or  has  the  contract 
stii)ulated,  that  the  real  estate  be  turned  into  personal  or  the  per- 
sonal estate  be  turned  into  real?  As  this  doctrine  of  conversion 
is  wholly  a  creation  of  equity  jurisprudence,  the  estates  or  inter- 
ests which  result  from  it  are  purely  equitable,  and  of  equitable 
cognizance  alone.  Equity  has  exclusive  jurisdiction  of  suits  to 
maintain  and  protect  such  interests,  except  where,  in  this  country, 
the  doctrine,  as  it  effects  the  devolution  of  property,  is  recognized 
and  followed  by  the  probate  courts  in  the  settlement  and  distri- 
Inition  of  decedents'  estates.  The  practical  questions  growing  out 
of  the  operation  of  the  doctrine  are  generally  connected  with  the 
devolution — inheritance  or  succession — of  the  property  converted 
upon  the  death  of  the  person  for  whose  benefit  it  was  originally 
given,  or  with  his  transfer  of  it  by  assignment,  or  with  the  claims 
to  it  of  thiixl  parties.* 

^  Lecliniere  v.  Ivirl  of  Carlisle,  3  P.  Wms.  211,  215;  tScudaniore  v.  Scudamore, 
I'rcc.   C'h.   543,   1    Scott   315,  596,  3  Keener  947. 

'  For  illustralioii.  if  money  had  been  given  by  ^\  ill  or  deed  to  trustees  upon 
trust  to  purchase  land  therewith  and  convey  same  to  A  in  fee,  and  A  died 
before  the  trustees  had  made  the  purchase,  and  while  the  money  was  in  their 
hanfls.  the  inipoitant  question  as  to  A's  interest  would  for  the  first  time 
])ractically  arise:  Was  that  interest  real  estate,  so  that  it  descended  to  A's 
heirs  if  he  died  intestate?  or  was  it  personal  estate,  so  that  it  devolved  upon 
his  administrator?  Would  it  pass  by  a  general  bequest  of  personal  property, 
or  by  a  general  devise  of  lands?  If  A  was  a  married  man,  was  his  \\ido\v 
entitled  to  dower  in  it?  If  A  was  a  married  woman,  was  her  husband  en- 
titled to  curtesy?  VMiere  the  parties  to  a  contract  for  the  sale  of  land  die 
before  execution,  are  the  vendee's  heirs  or  his  personal  representatives  entitled 
to  the  benefit  of  tlie  agreement?  Does  the  purchase-money,  when  paid,  belong- 
to  the  heirs  or  to  the  administrators  of  tlie  vendor?  These  are  the  kinds  of 
questions  which  are  determined  by  the  doctrine  of  conversion;  and  their 
solution  depends  upon  the  nature  of  the  estates  resulting  from  the  opei'ation  of 
that  doctrine  upon  the  interests  of  the  original  parties  to  the  will.  deed,  or 
contract.  No  other  docti'ine  is  perhaps  more  important  in  the  equity  juris- 
prudence of  England,  both  because  such  trusts  by  wills,  deeds,  and  family 
settlements  are  tliere  very  frequent,  and  because  the  common-law  diflference 
between  the  descent  of  land  and  the  succession  of  personal  property  is  still 
preserved  in  all  of  its  integrity.  The  applications  of  tiie  doctrine  to  settlements 
often  give  rise  to  questions  of  great  diltioTilty.  In  our  own  coiuitry  the  doctrine 
is  theoretically  adopted  in  all  the  states:  Imt  it-;  applications  are  much  less 
frequent  and  more  simple  than  in  England.     \\  ith  us,  trust  estates  and  family 


OT^'  C0XVEi:SIO\    OF    I'lv'Ol'KUTY.  §  11(50 

§  1160.     I.     What  Words  are  Sufficient  to  Effect  a  Conversion. 

—  Tlie  whole  scope  and  iiieaniiiti'  ol'  tlie  fundamental  principle  un- 
derlying the  doctrine  are  involved  in  the  existence  of  a  dulj/  rest- 
ing upon  the  trustees  or  other  parties  to  do  the  specified  act;  for 
unless  the  equitable  ought  exists,  there  is  no  room  for  the  operation 
of  the  maxim,  Equity  regards  that  as  done  which  ought  to  be  done.^ 
The  rule  is  therefore  firmly  settled,  that  in  order  to  work  a  con- 
version while  the  ]>roperty  is  yet  actually  unchanged  in  form,  there 
jnust  be  a  clear  and  imperative  direction  in  the  will,  deed,  or  set- 
tlement, or  a  clear  imperative  agreement  in  the  contract,  to  con- 
vert the  property — that  is,  to  sell  the  land  for  money,  or  to  lay 
out  the  money  in  the  purchase  of  the  land.  If  the  act  of  convert- 
ing— that  is,  the  act  itself  of  selling  the  land  or  of  laying  out  the 
money  in  land — is  left  to  the  option,  discretion,  or  choice  of  the 
trustees  or  other  parties,  then  no  eqnitable  conversion  will  take 
place,  becanse  no  duty  to  make  the  change  rests  upon  them.-  It 
]s  not  essential,  however,  that  the  direction  should  be  express,  in 
order  to  be  imperative;  it  may  be  necessarily  implied.  Where  a 
power  to  convert  is  given  without  words  of  command,  so  that 
there  is  an  appearance  of  discretion,  if  the  trusts  or  limitations 
are  of  a  description  exclnsively  applicable  to  one  species  of  property, 
this  circumstance  is  sufficient  to  outweigh  the  appearance  of  an  op- 
tion, and  to  render  the  whole  imperative.  Thns,  if  a  power  is 
given  to  lay  out  money  in  land,  hut  the  limitations  expressed  are 
applicable  only  to  land,  this  will  show"  an  intention  that  the  money 
should  be  so  laid  out.  and  will  amount  to  an  imperative  direction 
tc  convert,  for  otherwise  the  terms  of  the  instrument  could  not 
he  carried  into  effect.'     In  fact,  the  whole  result  depends  upon  the 

settlements  are  coniparativoly  very  few.  and  the  tendency  of  modern  legislation 
in  many  of  the  states  is  towards  a  imiformity  in  the  rules  of  law  which  regu- 
late the  descent  of  lands  and  ilie  devolution  of  personal  property.  In  a  few 
of  the  states  the  difference  has  been  completely  abolished,  and  both  real  and 
personal  estate  devolve  in  the  same  proportions  to  the  same  parties.  It  neces- 
sarily follows  that  many  of  the  questions  connected  with  conversion  of  the  most 
frequent  occurrence  and  of  the  highest  importance  in  England  are  practically 
unknown  in  this  country. 

^  See  ante.  §§  364,  30.5. 

-\i  should  be  carefully  noticed  that  the  option  or  discretion  spoken  of  in 
this  rule  means  an  option  with  respect  to  the  very  act  of  changing  the  fonn 
of  tlve  property.  If  the  option  is  mereJii  aft  to  the  time  when  this  shall  be 
done,  a  conversion  may  take  place,  as  will  be  more  fully  stated  hereafter.  The 
genera!  rule  of  the  text  is  illustrated  by  the  following  cases:  In  re  Cooper's 
Estate.  206  Pa.  St.  628.  08  Am.  St.  Eep.  790,  .56  Atl.  67 ;  Ford  v.  Ford,  70  Wis. 
10.  33  N.  W.  188,  5  Am.  St.  T?ep.  117.  and  note.  Mere  discretion  as  to  the 
time  or  7nanner  of  efl'ecting  tlie  sale  does  not  prevent  a  conversion  from  taking 
place:     Tazewell  v.  Smifh's  Adm'r,   1    Ra:id.  3i:i.   10  Am.  lice.  .5.S.3. 

*Earlom  v.  Saunders.  And).  241,  1  Scolt  (w,~ .  3  Keener  0.il. 


§  11G3  EQUITY    JLiaSPllLDEXCE.  GSO 

intention.  If  by  express  language,  or  by  a  reasonable  constniction 
of  all  its  terms,  the  instrument  shows  an  intention  that  the  original 
form  of  the  property  shall  be  changed,  then  a  conversion  necessarily 
takes  place.'* 

§  1161.  Under  a  Contract  of  Sale. — A  contract  of  sale,  if  all  the 
terms  are  agreed  upon,  also  operates  as  a  conversion  of  the  prop- 
ert}^,  the  vendor  becoming  a  trustee  of  the  estate  for  the  pur- 
chaser, and  the  purchaser  a  trustee  of  the  purchase-money  for  the 
vendor.^  In  order  to  work  a  conversion,  the  contract  must  be  valid 
and  binding,  free  from  inequitable  imperfections,  and  such  as  a 
court  of  equitj'  will  specifically  enforce  against  an  unwilling  pur- 
chaser.^ The  fact  that  the  contract  of  purchase  is  entirely  at  the 
option  of  the  purchaser  does  not  prevent  its  working  a  conversion, 
if  he  avails  himself  of  the  option.' 

§  1162.  II.  Time  from  which  the  Conversion  Takes  Effect.— This, 
like  all  other  questions  of  intention,  must  ultimately  depend  upon 
the  provisions  of  the  particular  instrument.  The  instrument  might 
in  express  terms  contain  an  absolute  direction  to  sell  or  to  pur- 
chase at  some  specified  future  time;  and  if  it  created  a  trust  to 
sell  upon  the  happening  of  a  specified  event  which  might  or  might 
not  happen,  then  the  conversion  would  only  take  place  from  the 
time  of  the  happening  of  that  event,  but  would  take  place  when 
the  event  happened  exactly  as  though  there  had  been  an  absolute 
direction  to  sell  at  that  time.^  Subject  to  this  general  modification, 
the  rule  is  settled  that  a  conversion  takes  place  in  wills  as  from  the 
death  of  the  testator,  and  in  deeds,  and  other  instruments  inter 
vivos,  as  from  the  date  of  their  execution. - 

§  1163.  Time  in  Contracts  of  Sale  v^ith  Option. — In  contracts  of 
sale  upon  the  purchaser's  option,  the  question  whether  or  not  a 
conversion  is  eifected  at  all  cannot,  of  course,  be  determined  until 
tlie  purchaser  exercises  his  option;  but  the  moment  when  he  docs 
exercise  it,  the  conversion,  as  between  parties  claiming  title  under 
the  vendor,  relates  hack  to  the  time  of  the  execution  of  the  contract. 

'Thornton  v.  Hawley,  10  Ves.  129;  In  re  Pforr's  Estate,  144  Cal.  121,  77 
I'ac.  825;  Lent  v.  Howard,  89  X.  Y.  169,  3  Keener  952. 

M4reen  v.  Smith,  1  Atk.  572,  1  Ames  Eq.  Jur.  193,  1  Scott  313;  and  see  ante,. 
SS  368,   372. 

-Ante,  §368,  and  notes:     Mills  v.  Harris,  104  K  C.  626,   10  S.  E.   70f 

■'Lawes  v.  Bennett,  1  Cox  167,  1  Scott  fi02;  Townley  v.  Bedwell,  14  Ves. 
591,  2  Scott  400,  2  Keener  321.  For  further  on  the  subject  of  such  optional 
contracts,  see  post,  §   1163. 

>  Keller  v.  Harper,  64  :\ld.  74,  1  Atl.  65,  3  Keener  964. 

Ml'iHs.-  Morris  v.  Griffiths,  26  Ch.  Div.  601,  3  Keener  955;  Lent  v.  Howard, 
89  N.  Y.  169.  3  Keener  952.  BeefU:  Griffith  v.  Ricketts,  7  Hare  299,  311; 
(^hirke  V.   Franklin,  4  Kay  &  J,  257,  1  Scott  628,  3  Keener  982. 


(isl  cox\Ki;sioN   OF  I'liori'.iri'v.  §  1104 

'I'liiis  where  a  lessee  Avith  an  option  to  pureliasc — or  any  other 
jiircliaser  with  an  option — duly  declares  his  option  after  the  death 
of  the  lessor  or  vendor,  who  is  the  owner  in  fee,  the  realty  is  thereby 
converted  reirospectively  as  between  those  claiming  under  the  lessor 
or  vendor,  or  under  his  will ;  that  is,  as  between  the  heir  or  devisee 
on  one  side  and  the  legatees  or  next  of  kin  on  the  other,  the  proceeds 
will  go  to  his  personal  representatives,  though  the  heir  or  devisee 
Avill  be  entitled  to  the  rents  up  to  the  time  when  the  option  is  de- 
clared.^ It  should  be  carefulh'  observed,  however,  that  this  rule  is 
confined  to  conversion  as  between  the  parties  claiming  title  under 
the  vendor  or  lessor, — his  heirs  or  devisees,  or  his  legatees,  next 
of  kin.  and  personal  representatives, — and  does  not  apply  as  l)e- 
tween  the  vendor  and  purchaser  themselves." 

§  1164.  III.  Effects  of  a  Conversion — Land  Directed  or  Agreed 
to  be  Sold. — So  far  as  is  necessary  to  carr^"  out  the  lawful  purposes 
of  the  instrument,  will,  deed,  settlement,  or  contract,  and  to  tle- 
termine  the  property  rights  of  all  parties  claiming  under  or  through 
it.  e(juity  follows  the  doctrine  into  all  of  its  legitimate  consequences. 
inid  treats  the  property,  from  the  time  at  which  the  conversion  takes 
l)laee.  as  to  all  intents  of  the  kind  and  form  into  which  it  should 
h.ive  been  changed,  and  determines  the  rights  of  parties  to  it  as  in 
that  kind  and  form.^  Land  directed  or  agreed  to  be  sold,  although 
yet  unsold,  is  regarded  and  treated  as  money.  It  will  not  pass  under 
a  devise  of  land  or  of  real  estate.-  It  will  pass  under  a  general  gift. 
transfer,  or  bequest  of  personaltj^,  or  under  a  residuary  bequest  of 
personal  property.^  In  the  absence  of  a  will,  it  goes  to  the  personal 
representative  of  the  intestate  who  would  have  been  or  was  entitled 
to  it.  It  is  therefore  always  personal  assets  in  the  hands  of  execu- 
tors and  administrators  for  which  they  are  accountable.*  As  in  the 
case  of  a  corporation,  so  in  that  of  an  alien,  a  bequest  of  land  thus 
converted  into  money  is  valid,  although  a  devise  of  land  is  or  may 
be  void.'*  The  same  rules  apply  to  the  conversion  wrought  by  con- 
tracts for  the  sale  of  land." 


'Lawes  v.  Bennott,  1  Cox  107,  1  Scott  G02 :   Townley  v.  Bedwoll,  14  Vcs.  .ir)], 

2  Scott  400,  2  Keener  .321 ;  Weeding  v.  Weeding",  1  Johns  &  H.  424,  2  Keener  .324; 
Ex  parte  Hardy,  30  Beav.  206,  2  Keener  327;  In  re  Isaacs  (1894),  3  Ch.  506,  2 
.Vcott  402. 

-Edwards  v.  West,  L.  R.  7  Ch.  Div.  858,  862,  863,  1  Scott  604. 

'See  cases  cited  ante,  under  §§1159,   1162. 

-    Elliott  V.  Fisher,  12  Sim.  505. 

'•Welsh  V.  Crater,  32  X.  J.  Eq.   177.  3  Kcenor  000. 

'Hoddel  V.  Pugh,  33  Beav.  480.  2  Scott  412:   :\IniKriof  v.  Pvoss.  .50  X.  Y.  431, 

3  Keener  960. 

» Craig  V.  Leslie.  3  ^;\nieat.  563,  1  Scolt  611.  H.  &  U.  39,  Shep.  66. 
'  See  ante,  §  368,  and  cases  cited. 


§  ll'jy  EQUITY    JURISPRUDEXCE.  G8"-i 

§  1165.     Money  Directed  or  Agreed  to  be  Laid  out  in  Land. — 

Money  and  other  personal  property  directed  or  agreed  to  be  laid 
out  in  the  purchase  of  land  becomes,  and  is  regarded,  as  land  in 
equity.  It  will  therefore  pass  under  a  general  devise  of  lands  or  of 
real  estate;  it  will  descend  to  the  heir;  and  will  not  be  included  in 
a  bequest  of  money  or  personal  property.^  If  the  heir  die  intestate 
before  the  purchase  has  been  made,  the  fund  will  descend  to  his 
heir,-  .  .  ,  The  money  of  a  married  woman  directed  to  be  laid 
out  in  land  is  liable  to  her  husband's  curtesy,  and  without  doubt, 
under  analogous  circumstances,  such  a  fund  of  a  husband  is  liable 
to  his  wife's  dower.^ 

§  1166.  Limitations  on  the  Eifeots. — Notwithstanding  these  very 
general  effects  of  a  conversion,  they  are  not  absokitely  universal. 
The  doctrine  seems  to  be  correctly  formulated  by  saying  that  the 
effects  extend  only  to  those  persons  who  claim  or  are  entitled  to 
the  property  under  or  through  the  instrument,  or  directly  from 
or  luider  the  author  of  the  instrument.  .  .  .  Two  limitations 
appear  to  be  well  settled :  one  general,  that  the  conversion  does  not 
take  place  as  to  persons  whose  claims  or  rights  to  the  property  are 
purely  incidental,  not  at  all  connected  with  its  devolution  or  trans- 
fei*  from  the  author  or  through  the  instrument;^  and  the  other 
special,  depending  upon  considerations  of  public  policy,  that  the 
conversion  shall  not  be  permitted  to  take  place  so  as  to  evade  the 
statutes  of  mortmain,  which  invalidate  gifts  of  land  to  charities  - 


SECTION  11. 

RESULTING   TRUST    UPON    A    FAILUEE    OF    THE    PURPOSES    OF    THE 

CONVERSION. 

ANALYSIS. 

S   IK!!).  Tlie  questions   stated;    objeot   and   extent  of  the  doctrine. 

S    1170.  A  total  faihue  of  the  purpose. 

§   1171.  Partial    failure;    wills   directing   conversion    of   land   into   money. 

8   1172.  The  same;   wills  directing  the  conversion  of  money  into  land. 

S   117.3.  The  same;   deeds  directing  the  conversion  of  land  into  money. 

§   1174.  The  same:   deeds  directing  the  conversion  of  money  into  land. 

§  1169.     The  Questions  Stated — Object  and  Extent  of  the  Doc- 

'  Oollins  V.  Champ's  Heirs,  15  B.  Mon.  118,  61  Am.  Dec.  170. 
-Scudamore   v.    Scudamore.   Pree.   Ch.    ,543,    1    Scott   .31.5,   .596,   .3   Keener   947. 
^Sweetapple  v.   F>indon,  2  Vern.   536,   Ames  Trusts  370;   and  see  ante,  §990, 
note  4. 

'See  Wilder  v.  Ranney,  95  N.  Y.  7.  12.  3  Keener  002. 

=  Brook  V.  Bradley,  L.  R.  3  Ch.  672,  674,  per  Lord  Cairns. 


GS;>  RESULTING    TRUST    ON     I'AILURE    OF    CONVERSION.  §  IITO 

trine. — The  purposes  for  -wliich  a  conversion  is  directed  might  be 
unlawful,  or  circumstanees  might  arise  after  the  execution  of  the 
instrument  which  rendered  the  conversion  unnecessar3^  In  other 
words,  the  purposes  of  a  conversion  might  fail  totally  or  partially, 
either  before  the  instrument  had  come  into  operation,  or  after 
the  conversion  had  been  de  facto  made  by  a  sale  of  the  land  (u- 
by  a  laj'ing  out  of  the  money  in  land.  The  questions  would  then 
arise,  To  whom  will  the  property — the  entire  amount  in  one  case, 
the  portion  undisposed  of  in  the  other — then  result, — the  author  of 
the  tru.st,  his  heir,  or  his  personal  representatives?  and  in  what  form 
will  it  thus  result, — in  its  original  or  in  its  converted  form,  as  real 
or  as  personal  estate?  The  case  of  a  total  failure  is  simple;  that  of 
a  partial  failure  presents  questions  of  greater  difficult}^;  and  in  dis- 
cussing this  branch  of  the  subject  it  will  be  expedient  to  consider 
separately  cases  arising  under  wills,  and  those  arising  under  deeds 
of  settlement  and  other  instruments  inter  vivos. 

§  1170.  A  Total  Failure. — AVhere  a  conversion  of  land  into  money 
or  of  money  into  land  is  directed,  either  by  a  will  or  by  an  instru- 
ment inter  vivos,  and  the  purposes  and  objects  for  which  such  con- 
version was  intended  totally  fail  before  the  directions  for  a  con- 
version are  carried  into  efifect,  the  property  thus  directed  to  be 
converted  will  remain  in  its  original  condition;  it  will  result  in  its 
original  unchanged  form  to  the  heirs  or  to  the  personal  representa- 
tives of  the  testator,  and  to  the  settlor,  or  to  his  heirs  or  his  personal 
representatives,  as  the  case  may  be.  If  land  is  to  be  sold  and  con- 
verted into  money,  the  property  results  as  real  estate  to  the  heirs ; 
if  money  is  to  be  paid  out  in  land,  the  fund  results  as  personal  estate 
to  the  personal  representatives.     This  rule  is  universal.^ 

'Ackroyd  v.  Smithson,  1  Brown  Cli.  503,  1  Lead.  Cas.  Eq.,  4th  Am.  ed., 
1171,  1181,  1107,  1  Scott  621,  3  Keener  977;  Clarke  v.  Franklin,  4  Kay  &  -T. 
257,  1  Scott  G28,  3  Keener  982;  Smith  v.  Claxton,  4  Madd.  484,  492,  1  Scott 
625,  3  Keener  979. 


§1176  EQUITY    JLUISI'KUDEXCE,  G8-J- 


SECTION  III. 

HECON  VERSION. 

ANALYSIS. 

§  1175.  Definition:     Rationale  of   the  doctrine. 

§  1176.  Who   may  elect   to   have  a   reconversion. 

§  1177.  Mode  of  election. 

§  1178.  Double   conversion. 

§  1175.  Definition — Rationale  of  the  Doctrine, — ^By  reconversion 
is  meant  "that  notional  or  imaginary  proee.ss  by  which  a  prior 
coustnictii-e  conversion  is  annnllecl  and  taken  away,  and  the  con- 
strnctirehi  converted  property  is  restored,  in  contemplation  of  a 
conrt  of  equity,  to  its  original  actual  quality."^  Thus  real  estate 
is  devised  upon  trust  to  sell  and  to  pay  the  proceeds  to  A.  By 
virtue  of  this  absolute  direction,  the  land  is.  in  equity,  converted 
into  personal  estate;  it  belongs  to  A  as  personalty.  It  may,  how- 
ever, be  made  A's  property  as  real  estate;  that  is,  A  may  prefer 
to  receive  it  in  its  original  unconverted  form  as  land.  In  that 
event  it  is  said  to  be  reconverted,  and  the  process  is  called  recon- 
version. The  rationale  of  this  doctrine  is  clearly  found  in  the 
right  which  every  absolute  owner  or  donee  has  to  dispense  Avith 
or  forbid  the  execution  of  any  trust'  in  the  performance  of  which 
lie  alone  is  interested.  Eeconversion  is  the  result  of  an  election 
expressly  made  or  inferred  by  a  court  of  equity.  It  depends 
wholly  upon  the  right  of  election  held  by  the  person  entitled 
to  the  property  to  choose  whether  he  will  take  the  property 
in  its  converted  condition  or  in  its  original  and  unconverted  form. 
The  whole  discussion  consists  of  answers  to  the  questions,  Who 
may  thus  elect?  and  how  may  such  an  election  be  made?- 

§  1176.  Who  may  Elect  to  have  a  Reconversion. — As  to  personal 
capacities,  the  party,  in  order  to  elect,  must  be  sui  juris,  or  at  least 
must  not  be  subject  to  any  incapacity  which  prevents  liim  from 
effectively   dealing  with   his   own  property.^     With   regard   to   the 

^  Haynes's  Onllines  of  Equity.  367. 

-  For  Anievican  authorities  on  the  general  doctrine  of  reconversion,  see  Rank 
of  rkiah  V.  Rice.   14.3  Cal.  26.5.  76  Pac.   1020.   101   Am.   St.  Rep.   118. 

^A  person  absolutely  entitled  and  sui  juris:  Prentice  v.  .lanssen.  70  X.  Y. 
47S.  1  Scott  639.  11.  &  P..  163.  Infants  cannot  elect,  hut  the  court  may.  for 
their  advantage.  See  Seeley  v.  Jago,  1  P.  Wms.  3S0.  1  Scott  63.1:  Carr  v. 
Ellison.  2  Brown  Ch.  56;  Van  v.  Barnett.  10  Ves.  102;  Robinson  v.  Robinson, 
19  Beav.  404:  In  re  Harrop.  3  Drew.  726.  734.  Lunatics  cannot.  Married 
Women:  In  this  country  a  married  woman  can  doubtless  elect  by  means  of  any 


(unb  KECOX\EKSIOX.  ^  1177 

nature  and  quantity  of  interest  which  must  be  owned  in  order 
that  the  party  may  effect  a  reconversion,  if  he  is  entitled  to  the 
whole  absolute  interest  in  possession,  either  to  the  laud  to  be  sold 
for  money,  or  to  the  money  to  be  laid  out  in  land,  then  he  may, 
of  course,  elect,  since  his  election  could  affect  no  other  person's 
rights.  If  he  owns,  not  the  whole  subject-matter  but  only  an 
undivided  share  or  a  partial  interest,  the  general  rule  is  settled 
that  he  may  elect,  and  can  only  elect,  when  such  election  could 
not  by  possibility  injuriously  affect  the  rights  and  interests  of 
those  who  are  associated  with  him  in  the  total  ownership  as  co- 
owners,  life  tenants,   rcmaindonnon,   reversioners,   and    the  like.- 

§  1177,  Mode  of  Election. — It  being  assumed  that  the  party 
entitled  to  the  property  has  the  capacity  to  elect  to  receive  it  in 
its  unconverted  form,  and  thus  to  eft'ect  a  reconversion,  the  further 
question  remains,  how  such  election  must  or  may  he  made.  An 
express  declaration  of  the  intention  in  language  is  always  suffi- 
cient, but  is  not  necessary.^  An  election  may  be  inferred  from 
acts  or  writings.  Any  act  or  writing  which  shows  an  uneciuivoeal 
intention  to  possess  the  property  in  its  actual  state  and  condition 
will  amount  to  a  valid  election. - 

in>;tninient  siifHcient  to  enable  her  to  convey  real  estate.  See  Howell  v.  Tomp- 
kins, 42  N.  .J.  Eq.  305,  11  Atl.  3.3.3. 

^A  co-owner:  ^Vhen  the  direction  is  to  turn  land  into  money,  one  co-owner 
cannot  elect  to  keep  Ma  share  in  land.  The  others  are  entitled  to  have  their 
share  sold  so  as  to  receive  the  money,  and  plainly  the  sale  of  an  undivided 
share  of  the  land  would  produce  a  comparatively  less  amount  than  w'ould 
result  from  a  sale  of  the  whole:  Deeth  v.  Hale,  2  Molloy  317,  1  Scott  641; 
Fletcher  v.  Ashburner,  1  Brown  Ch.  497,  500,  1  Scott  606.  On  the  contrary,  when 
the  direction  is  to  lay  out  money  in  land  for  co-owners,  one  co-owner  can 
elect  to  take  his  share  in  money;  for  thi.s  would  plainly  produce  no  injury 
to  the  others:     Seeley  v.  Jago,  1  P.  Wms.  389,  1  Scott  635. 

'Bradish  v.  Gee.  Amb.  229,   1   Scott  636. 

=  Prentice  v.  .Janssen,  70  N.  Y.  478,  1  Scott  639,  H.  &  B.  163;  Bank  of  Ukiali 
V.  Ptice,   143  Cal.  265,  76  Pac.   1020,   101  Am.  St.  Rep.   118. 


j^  1179  EQUITY    JLl-asrUUDEXCE.  (-^Sti 


CHAPTER    FIFTH. 

MORTGAGES  OF  LAND. 


SECTION  I. 
THE  ORIGINAL  OR   ENGLISH  DOCTRINE. 

ANALYSIS. 

§  1179.  The   comuion-law    doctrine:    Statute    of    7    (ieo.    II.,    c.    20. 

§  1180.  Origin    and    development    of   the   equity   jurisdiction;    the   '"'equity 

of    redemption." 

§  1181.  The  equitable  theory 

§  1182.  The  double  system  at  law  and  in  equity. 

§  1183.  The  legal  and  the  equitable  remedies. 

§  1184.  Peculiarities   of   the   English   system. 

§  1185.  Subsequent   mortgages   equitable,  not   legal. 

§  1179.  The  Common-law  Doctrine. — In  no  other  department 
luis  the  equity  jurisprudence  as  administered  in  this  country  de- 
parted so  widely  from  that  administered  in  England  as  in  the  de- 
partment Avhich  is  concerned  with  mortgages,  and  the  respective 
rights,  liabilities,  and  remedies  of  the  mortgagor  and  the  mortgagee. 
No  correct  notion  can  be  obtained  of  equity  as  it  now  exists  with- 
in the  United  States  without  an  accurate  and  full  appreciation  of 
these  ditferences.  At  the  common  law  the  ordinary  mortgage  was 
to  all  intents  and  purposes  a  conveyance  of  the  legal  estate.  A 
mortgage  in  fee  immediately  vested  the  mortgagee  with  the  legal 
title,  subject,  however,  to  be  defeated  by  the  mortgagor's  perform- 
ing the  condition  by  paying  the  money  upon  the  prescribed  pay- 
day. If  on  that  very  day  the  mortgagor  performed  the  condition 
by  paying  the  money,  he  thereby  put  an  end  to  the  mortgagee's 
estate;  the  legal  estate  was  revesfed  in  himself,  and  with  it  he  had 
the  right  at  once  to  re-enter  upon  the  land,  and  to  recover  it.s  pos- 
session by  an  appropriate  action  at  law.  But  if  the  mortgagor  for 
any  reason  suffered  the  pay-day  to  go  by  without  paying  or  tender- 
ing the  amount  due.  all  his  right  was  utterly  and  forever  lost:  the 
estate  of  the  mortgagee,  which  had  before  been  upon  condition,  now 
became  absolute,  with  all  the  features  and  incidents  of  absolute 
legal  ownership.  This  purely  legal  theory  of  the  mortgage  has  con- 
tinued in  force  in  England  to  the  present  day,  until  the  existing 


687  MORTGAGKS  :      THE     EXGLISH     DOCTIJIXE.  §  llSO 

judicature  act  went  into  operation  ;*  and  during  that  interval  it  has 
constantly  prevailed  and  been  acted  upon  in  the  English  courts  ot* 
law  Avithout  modification  except  that  introduced  by  a  statute  pas- 
sed during  the  reign  of  George  II.-  This  statute  has  always  been 
strictly  construed,  and  held  applicable  only  in  the  cases  mentioned 
by  its  express  terms,  where  a  suit  at  law  is  brought  by  the  mort- 
gagee." 

§  1180.  Origin  and  Development  of  the  Equity  Jurisdiction. — 
The  *  "Equity  of  Redemption." — As  this  common-law  doctrine.  Avith 
all  of  its  accompanying  incidents,  was  exceedingly  harsh  in  its 
oj>cration;>  and  often  worked  grievous  wrong  to  mortgagors,  equity 
interfered,  and  by  degrees  built  up  a  distinct  theory  of  mortgages 
which  is  one  of  the  most  magnificent  triumphs  of  equity  .juris- 
prudence. The  basis  of  this  system  was  the  fundamental  maxim 
that  equity  looks  at  the  intent,  rather  than  the  form,  and  the  re- 
sulting general  principle  that  equity  could  and  should  relieve  against 
legal  penalties  and  forfeitures,  when  the  person  in  whose  behalf 
the}'  were  enforced  could  be  fairly  and  sufficiently  compensated  by 
an  award  of  money.^  As  early  as  the  reign  of  James  I.  the  court 
of  chancery  had  begun  to  relieve  the  mortgagor;  and  in  the  reign 
of  Charles  I.  his  right  to  redeem  after  a  failure  to  perform  the  con- 
dition— that  is,  to  come  in  and  pay  the  debt  and  interest  and  recover 
the  land  after  the  pay-day — had  become  fully  established  and 
recognized  as  a  part  of  the  equity  jurisprudence.-  This  equitable 
right  of  the  mortgagor  was  termed  his  "ec[uity  of  redemption."' 
Avhieh  is  simply  an  abbreviation  of  his  "right  to  redeem  in  equity." 
At  first  this  right  of  the  mortgagor  was  regarded  as  a  mere  right 
or  thing  in  action;  and  at  the  close  of  the  reign  of  Charles  II.  the 
equity  of  redemption  was  said  to  be  a  mere  right  to  recover  the  land 
in  equity  after  a  failure  to  perform  the  condition,  and  not  to  be  an 

>  See  this  act,  36  &  37  Vict.,  c.  66,  sees.  24,  25,  ante,  §  40,  note  1. 

-7  Geo.  11.,  c.  20.  This  statute  enacted  that  when  an  action  at  hiw  was 
hrnnght  on  the  bond,  or  ejectment  to  recover  possession  of  the  hind  on  tlie 
mortgage,  the  mortgagor  might,  pending  the  suit,  pay  to  the  mortgagee  the 
debt,  interest,  and  all  costs  expended  in  any  suit  at  law  or  in  equity;  or,  in  case 
of  a  refusal  to  accept  the  same,  might  bring  such  money  into  court  where  the 
action  was  pending,  which  moneys  so  paid  or  brought  into  court  wore  declared 
to  be  a  satisfaction  of  the  mortgage,  and  the  court  was  required  to  compel, 
by  an  order  of  the  court,  the  mortgagee  to  assign,  surrender,  or  reconvey  tlic 
mortgaged  premises  to  the  mortgagor.  This  statute  has  been  substantial! \- 
re-enacted   in  several  of  the  American  states. 

=  Shields  v,  Lozear,  34  N.  J.  L.  496,  3  Am.  Rep.  256.  Kirch.  728. 

'  See  ante,  §§  378,  381,  382,  433.  where  this  maxim  and  its  effects  are  explained. 

=■  Emanuel  College  v.  Evans,  1  Rep.  in  Ch.  18,  1  Scott  31,  Kirch.  704;  1  Jones 
on  ilortgages,  sees.  6,  7. 


§  1182  E(iUlTY    JUIUSlTvUDEXCK.  GS8 

'!>>tate  in  the  land.^  This  narrow  view,  however,  was  soon  abandoned-, 
the  equitable  theory  was  developed  and  became  more  consistent  and 
complete,  until,  in  1737,  Lord  Hardwicke  laid  down  the  doctrine  as 
alread}^  established,  and  Avhich  has  since  been  regarded  as  the  very 
central  conception  of  the  equitable  theory  that  an  equity  of  re- 
demption is  (in  equity)  an  estate  in  the  land  which  may  be  de- 
vised, granted,  or  entailed  with  remainders;  that  it  cannot  be  con- 
sidered as  a  mere  right  only,  but  such  an  estate  whereof  there  may 
be  a  seisin ;  and  that  the  person  therefore  entitled  to  the  equity  of 
redemption  is  considered  as  the  owner  of  the  land,  and  a  mortgage 
in  fee  is  considered  as  personal  assets.* 

§  1181.  The  Equitable  Theory. — While  the  mortgagee  is  still  re- 
garded at  law  as  vested  with  the  legal  title  followed  by  all  of  its 
incidents,  the  following  general  theory  is  established  as  a  part  of 
the  equity  jurisprudence.  The  mortgagor,  both  after  and  before 
a  breach  of  the  condition,  is  regarded  as  the  real  owner  of  the  land 
subject  to  the  lien  of  the  mortgage,  and  liable  to  have  all  his  estate, 
interest,  and  right  finally  cut  olf  and  destroyed  by  a  foreclosure. 
Prior  to  such  foreclosure,  he  is  vested  with  an  equitable  estate  in 
the  land  which  has  all  the  incidents  of  absolute  ownership;  it  may 
be  conveyed  or  devised,  will  descend  to  his  heirs,  may  be  cut  up  into 
lesser  estates,  and  generally  may  be  dealt  with  in  the  same  manner 
as  the  absolute  legal  ownership,  always  subject,  however,  to  the  lien 
of  the  mortgage.  On  the  other  hand,  the  mortgage  is  regarded 
primarily  as  a  security;  the  debt  is  the  principal  fact,  and  the  mort- 
gage is  collateral  thereto;  the  interest  which  it  confers  on  the  mort- 
gagee is  a  lien  on  the  land,  and  not  an  adate  in  the  land;  it  is  a 
thing  in  action,  and  may  therefore  be  assigned  and  transferred  with- 
out a  conveyance  of  the  land  itself;  it  is  personal  assets,  and  on  the 
death  of  the  mortgagee  it  passes  to  his  executors  or  administrators, 
and  not  to  his  heirs. ^ 

§  1182.  The  Double  System  at  Law  and  in  Equity. — As  these  two 
conflicting  theories  have  existed  side  by  .side,  it  follows  that  the 
rights,  lial)ilities,  and  remedies  of  the  mortgagor  and  mortgagee  in. 
England  have  been  very  different  when  administered  by  the  courts 
of  law  or  the  court  of  chancery.  In  law,  the  mortgagee  is  clothed 
with  the  entire  legal  estate,  while  the  mortgagor  has  no  estate  what- 
ever, and  after  a  default  no  right  except  that  given  by  the  statute, 
m.entioned  in  a  former  paragraph.^     In  equity,  the  mortgagee  has 

^Eoscarrick  v.  Barton,  1  Cas.  in  Cli.  217,  1  Soott  .32;  1  Jones  on  Mortsjages, 
sec.    6. 

M'ashonie  v.   Scarfe,   1   Atk.   00.3,   1   Sfott  .S3.  Shep.  213. 
"  3  A\  aslilnirn  on  Real  Property,  c.  16,  sec.  4. 
'  See  ante,  sec.  1179. 


GSd  ■\iouT(5A(;i:s:    the   English   doctrine.  §11^-5 

no  estate,  but  only  a  lien;  while  the  mortgao'oi*  is  clothed  with  the 
e«iuitable  estate  called  the  "equity  of  redemption,"  which  is  to  all 
ii.tents  and  purposes  the  full  ownership,  except  that  it  is  subject  to 
be  cut  ott'  and  destroyed  by  a  proceeding  to  enforce  the  mortgage. 
It  should  be  carefully  noticed  that  by  this  theory  the  mortgagor's 
estate  is  AvhoUy  an  equitable  one;  neither  in 'equity  nor  at  law  is  lie 
regarded  as  retaining  the  legal  estate.  In  law,  the  mortgagee  is  en- 
titled to  possession  of  the  land  even  before  the  condition  is  broken, 
and  may  recover  such  possession  upon  his  legal  title,  either  before 
or  after  condition  broken,  in  an  action  of  ejectment  against  the  mort- 
gagor, or  against  any  other  person  not  having  a  paramount  title; 
while  the  mortgagor  cannot  maintain  ejectment  for  the  possession 
•even  against  a  third  person,  since  the  legal  title  is  outstanding  in 
the  mortgagee  and  a  plaintiff  can  recover  in  ejectment  only  upon 
the  strength  of  his  own  legal  title.-  In  equity,  neither  the  mort- 
gagee nor  tlie  mortgagor  can  maintain  an  action  for  the  mere  pos- 
session, since  that  remed}^  is  -wholly  a  legal  one ;  but  the  mortgagor 
may  maintain  a  suit  to  redeem  from  the  mortgagee  in  possession, 
and  having  thus  redeemed  is  entitled  to  a  reconveyance  and  delivery 
of  possession.  In  law,  the  mortgagee  may  convey  the  land  itself 
hy  deed,  or  devise  it  by  will,  and  on  his  death  intestate  it  will  de- 
scend to  his  heirs.  In  equity,  his  interest  is  a  mere  thing  in  action 
assignable  as  such,  and  a  deed  of  the  land  by  him  would  operate 
merely  as  an  assignment  of  the  mortgage ;  and  in  administering  the 
estate  of  a  deceased  mortgagee,  a  court  of  equity  treats  the  mortgage 
as  personal  assets,  to  be  dealt  with  by  the  executor  or  administrator.^ 
§  1183.  The  Legal  and  Equitable  Remedies. — The  mortgagee  can 
avail  himself  of  both  legal  and  equitable  remedies;  he  may  sue  at 
law  for  the  debt,  or  recover  possession  of  the  land  bv  ejectment,  or 
resort  to  the  equitable  remedy  of  foreclosure.  As  a  matter  of  fact, 
the  mortgagee,  in  England,  ordinarily  enforces  his  security,  upon 
the  mortgagor's  default,  by  obtaining  possession  of  the  land  and 
appropriating  the  rents  and  profits.  This  possession  he  acquires 
either  by  voluntary  surrender  from  the  mortgagor  or  by  a  recovery 
in  ejectment.  Having  obtained  the  possession,  he  may  by  a  snit 
in  ecpiity  cut  of^'  and  destroy  the  mortgagor's  estate  or  equity  of 

-The  Enelish  law  is  strictly  logical  in  these  conclusions,  but  the  American 
Icfl'il  theory,  by  a  curious  inconsistency,  rejects  them.  The  diflference  between 
the  Kn-jclish  lepil  theory  and  the  American  Ie<^al  theory  in  this  respect  should 
be  carefully  noted.  Even  in  those  states  which  have  preserved  the  lenjal  and 
the  equitable  theories  distinct,  and  which  have  to  some  extent  adopted  the. 
Knjrlish  system,  tlie  lecal  tiieory  has  been  more  or  less  modified  b.y  the  equity 
doctrines. 

^  1  \A  asiiburn  on  Real  Property,  e.  IG,  sec.  4,  pars.  10-14,  34:  Barrett  v. 
Hinckley,  124  111.  32,  14  N.  E.  SG.3,  7  Am.  St.  Rep.  331,  Kirch.  034,  H.  &  B.  5.57. 
44 


§  1185  EQUITY    Jt'RISPRUDEXCE.  690 

redemption  by  a  decree  for  a  strict  foreclosure.  The  method  of 
foreclosing  by  a  decree  for  a  sale  of  the  premises,  which  so  generally 
prevails  in  the  United  States,  is  very  seldom  adopted  in  England. 
The  mortgagee  having  obtained  possession  either  by  voluntary  sur- 
render, b}^  entry,  or  by  ejectment,  the  mortgagor  may  regain  his 
title  by  means  of  the  equitable  suit  for  a  redemption,  whereby  the 
mortgagee  is  compelled  to  account  for  the  rents  and  profits  which 
he  has  received,  the  amount  due  to  him  is  fixed,  and  on  its  payment 
the  interest  of  the  mortgagee  is  ended,  and  the  mortgagor  becomes 
entitled  to  a  reconveyance  and  the  possession.^ 

§  1184.  Peculiarities  of  the  English  System. — The  peculiarity  of 
this  double  system  should  be  remarked  :  that  while  equity  has  care- 
fully built  up  its  own  theory,  so  differont  in  all  points  from  that* 
prevailing  at  law,  it  has  never  attempted  to  interfere  directly  with 
the  legal  doctrines,  nor  have  the  law  courts  modified  their  own  legal 
theory  by  vohuitaril}'  introducing  equitalile  notions.  The  two 
theories  have  stood  side  by  side,  each  administered  by  its  own  tri- 
bunals as  though  the  other  had  no  existence.  Equity  has  so  re- 
frained from  any  direct  invasion  of  the  legal  domain,  that  when- 
ever a  mortgagor  has  redeemed  after  a  default,  either  by  a  payment 
of  the  debt  voluntarily  accepted  or  by  means  of  a  decree  in  a  suit 
to  redeem,  the  legal  title  does  not  thereby  return  to  the  mortgagor; 
having  once  been  vested  in  the  mortgagee,  it  can  only  be  restored 
to  the  mortgagor  by  a  legal  conveyance.  After  a  redemption  oE  any 
kind,  therefore,  a  deed  from  the  mortgagee  to  the  mortgagor  is 
necessary  to  invest  the  latter  with  the  full  legal  title,  and  a  decree 
in  a  suit  for  redemption  directs  such  a  conveyance  to  be  executed 
as  the  only  means  of  restoring  the  mortgagor  to  his  original  legal 
estate.^ 

§  1185.  Subsequent  Mortgages  Equitable.— Another  striking,  but 
strictly  logical,  result  of  the  system  exists  when  the  same  mortgagor, 
being  originally  the  legal  owner,  gives  successive  mortgages  on  the 
same  land  to  different  persons,  Avhich  are  all  outstanding  together. 
If  the  legal  owner  in  fee  gives  a  first  mortgage  in  fee  to  A,  he 
thereby,  as  has  been  shown,  conveys  the  entire  legal  estate,  and  A 
becomes  vested  with  the  legal  title;  and  it  is  then  impossible  for 
the  mortgagor  to  convey  the  legal  estate  to  other  persons  by  any 
subsequent  deed  or  mortgage  while  the  prior  mortgage  to  A  is  out- 
standing, for  he  does  not  himself  hold  such  legal  estate.  If,  there- 
fore, the  mortgagor  executes  any  subsequent  mortgage  or  morto-ages 
to  B,  C,  D,  upon  the  same  land,  these  subsequent  mortgagees  do 
not  thereby  obtain   the  legal  estate;  they  are  not  regarded,  even 

M   Washburn  on  Real  Propert}'.  c.  Ifi,  sec.  5,  pars.  IG-IS. 
^1   Washburn  on  Real  Property,  c.  16,  sec.  5,  pars.  10-18, 


691  MORTnAGEs:    Tin:  A:\ri:incAX   doctrixi:.  I^  1180 

by  courts  of  law,  as  vested  witli  a  leual  title;  their  estate  and  title 
are  purely  equitable,  and  such  subsequent  mortgages  are  in  every 
sense,  even  in  courts  of  law,  regarded  and  treated  as  cquiiahlo  and 
not  legal  mortgages.  The  same  doctrine  is  expressed  by  the  state- 
ment that  a  mortgage  of  the  equity  of  redemption  is  necessarily 
an  equitable  mortgage.^ 


SECTION  II. 

THE  AMERICAN  DOCTRINE. 

ANALYSIS. 

§   11S6.  In   general:    Two   methods   prevailing. 

§   11S7.  First  method:    Both  the  legal  and  the  equitable  theories;   states 

arranged   alphabetically   in   foot-note. 
§   1188.  Second   method:   The  equitable  theory   alone;    states   arranged   in 

foot-note. 
§   1180.  The   same:    The    mortgagee    in   possession. 
§   1190.  The   same:    Equitable    remedies    of   the    parties. 
§   11  PI.  Definition    of   mortgage. 

§  1186.  In  General — Two  Methods  Prevailing. — The  English  sys- 
tem, with  the  two  theories,  legal  and  equitable,  standing  so  opposed 
to  each  other  in  every  point,  and  each  complete  in  itself,  has  not  been 
wholly  adopted  in  any  of  our  states.  The  equitable  principles  have 
])enetrated  the  legal  theory,  and  more  or  less  modified  it  in  every 
state.  The  result  i?,  that  even  in  those  states  which  preserve  the 
legal  theory  at  all.  and  regard  the  mortgage  as  in  any  sense  convey- 
ing a  legal  estate,  many  of  the  incidents  of  such  legal  title  are 
abandoned:  the  mortgagee  is  the  legal  owner  only  for  certain  pur- 
poses and  to  a  certain  extent, — the  legal  owner  as  between  himself 
and  the  mortgagor, — clothed  with  the  legal  title  only  so  far  as  is 
considered  necessary  to  preserve  the  mortgage  as  a  valid  security ; 
Avhile  for  all  other  purposes,  and  as  against  all  other  persons  not 
claiming  under  or  through  the  mortgagee,  the  mortgagor  is  regarded, 
even  at  law,  as  retaining  the  legal  estate  with  all  of  its  incidents  and 
qualities.^     The  courts  and   legislatures  of  nearly   one-half  of  the 

'By  a  strange  inconsistency,  this  logical  result  of  the  legal  theory  is  rejected 
by  the  courts  of  those  states  which  have  adopted  the  double  system  of  law  and 
of  equity  concerning  mortgages;  and  they  hold  that  in  a  series  of  prior  and 
subsequent  mortgages  each  and  every  mortgagee  obtains  the  legal  estate.  Tliis 
is  one  of  the  marked  differences  between  the  lecjal  system  in  England  and  that 
prevailing  in  American  states. 

'  This  conception  of  the  mortgage  is  undoubtedly  illogical  and  anomalous, 
a  hybrid  union  of  legal  and  equitable  doctrines,  and  even  more  confusing 
than  the  shnri)ly  defined  double  system  of  the  English  jurisprudence.     Such   a 


§1187  EQUITY    JLKlSri;UDEXCE.  ()d2 

states  have  taken  a  further  step,  and  by  adopting-  the  equitable 
theory  alone  have  completely  reversed  the  positions  occupied  b}^ 
the  mortgagor  and  the  mortgagee  under  the  English  system.  In  tlie 
jurisprudence  of  the  various  states  and  territories  of  this  country, 
two  differing  conceptions  of  the  total  nature  and  effect  of  mortgages 
now  exist, — two  distinct  modes  of  regarding  and  reguhiting  the 
rights,  liabilities,  and  remedies  of  the  parties.  These  two  methods 
must  be  separately  described,  and  the  states  adopting  them  must 
be  arranged  in  two  corresponding  classes. 

§  1187.  First  Method — Both  the  Legal  and  the  Equitable  Theories. 
— The  essential  feature  of  this  system,  adopted  by  the  courts  of  all 
the  states  in  which  the  system  prevails,  is  the  doctrine  that  as 
between  the  mortgagor  and  the  mortgagee,  the  mortgagee  acquires 
and  holds  the  legal  estate  at  Jaw,  while  the  estate  of  the  mortgagor — 
his  equity  of  redemption — is  entirely  an  equitable  estate.  To  this 
extent  the  system  agrees  with  that  prevailing  in  the  English  courts ; 
but  this  agreement  is  only  partial.^  In  all  the  states  w^hich  have 
adopted  the  method,  the  mortgagor  ivhilc  in  possession  is  considered, 
;it  law  as  well  as  in  equity,  both  after  and  before  a  breach  of  the 
cnudition,  to  be  the  legal  owner  as  against  all  persons  except  the 
iMortgagee  and  those  claiming  under  him ;  and  in  most  of  the 
states  he  is  regarded,  against  all  such  persons,  as  the  legal  owner, 
and  as  entitled  to  the  possession,  although  he  ma}^  not  be  in  actual 
possession.  The  mortgage  being  a  conveyance  of  the  legal  estate, 
and  not  a  mere  lien  between  the  immediate  parties  thereto,  the 
mortgagee  is  entitled  to  the  possession  of  the  premises,  at  least 
after  the  condition  is  broken,  and  may  recover  such  possession  from 
the  mortgagor  by  a  legal  action;  but  in  many,  and  even  in  most, 
of  these  states' the  mortgagor  may  retain  the  possession  until  a 
(Icfaidt  is  made.  In  respect  to  the  foregoing  essential  features  there 
is  a  general  agreement  in  the  jurisprudence  of  all  the  states  which 
compose  this  tirst  class;  but  with  regard  to  other  and  incidental 
matters  there  is  a  divergence  in  their  rules  which  prevents  any  fur- 
tlier  generalization.  It  should  be  added,  however,  that  in  most  of 
ibese  states  the  equitable  theory  is  the  one  which  chiefly  prevails 
in  practice;  mortgagors  are  ordinarily  left  in  possession  and  treated 

result  necessarily  follows  from  the  action  of  courts  in  admitting  equitable 
])rinciples  to  be  blended  Avitli  the  legal  dogmas,  but  without  accepting  those 
])riiiciples  in  all  their  length  and  breadth,  and  abandoning  wholly  the  legal 
tiieory  maintained  bj-  the  English  courts  of  law.  This  last  step,  when  taken, 
])roduces  a  system  single,  uniform,  consistent,  and  just. 

'As  illustrations  of  this  class,  see  Barrett  v.  Hinckley,  124  111.  32,  14  X.  E. 
S(i.=?,  7  Am.  St.  Rep.  3.S1,  Kirch.  634,  H.  &  B.  .557;  Ewer  v.  Hobbs.  5  Met. 
],  3:  Howard  v.  Robinson,  .">  Cush.  Hi),  123;  Shields  v.  Lozear.  34  N.  J.  L. 
4!)(;,  3  Am.  Rep.  2.5(1,  Kirch.  728;  Trj'on  v.  Munson,  77  Pa.  St.  250. 


€93  MORT(!A(iKs:    Tin:  a.mkimcax   doctuixi:.  §1188 

as  the  owners,  and  the  common  remedy  of  the  mort^'agee  is  a  de- 
cree of  foreclosure  and  for  the  sale  of  the  mortgaged  premises.  In 
a  few  states,  hovvever,  it  is  customary  for  the  mortgagee  to  recover 
possession,  by  action  at  law  if  necessary,  and  to  cut  off  the  mort- 
gagor's equity  of  redemption  by  a  strict  foreclosure.  The  states 
which  have  adopted  this  method  in  its  substantial  elements  arc 
Alabama,  Arkansas,  Connecticut,  Delaware,  Illinois,  Kentucky, 
]\Taine,  Maryland,  AFassaehusetts,  Mississippi,  Missouri,  New  Hamp- 
shire, New  Jersey,  North  Carolina,  Ohio,  Pennsylvania,  Rhode  Is- 
land, Tennessee,  Vermont,  Vii-ginia,  and  West  Virginia. 

§  1188.  Second  Method— The  Equitable  Theory  Alone.— In  this 
method  of  treating  mortgages,  the  conflict  between  the  legal  and 
the  equitable  conceptions  is  entirely  removed.  Partly  through  the 
adoption  of  equitable  doctrines  by  the  law  courts,  and  partly  through 
the  operation  of  statutes,  the  legal  theory  of  mortgages  has  been 
abandoned,  and  the  equity  theory  has  been  left  in  full  force,  fur- 
nishing a  single  and  uniform  collection  of  rules  recognized  and  ad- 
ministered, so  far  as  necessary,  alike  by  courts  of  law  and  of  equity.^ 
The  mortgas-e  is  liot  a  conveyance,  nor  does  it  confer  upon  the 
mortgagee  any  estate  in  the  land.  It  creates  a  lien  on  the  land,  or, 
in  the  apt  language  already  quoted,  a  "a  potentiality  to  follow  the 
land  by  proper  process,  and  condemn  it  for  payment"  of  the  debt. 
The  debt  is  the  principal  fact,  and  the  mortgage  is  wholly  incident- 
al or  collateral  thereto,  and  intended  to  secure  its  payment.  Tlie 
.right  or  interest  of  the  mortgagee  from  being  a  legal  estate  is 
changed  into  an  etiuitable  right  enforceable  by  an  equitable  proceed- 
ing; it  is  for  aU  purposes  and  under  all  circumstances  personal  as- 
sets; it  may  be  assigned,  and  passes  to  the  mortgagee's  personal  rep- 
resentatives on  his  death.  The  mortgagee  is  not  entitled  to  posses- 
sion of  the  mortgaged  premises,  and  can  maintain  no  legal  action 
for  their  recovery,  either  before  or  after  a  breach  of  the  condition  ; 
in  fact,  the  mortgagor's  default  produces  no  change  in  the  rela- 
tions of  the  parties  or  in  the  nature  of  their  respective  interests, 
except  that  the  mortgagee  thereupon  becomes  enabled  to  enforce 
his  lien  by  a  proceeding  of  foreclosure.  The  mortgagee's  interest 
being  a  mere  lien,  it  is  wholly  destroyed,  and  the  mortgagor's  estate 
is  left  free  and  unencumbered,  by  a  payment  of  the  debt  secured 
by  it  at  any  time  before  the  premises  are  actually  sold  under  a  de- 

'As  illustrations  of  this  class,  see  McMillan  v.  Richards,  9  Cal.  3G5,,  407,  70 
Am.  Dec.  635,  and  Button  v.  Warschaner,  21  Cal.  609,  621,  82  Am.  Doc.  7(5.1, 
per  Field,  C.  J.;  Chick  v.  Willetts.  2  Kan.  384.  391,  H.  &  B.  SSo :  .Jackson  v. 
JJronson,  19  Johns.  325,  Kirch.  629  (before  the  complete  adoption  of  the 
equitable  theory  alone);  Astor  v.  Hoyt,  5  Wend.  603.  Kirch.  292:  Trinim  v. 
:\Iarsh,  .54  X.  V.  599,  13  Am.  Rep.  623.  Kirch.  299;  Hubbell  v.  Moulson, 
53  !s.  Y.  225,  13  Am.  Rep.  519,  Kirch.  334. 


§   1189  EQUITY    JL'ia.srRlDEN'CE.  694: 

cree  of  foreclosure;  the  estate  does  not  then  reved  in  the  mortgagor, 
«ince  it  has  never  gone  out  of  him.  On  the  other  hand,  the  mortgag- 
or's interest,  instead  of  being  an  equitable  estate,  or  right  in  equity 
to  redeem  the  land  from  the  mortgagee's  ownership,  is.  for  all 
]>urposes,  under  all  circumstances,  and  between  all  parties,  the  legal 
estate,  with  all  the  incidents  and  qualities  of  legal  ownership,  but 
at  the  same  time  encumbered  by  or  subject  to  the  lien  of  the  mort- 
gage, and  liable,  therefore,  to  be  cut  oft'  and  divested  by  a  sale 
under  a  decree  of  foreclosure  if  the  debt  is  not  paid  according  to 
ihe  terms  of  the  mortgage.  It  is  an  entire  misuse  of  language  to 
apply  the  name  "equity  of  redemption"  to  this  legal  estate  of  the 
mortgagor;  and  the  continued  employment  of  the  phrase  in  the 
legal  nomenclature  of  the  states  which  have  adopted  this  theorj-  of 
the  mortgage  is  to  be  regretted,  since  it  is  the  occasion  of  constant 
misapprehension  and  confusion  of  thought.-  It  is  the  natural  and 
inevitable  result  of  this  system  that  in  all  the  states  where  it  pre- 
vails the  mortgagor  is  not  ordinarily,  under  ordinary  circumstances, 
compelled  to  apply  to  a  court  t)f  equity  for  relief.  Being  entitled 
to  retain  possession  of  the  premises  after  a  default,  he  is  generally 
in  a  position  to  act  on  the  defensive,  and  is  not  obliged  to  bring  a 
suit  in  equity  for  a  redemption.  On  the  other  hand,  the  mortgagee, 
not  being  permitted  to  recover  possession  and  hold  the  land,  is 
compelled  to  enforce  his  lien  by  a  suit  in  equity,  in  Avhich  he  obtains 
a  decree  for  a  sale  of  the  mortgaged  premises.  In  several  of  the 
states,  the  remedy  of  a  strict  foreclosure  has  been  denied  to  him  by' 
statute.  The  mode  of  treating  the  mortgage  thus  described  has 
been  adopted  in  the  following  states  and  territories:  California, 
Colorado,  Dakota,  Florida,  Georgia,  Indiana,  Iowa,  Kansas,  I^ouis- 
iana,  iMichigan,  Minnesota,  Nebraska,  Nevada,  New  York,  Oregon, 
South  Carolina,  Texas.  Utah,  and  Wisconsin.^ 

§  1189.  The  Mortgagee  in  Possession  under  This  Method.— The 
foregoing  system,  as  it  is  administered  in  many  of  the  states,  con- 
tains one  apparent  inconsistency  which  requires  a  brief  explanation. 
While  the  mortgagee  is  declared  to  have  no  legal  estate,  and  is 
unable  to  recover  possession  of  the  land  against  an  unwilling  mort- 
gagor or  owner  of  the  fee  subject  to  the  mortgage,  yet  if  the  mort- 
gagee, while  the  mortgage  is  still  subsisting,  does  in  any  lawful 
manner  obtain  possession,  the  courts  have  established  the  doctr-ine 
that  his  interest  under  the  mortgage  enables  him  to  retain  such 
]>ossession,  and  lo  defend  it  against  the  mortgagor  or  those  succeed- 
ing to  Ills  title.  In  other  Avords,  the  mortgagor  is  not  permitted  to 
recover  back  the  possession,  in  an  action  at  law,  upon  the  strength 

-See  (^hiek  v.   Willetls.  2  Kan.   3S4.H.  &   P..   5.-)5.  ]..'r  ("rozior.   C.   J. 
*  To  tliese  niiijlit  iicrhaps  Ix^  added  Delaware,  Mississippi,  and   Missouri. 


695  mortgages:    the  amhkicax   doctrixe.  §  1190 

of  his  own  acknowledged  legal  estate ;  but  his  only  remedy  is  in 
equity  by  a  suit  to  redeem.  Undoubtedly  this  doctrine,  when  first 
admitted,  was  the  result  of  the  old  common-law  notions  still  linger- 
ing in  the  minds  of  the  judges  before  the  purely  equitable  theory 
had  become  fully  developed ;  but  it  is  certainly  difficult  to  reconcile 
the  doctrine,  on  principle,  with  this  theory.  The  more  recent  de- 
cisions have  perceived  and  admitted  the  incongruity;  and  the  courts, 
while  retaining  the  doctrine  as  settled,  have  guarded  against  any 
inference  from  it  that  the  mortgagee  has  acquired  a  legal  estate  by 
his  possession ;  his  right  to  retain  possession  does  not  depend  upon 
an  estate  held  by  him;  his  possession  is  protected  by  his  lien.  It  is 
certainly  more  simple  and  just  that  the  mortgagee  should  be  left 
in  possession,  and  the  mortgagor  forced  to  redeem,  than  that  the 
mortgagor  should  be  permitted  to  recover  the  possession  by  an  ac- 
tion at  law,  and  be  immediately  liable  to  the  consequences  of  a  fore- 
closure suit  in  equity  brought  by  the  mortgagee.^ 

§  1190.  Equitable  Remedies  of  the  Parties  under  This  Method. — 
It  is  plain  from  the  foregoing  outline  that  in  the  commonwealths 
named  in  the  second  division  a  complete  revolution  has  been  wrought 
in  the  equity  jurisprudence  concerning  mortgages.  According  to 
the  original  theory  as  it  has  been  administered  in  England  and  in  a 
iiortion  of  the  states,  the  estate  of  the  morigafjov  being  wholly  equi- 
table, the  jurisdiction  of  equity  deals  chiefly,  almost  exclusively, 
with  his  interests,  by  protecting  his  rights,  by  enabling  him  to 
redeem  the  land  from  the  mortgagee,  and  by  compelling  a  recon- 
veyance of  the  legal  title  which  had  been  forfeited  by  his  failure 
to  perform  the  condition,  and  by  thus  putting  him  in  a  position 
to  regain  the  possession.  On  the  other  hand,  the  mortgagee,  being 
vested  w^ith  the  legal  estate  by  means  of  the  mortgage  itself,  and 
being  able  to  obtain  possession  of  the  land  by  a  legal  action,  is 
clothed  with  all  the  attributes  of  legal  ownership,  deals  with  tlie 
land  as  though  it  were  his  own,  is  amply  protected  by  the  legal 
remedies,  and  seldom  resorts  to  the  equitable  remedy  of  a  strict 
foreclosure  by  which  the  mortgagor's  right  of  redemption  is  ex- 
tinguished. In  the  second  class  of  states  and  territories,  the  change 
is  complete;  the  positions  of  the  two  parties  are  exactly  reversed. 
Equity  deals  primarily  and  almost  exclusively  with  the  mortgagee. 
His  interest  under  the  mortgage  is  no  longer  an  estate;  it  is  in  all 
courts,  of  common  law,  of  probate,  and  of  equity,  a  mere  lien,  an 
appendage  of  the  debt,  personal  assets,  a  thing  in  action  assignable 
with  the  debt,  but  incapable  of  being  separated  from  the  debt  and 
transferred  by  itself.     lie  has  no  legal   remedy  on  the  mortgage, 

'Hubbell  V.  Moiilson,  53  N.  Y.  225.  1.3  Ain.  Rep.  5in,  Kirch.  3:^4 ;  Spect 
V.  Spect,  88  Cal.  437,  22  Am.  St.  Eep.  314,  20  Pac.  203,   13  L.  R.  A.   137. 


§  1190  EQUITY    JL'RISPKUDEXCE.  C96 

no  power  to  recover     possession  of  the  land,  and  can  enforce  the 
lien  against   the  land  in  no  legal  action.     The  remedy  which  the 
courts  of  equity  grant  is  based  upon  the  notion  that  his  interest  is 
a  mere  equitable  lien,  and  not  an  estate.     The  relief  no  longer  con- 
sists in  an  extinguishment  of  the  mortgagor's  right,  by  which  the 
absolute  title  is  left  in  the  mortgagee.     Its  primary   object   is  an 
enforcement  of  the  lien  by  the  sale  of  the  mortgaged  premises  and 
an  application  of  the   proceeds   upon   the   debt.     The   mortgagor's 
estate  is,   of  course,   destroyed,   or.   to   speak   more   accurately,   is 
iransf erred  to   the  purchaser  at  the  judicial  sale.     The   term   "fore- 
closure" is  still  applied  to  this  process,  but  is  evidently  a  misnomer 
Avhen  used  to  describe  the  effect  produced  on  the  mortgagor's  in- 
terest: no  "equity  of  redemption"  is  foreclosed  or  cut  off,  but  a 
legal  estate  is  taken  from  the  mortgagor  and  transferred  to  the 
})urchaser.     The  mortgagee  is  permitted  to  buy  in  the  land  at  the 
sale,  and  may  thus  acquire  the  title;  but  he  acquires  it.  not  as  mort- 
gagee, but  as  purchaser.     The  mortgagor,  on  the   other  hand,  re- 
taining the  full  legal  estate,  subject  only  to  the  encumbrance,  and 
being  entitled  to  the  possession,  use,  rents,  and  profits  of  the  land 
up  to  the  time  when  his  title  is  finally  divested  by  a  judicial  sale 
in  a  proceeding  to  enforce  the  lien,  is  enabled  to  defend  his  estate 
and  possession,  not  only  against  third  persons,  but  against  the  mort- 
gagee himself,  by  legal  actions;  and  as  long  as  he  does  not  either 
expressly  or  impliedly  surrender  the  possession  io  the  mortgait'ee.  he 
has  no  need  nor  occasion  to  invoke  the  aid  of  equity.     There  is, 
indeed,  one  situation  possible  in  which  he  must  resort  to  equity  for 
relief.     If.  through  his  express  consent,  or  through  any  other  lawful 
means,  the  mortgagee  has  been  permitted  to  obtain  possession   of 
the  land,  the  mortgagor's  only  remedy  is  the  ef|uitable  suit  for  a 
redemption,  in  whit-h  an  account  of  the  rents  and  profits  received 
can  be  adjusted,  the   amount  of  the  debt   ascertained,   the   mort- 
gage extinguished,  and  the  mortgagor  restored.    The  situation  which 
requires  this  interposition  of  equity  on  behalf  of  the  mortgasfor  is 
comparatively  of  very  rare  occurrence.      The  foregoing  description 
of  the   equitable  jurisdiction   is   especially   applicable   to   the   com- 
monwealths which  I  have  grouped  in  the  second  division;  but  it  is 
also  practically  correct  wnth  reference  to  several  of  those  assigned 
to  the  first  division.     A  practical   and  accurate  criterion.  I  think, 
would  be  found  in  the  kind  of  remedy  to  enforce  the  mortgagee's 
rights  which  commonly  prevails.     In  states  where  the  remedy  by 
strict  foreclosure  is  the  ordinary  one.  the  double  system  of  laAV  and 
equity  invst  necessarily  exist  in  practice  as  well  as  in  theory.    Where 
the  remedy  l)y  judicial  sale  under  a  decree  is  the  usual  one.  the 
common-law  notions    if  they  exist  at  all.  must  be  virtually  theoret- 
ical. 


(iOr  VAIUOUS    lOK.MS    AiNU    KINDS    OF    MORTGAGE.  ^  IVJo 


SECTION  III. 

VARIOUS   FORMS   AND   KJNDS   OF   MORTGAGE. 


§   1]92.   In    equity,   a    mortgafre   is   a    security   for   a   debt. 

§   1193.  Once   a    mortgage,   always   a    mortgage. 

§   1194.  ^Mortgage,    and    conveyance    with    an    agreement    of    repurchase, 
distinguished. 

§   1193.  The  general   criterion:    the  continued   existence  of   a   debt. 

§   1196.  A   conveyance   absolute    on    its   face    may    be    a   mortgage. 
§5   1197-1199.  Mortgage  to  secure  future  advances. 

§   1197.  As   between   the   immediate   parties. 

§  1198.  As   against    subsequent    encumbrancers    and    purchasers, 
•§   1199.  As   affected   by  the  recordinor  act. 
55   1200-120.*?.  Mortgages   to   secure   several    different   notes. 

§   1200.  As  between  the  original   parties. 

§   1201.  Assignees   of  the   notes:    order  of  priority  among  them. 

§   1202.  Effect   of  an   assignment  of  the  notes. 

§  1203.  Priority  between  an  assignee  and  the  mortgagee. 

§  1192.  In  Equity,  a  Mortgage  is  a  Seciarity  for  a  Debt.— In  the 
e'liiitable  view,  a  mortcraoe  may  he  descrihed  in  o-eneral  terms  as  an 
assurance  or  pledare  of  or  charge  upon  property,  real  or  personal, 
for  an  antecedent,  present,  or  future  debt  or  loan,  as  security  for 
and  redeemable  on  the  repayment  of  such  debt.^  The  fundamental 
principle  of  equity  is,  that  whenever  a  conveyance  of  land  is  given 
for  the  purpose  of  securing  payment  of  an  existing  debt,  it  is  a 
mortgage.  If  the  fact  is  established  that  a  debt  exists  between  the 
parties,  and  the  transaction  did  not  amount  to  a  present  payment, 
satisfaction,  or  discharge  of  that  debt,  but  recognized  it  as  still 
continuing,  to  be  paid  at  some  future  time,  and  was  intended  to  be 
a  security  for  such  payment,  then  the  instrument  is  always  regarded 
in  equity  as  a  mortgage,  whatever  be  its  form.- 

§  1193.  Once  a  Mortgage,  Always  a  Mortgage.— In  general,  all 
pcrsoiLS  able  to  contract  are  permitted  to  determine  and  control 
their  own  legal  relations  by  any  agreements  which  are  not  illegal, 
c.v  opposed  to  good  morals  or  to  public  policy;  but  the  mortgage 
forms  a  marked  exception  to  this  principle.  The  doctrine  has  been 
fiimly  established  from   an   early  day  that  when  the   character  of 

'  Seton  V.  Slade  7  Ves.  265,  273,  2  Scott  332. 

-Stinehfield  v.  Milliken.  71  Me.  .567.  H.  &  B.  47.  Shep.  62:  Campbell  v. 
Dearbom  109  :\rass.  130.  12  Am.  Rep.  671.  Kirch.  191.  If  the  instrument  be 
in  fact  a  mortgage,  it  is  entirely  immaterial  that  there  is  no  provision  for  a 
i-edemjition,  or  no  day  fixed  for  the  payment:  Joynes  v.  Statham,  3  Atk.  388, 
2  Scott  253. 


§  1194  EQUJTY  Ji"i;i.si-i;rDi:xci:.  (jyS 

a  mortgage  has  attached  at  the  commencement  of  the  transaction, 
so  that  the  instrument,  whatever  be  its  form,  is  regarded  in  equity 
as  a  mortgage,  that  character  of  mortgage  must  and  will  always 
continue.  If  the  instruiuent  is  in  its  essence  a  mortgage,  the  parties 
cannot  by  any  stipulations,  however  express  and  positive,  render  it 
anything  but  a  mortgage,  or  deprive  it  of  the  essential  attributes 
belonging  to  a  mortgage  in  equity.  The  debtor  or  mortgagor  can 
not,  in  the  inception  of  the  instrument,  as  a  part  of  or  collateral  to 
its  execution,  in  any  manner  deprive  himself  of  his  equitable  right  to 
come  in  after  a  default  in  paying  the  money  at  the  stipulated  time, 
and  to  pay  the  debt  and  interest,  and  thereby  to  redeem  the  land 
from  the  lien  and  encumbrance  of  the  mortgage;  the  equitable  right 
of  redemption,  after  a  default  is  preserved,  remains  in  full  force, 
and  will  be  protected  and  enforced  by  a  court  of  equity,  no  matter 
what  stipulations  the  parties  may  have  made  in  the  original  trans- 
action purporting  to  cut  off  this  right. '^ 

§  1194.  Mortgage,  and  Conveyance  with  Agreement  of  Repur- 
chase, Distinguished. — The  principle  that  equity  looks  beneath  the 
external  form  in  determining  questions  connected  wnth  mortgage 
has  frequently  been  applied  to  a  particular  mode  of  dealing  with 

^  This  doctrine  is  based  upon  the  relative  situation  of  the  debtor  and  the 
creditor:  it  rccotinixes  the  fact  that  tlie  creditor  necessarily  has  a  power  over 
his  debtor  which  may  be  exercised  inequitably;  that  the  debtor  is  liable  to 
yield  to  the  exertion  of  such  power;  and  it  protects  the  debtor  absolutely  from 
the  consequences  of  his  inferiority,  and  of  his  own  acts  done  through  infirmity 
of  win.  The  doctrine  is  universal  in  its  application,  and  underlies  many 
special  rules  of  equity.  It  extends  to  stipulations  limiting  the  time  of  redemp- 
tion, or  the  ])arties  who  may  redeem:  notwithstanding  all  such  stipulations. 
the  riglit  to  redeem  is  general:  Howard  v.  Harris,  1  Vern.  .3.3,  Kirch.  430, 
f>hep.  o7.  And  stipulations  inserted  in  a  mortgage,  giving  the  mortgagee  a 
collateral  advantage  not  properly  belonging  to  the  contract  of  mortgage,  are 
invalid:  W'illett  v.  \\innell,  1  Vern.  488,  Kirch.  469;  Jennings  v.  Ward,  2  Vern. 
rv20,  Kirch.  470:  Broad  v.  Selfe,  9  .Tur.  N.  S.  885,  Kirch.  473;  Biggs  v. 
Hoddinott  (1808),  2  Ch.  307.  Kirch.  47.^:  Santley  v.  Wilde  flSOn),  1  Ch.  747. 
l-iirch.  488;  Noakes  &  Co.,  Ltd.,  v.  Eice  (1902),  App.  Cas.  24.  On  the  other 
hand,  an  agreement  with  the  mortgagor  that  the  mortgagee  shall  have  a  prefc  r- 
ence  of  purcliasing — a  pre-emption — in  case  of  a  sale  by  the  mortgagor  is 
valid:  Orby  v.  Trigg,  2  Eq.  Cas.  Abr.  599.  pi.  24,  9  Mod.  2,  Kirch.  470.  The 
mortgagor  may,  at  any  'time  after  the  execution  of  the  mortgage,  by  a  separate 
and  distinct  transaction,  sell  or  release  his  equity  of  redemption  to  the  mort- 
gagee: Trull  v.  Skinner,  17  Pick  213,  Kirch.  44.5:  Pritchard  v.  Elton.  38  Conn. 
434,  Kirch.  458;  De  Martin  v.  Phelan.  115  Cal.  538.  47  Pac.  35fi.  50  Am.  St.  Pvcp. 
115,  Kirch.  405.  This  is  a  transaction,  however,  which  a  court  of  equity  will 
examine  strictly,  in  order  to  be  satisfied  that  it  is  a  perfectly  fair  and  independ- 
ent proceeding,  entirely  unconnected  with  the  original  contract  of  mortgage: 
Villa  v.  Rodriguez,  12  Wall.  323.  20  L.  ed.  400.  Kirch.  453;  H>Tidman  v.  Hynd- 
njan.  19  Vt.  9.  46  Am.  Dee.  171,  Kirch.  583;  Holridge  v.  Gillespie,  2  Johns. 
Ch.  30.   Kirch.  579. 


091)  VAinOUS    FOItMS    AXO    Kl.XD.s    OF    .MOItTC.VGE.  ^   U'>"'> 

real  property.  Where  land  is  conveyed  by  an  absolute  deed,  and 
an  instrument  is  given  back  as  a  part  of  the  same  transaction,  not 
containing  the  condition  ordinarily  inserted  in  mortgages,  but  being 
an  agreement  that  the  grantee  will  reconvey  the  premises  if  the 
grantor  shall  pay  a  certain  sum  of  money  at  or  before  a  specified 
time,  the  two  taken  together  may  be  what  on  their  face  they  pur- 
port to  be, — a  mere  sale  with  a  contract  of  repurchase, — or  they 
may  constitute  a  mortgage.  In  the  first  case,  where  the  transaction 
is  merely  a  sale  and  a  contract  of  repurchase,  the  agreement  must 
be  fulfilled  according  to  its  terms.  If  the  grantor  fails  to  pay  the 
money  at  the  stipulated  time,  all  his  rights,  either  at  law  or  in 
e(iuity,  under  the  contract  are  gone ;  there  is  no  equity  of  redemp- 
tion.^ In  the  second  case,  if  the  transaction  be  a  mortgage,  all  the 
qualities  and  incidents  of  a  mortgage  attach,  whatever  be  its  exter- 
nal form,  and  whatever  be  the  collateral  stipulations.  The  maxim. 
Once  a  mortgage,  always  a  mortgage,  applies  to  this  condition  of 
fact  with  especial  emphasis.  The  rights  of  the  two  parties  are  re- 
ciprocal :  that  of  the  grantor  to  redeem  after  a  default  in  payment 
at  the  specified  time  is  complete ;  that  of  the  grantee  to  foreclose 
and  cut  off  this  equity  of  redemption  is  no  less  clear. - 

§  1195.  The  General  Criterion — The  Continued  Existence  of  a 
Debt. — Whether  any  particular  transaction  does  thus  amount  to  a 
mortgage  or  to  a  sale  w'ith  a  contract  of  repurchase  must,  to  a  large 
extent,  depend  upon  its  own  special  circumstances;  for  the  question 
finally  turns,  in  all  cases,  upon  the  real  intention  of  the  parties  as 
.slioAvn  upon  the  face  of  the  Avritings,  or  as  disclosed  by  extrinsic 
evidi^nce.  A  general  criterion,  however,  has  been  established  by 
an  overwhelming  consensus  of  authorities,  which  furnishes  a  suffi- 
cient test  in  the  great  majority  of  cases;  and  whenever  the  applica- 
tion of  this  test  still  leaves  a  doubt,  the  American  courts,  from  ob- 
vious motives  of  policy,  have  generally  leaned  in  favor  of  the  mort- 
gage. This  criterion  is  the  continued  existence  of  a  debt  or  liabilitj^ 
between  the  parties,  so  that  the  conveyance  is  in  reality  intended 
as  a  security  for  the  debt  or  indemnity  against  the  liability.  If 
there  is  an  indebtedness  or  liability  l)etween  the  parties,  either  a 
debt  existing  prior  to  the  conveyance,  or  a  debt  arising  from  a  loan 
made  at  the  time  of  the  conveyance,  or  from  any  other  cause,  and 
this  debt  is  still  left  subsisting,  not  being  discharged  or  satisfied  by 
the  conveyance,  but  the  grantor  is  regarded  as  still  owing  and  bound 


'Conway  v.  Alexander.  7  Crancli  218.  ?,  L.  od.  321,  Kirch.  151;  Coylc  v. 
Davis,  IIG  V.  >S.  109,  6  Sup.  Ct.  314,  20  L.  ed.  583.  Kirch.  1.5G. 

-RussoII  V.  .Southard,  12  How.  130,  13  L.  od.  027.  Kirch.  157:  Flajrg  v.  Mann, 
2  Sum.  486,  Fed.  Cas.  No.  4847,  Kirch.  167;  Peterson  v.  Clark,  15  Jolins. 
205,    Kirch.    412. 


§   1196  EQUITY    JUinSPKUDENCE.  'iOO 

to  pay  it  at  some  future  time,  so  that  the  payment  stipulated  for  in 
the  agreement  to  reconvey  is  in  reality  the  payment  of  this  existing 
(kbt,  then  the  whole  transaction  amounts  to  a  mortgage,  whatever 
language  the  parties  may  have  used,  and  whatever  stipulations  they 
may  have  inserted  in  the  instruments.  On  the  contrary,  if  no  such 
relation  whatsoever  of  debtor  and  creditor  is  left  subsisting,  then 
the  transaction  is  not  a  mortgage,  but  a  mere  sale  and  contract  of 
repurchase.^  The  writings  may  show  on  their  face  that  the  relation 
of  debtor  and  creditor  still  continues,  and  that  its  existence  and 
consequences  are  contemplated  by  the  parties;  or  they  may  entirely 
fail  to  show  any  such  fact,  and  may  consist  simply  of  an  absolute 
conveyance  and  of  a  naked  agreement  to  reconvey.  While  in  the 
former  case  parol  evidence  is  clearly  inadmissible  to  contradict  the 
terms  of  the  writings,  and  to  destroy  their  necessary  character  as 
a  mortgage,  in  the  latter  case  extrinsic  parol  evidence  is  ahva^^s 
admissible  to  show  the  real  situation  of  the  parties,  the  existence 
of  a  debt,  their  intention  to  secure  payment  of  that  debt,  and 
the  actual  character  of  the  instruments  as  constituting  a  mortgage. 
While  each  case  must  involve  its  own  special  facts,  the  foUoAving 
circumstances  are  regarded  by  the  courts  as  important,  and  as 
throwing  much  light  upon  the  real  intent  and  nature  of  the  trans- 
actions: The  existence  of  a  collateral  agreement  by  the  grantor 
to  paj^  money;  his  liability  to  pay  interest;  where  a  debt  existed 
antecedent  to  the  conveyance,  the  surrender  or  cancellation  of  the 
evidences  of  such  indebtedness,  or  the  suffering  them  to  remain 
outstanding  and  operative,  or  the  substitution  of  others  in  their 
I)!ace;  the  price  of  the  conveyance  being  inadequate;  the  grantor 
still  left  in  possession;  an  application  or  negotiation  for  a  loan 
preceding  or  pending  the  transaction. 

§  1196.  A  Conveyance  Absolute  on  its  Face  may  be  a  Mortgage. 
— Any  conveyance  of  land  absolute  on  its  face,  without  anj^thing  in 
its  terms  to  indicate  that  it  is  otherwise  than  an  absolute  conveyance, 
and  without  any  accompanying  written  defeasance,  contract  of  I'c- 
purchase,  or  other  agreement,  may,  in  equity,  by  means  of  extrin- 
sic and  parol  evidence,  be  shown  to  be  in  reality  a  mortgage  as 
between  the  original  parties,  and  as  against  all  those  deriving  title 
from  or  under  the  grantee,  who  are  not  bona  fide  purchasers  for 
v;due  and  without  notice.     The  principle  Avhich  imderlies  this  doc- 

'  Cases  in  ichich  the  transaction  has  amounted  to  a  mortgafje:  Keitliloy  v. 
Wood,  151  111.  500,  38  N.  E.  149,  42  Am.  St.  Rep.  205:  Lounsbmy  v.  Xoiton, 
59  Conn.  170,  22  Atl.  153;  Bijjler  v.  Jack,  114  Iowa,  007.  87  X.  W.  700.  C(tf<rs 
of  sale  and  conlrnct  to  repurchase :  Conway's  Ex'rs  v.  Alexander,  7  Cranoh  218. 
Kirch.  151;  Pace  v.  Bartles,  47  N.  .1.  Eq.  170,  20  Atl.  .352.  Aufrredmf  drht  : 
Jf  left  existing,  the  conveyance  js  a  mortgage;  if  satisfied,  it  is  not  a  mortgage: 
Slowey  V.  McAIurray,  27  -Mo.  113,  116,  72  Am.  Dee.  251. 


701  VARIOUS    rOK.MS    AND    KJMJS    OF    MOUTGAGE,  ^  HOG 

trine  is  the  fruitrul  source  of  many  other  equitable  rules :^  that  it 
Avould  be  a  virtual  fraud  for  the  grantee  to  insist  upon  the  deed 
as  an  absolute  conveyance  of  the  title,  which  had  been  intentionally 
given  to  him,  and  which  he  had  knowingly  accepted,  merely  as  a 
security,  and  therefore  in  reality  as  a  mortgage.  The  general  doc- 
t!-ine  is  fully  established,  and  certainly  prevails  in  a  great  majority 
of  the  states,  that  the  grantor  and  his  representatives  are  always 
aUowed  in  equity  to  show,  by  parol  evidence,  that  a  deed  absolute 
on  its  face  was  only  intended  to  be  a  security  for  the  payment  of 
a  debt,  and  thus  to  be  a  mortgage,  although  the  parties  deliberately 
and  knowingh^  executed  the  instrument  in  its  existing  form,  am' 
v;ithout  any  allegations  of  fraud,  mistake,  or  accident  in  its  mode 
of  execution.  As  in  the  last  preceding  case,  the  sure  test  and  the 
essential  reciuisite  are  the  continued  existence  of  a  debt.  If  there 
is  no  indebtedness,  the  conveyance  cannot  be  a  mortgage;  if  there 
is  a  debt  existing,  and  the  conveyance  was  intended  to  secure  its 
jiayment,  equity  will  regard  and  treat  the  absolute  deed  as  a  mort- 
gage. The  presumption,  of  course,  arises  that  the  instrument  is 
what  it  purports  on  its  face  to  be,  an  absolute  conveyance  of  the 
land;  to  overcome  this  presumption,  and  to  establish  its  character 
as  a  mortgage,  the  cases  all  agree  that  the  evidence  must  be  clear, 
unequivocal,  and  convincing,  for  otherwise  the  natural  presumption 
Avill  prevail.-  Whenever  a  deed  absolute  on  its  face  is  thus  treateil 
as  a  mortgage,  the  parties  are  clothed  with  all  the  rights,  are  sub- 
jf^ct  to  all  the  liabilities,  and  are  entitled  to  all  the  remedies  of 
(»rdinary  mortgagors  and  mortgagees.  The  grantee  may  maintain 
an  action  for  the  foreclosure  of  the  grantor's  equity  of  redemption; 
tlic  grantor  may  maintain  an  action  to  redeem  and  to  compel  a  re- 

'  Among  others,  of  the  familiar  doctrine  concerning  tlie  specific  performance 
of  verbal  contracts  for  the  sale  of  land  which  have  been  part  performed.  Tlie 
])riiKiple,  in  its  broadest  generality,  prohibits  statutes  and  legal  rules  designed 
to   prevent   fraud   from   being  so   used   as   to   produce   equitable   fraud. 

-'There  are  some  decisions  which  limit  the  operation  of  this  doctrine,  even 
ill  equity,  to  cases  where  the  absolute  form  of  the  conveyance  is  the  roult 
(if  fraud,  mistake,  or  accident.  This  narrow  view  seems  to  have  resulted  from 
;iu  erroneous  conception  of  the  principle  upon  which  the  doctrine  rests;  tiie 
equitable  notion  of  fraud  in  the  grantee's  insisting  upon  the  conveyance  as 
al)so]ute.  wlien  it  was  given  and  accepted  only  as  a  security,  is  carried  back 
to  the  inception  of  the  instrument,  and  is  improperly  made  to  involve  the 
existence  of  fraud  in  the  very  execution  of  the  deed.  The  doctrine  as  stated  in 
llie  text  is  followed  by  nearly  if  not  quite  all  the  recent  decisions:  ISIaxwell  v. 
I.ady  Moimtacute.  Prec.  Ch.  ,52fi,  1  Scott  461;  Cotterell  v.  Purchase,  Cas.  t. 
Talb.  fil.  Kirch.  175;  Joynes  v.  Statham,  3  Atk.  .388.  2  Scott  253;  Peugh  v. 
Davis,  96  U.  S.  332,  24  L.  ed.  775,  Shep.  59;  Stinchfield  v.  Milliken.  71  Mv. 
r>67,  H.  &  B.  47,  Shep.  62:  Knapp  v.  Bailey,  79  Me.  201,  1  Am.  St.  Eep.  295, 
0  Atl.  122.  H.  &  B.  75:  Cnmyibcll  v.  Dearborn.  109  ^lass.  ];!0;  12  Am.  Rep. 
(i71.   Kirch.    191:    Odoll    v.   :Moiitross.    68   N.   Y.   499,   Kirch.   400. 


§  1198  EQUITY    JI'RTSPRUDEXCE.  702 

conveyauee  upon  his  payment  of  the  debt  secured.  If  the  grantee 
goes  into  possession,  he  is  in  reality  a  mortgagee  in  possession,  and 
as  such  is  liable  to  account  for  the  rents  and  profits.^ 

§  1197.  Mortgages  to  Secure  Future  Advances. — Whatever  disin- 
clination may  at  any  time  have  been  felt  by  courts  to  sustain  this 
kind  of  security,  it  is  now  well  settled  that  mortgages  given  in  good 
faith  to  secure  future  advances,  either  in  addition  to  or  without  a 
present  indebtedness,  are  valid  and  binding  between  the  parties. 
When  no  claims  of  subsec^uent  encumbrancers  or  purchasers  have 
intervened,  there  is  no  longer  any  doubt  that  the  mortgagee  can  en- 
force the  security  for  all  the  sums  which  he  has  advanced  to  the 
mortgagor,  under  the  mortgage  and  within  its  scope,  both  when 
such  advances  were  optional  on  his  part,  and  when  he  was  bound 
to  make  them  by  some  collateral  agreement  with  the  mortgagor.  If 
the  advances  were  actually  made  within  the  scope  of  the  mortgage, 
the  fact  that  they  were  originally  optional  or  obligatory  would  be 
wholly  immaterial  between  the  parties  them.selves.^  The  fact  that 
the  mortgage  is  given  to  secure  future  advances  need  not  appear  on 
the  face  of  the  instrument  itself.  If  it  purports  to  secure  the  pay. 
ment  of  a  specified  amount,  the  mortgage  need  not  express  the  in- 
tention or  agreement  of  the  parties  that  this  amount  of  indebted- 
ness is  to  be  made  up  wholly  or  in  part  by  future  advances:  the 
agreement  to  that  effect  may  be  entirely  verbal."  More  definiteness 
and  certainty,  however,  are  necessary  to  render  the  mortgage  oper- 
ative against  su1ise(iuent  purchasers  nnd  encumlirancers. 

§  1198.  The  Same.  As  against  Subsequent  Encumbrancers  or 
Purchasers. — As  such  a  mortgage  is  a  valid  security  between  the 
parties,  it  is  plainly  an  ecjually  valid  and  effective  security,  and  gives 
the  holder  thereof  a  prior  lien,  against  subsequent  purchasers  and 
encumbrancers,  for  all  advances  made  hcfore  the  execution  of  the 
.subsequent  conveyances  or  mortgages  by  the  mortgagor,  or  the  dock- 
eting of  the  subsequent  .judgments  against  him.  The  only  real 
(luestion  to  be  considered  relates  to  the  validity  of  the  mortgage 
as  a  security  for  advances  made  afior  the  execution  or  recording  of 
a  subsequent  mortgage  by,  or  the  docketing  of  a  subsequent  judg- 
ment against,  the  mortgagor;  and  in  answering  this  question,  there 
is.  to  some  extent,  a  direct  conflict  of  opinion  among  the  American 
'lecisions.  It  may  be  regarded  as  established  that  where  a  mortgage 
has  been  given  to  secure  future  advances,  and  advances  are  made  in 
pursuance  thereof  nffer  the  execution  or  recording  of  a  subsequent 
mortgage  or  the  docketing  of  a  subsequent  judgment,  but  Avithout 

'  See  Morris  v.  Budlong,  7S  X.  Y.  .543,  Kirch.  559. 

*Aekerman  v.  Hiinsieker,  85  X.  Y.  43.  39  Am.  Rep.  621.  Kircli.  2S5. 

'See  Kirby  v.  Raynes,  138  Ala.  194,  100  Am.  St.  Rep.  39.  35  South.  118. 


1^03  VAHIOUS    FOK.MS    AXI)    KINDS    OF    .MOKTGAGE.  §  1199 

any  notice  to  the  mortgagee  of  such  subsequent  encumbrance,  upon 
the  general  ]n'ineipk\s  of  equity,  independently  of  the  recording 
acts,  the  subsequent  encumbrancer  can  claim  no  preference  for  his 
own  security;  in  other  words,  the  first  mortgage  remains  prior  in 
effect,  as  it  is  prior  in  time.^ 

§  1199.  The  Same. — As  Affected  by  the  Recording  Acts.^The  gen- 
eral doctrine  being  thus  established  that  the  mortgage  constitutes  a 
prior  lien  for  all  advances  made  in  pursuance  thereof  before  notice 
of  a  subsequent  encumbrance  or  conveyance,  the  effect  of  the  re- 
cording acts  remains  to  be  considered.  It  is  at  this  point  that  the 
diversity  of  opinion  among  the  American  courts  has  chiefly  arisen. 
The  following  conclusions  seem  to  be  in  harmony  with  established 
principles,  and  to  be  sustained  by  the  weight  of  authority;  and  they 
may  be  regarded,  I  think,  as  furnishing  the  prevailing  rule:  When 
a  mortgage  to  secure  future  advances  reasonably  states  the  purposes 
for  which  it  is  given,  its  record  is  a  constructive  notice  to  subse(|uent 
purchasers  and  encumbrances;  they  are  thereby  put  upon  an  incjuiry 
to  ascertain  what  advances  or  liabilities  have  been  made  or  in- 
curred. The  record  of  a  subsequent  mortgage  or  conveyance,  or 
the  docketing  of  a  subsequent  judgment,  is  not  a  constructive 
notice  of  its  existence  to  such  prior  mortgagee.  The  prior  mort- 
gage, therefore,  duly  recorded,  has  a  preference  over  subsequent 
recorded  mortgages  or  conveyances  or  subsequent  docketed 
judgments,  not  only  for  advances  previously  made,  but 
also  for  advances  made  after  their  recording  or  docketing  without 
notice  thereof.  As  the  record  of  the  second  encumbrance  does  riot 
operate  as  a  constructive  notice,  it  requires  an  actual  notice  to  cut 
off  the  lien  of  the  prior  mortgage;  and  the  subsequent  encum- 
brancer may,  by  giving  actual  notice,  at  any  time  prevent  further 
advances  from  being  made  to  his  OAvn  prejudice.^  There  is  a  group 
of  decisions  which  adopt  a  different  view,  an  opposite  conclusion. 
They  seem  to  regard  the  lien  for  securing  future  advances  as 
only  arising,  or  at  all  events  as  only  perfected,  so  as  to  be  available, 
at  and  from  the  time  when  the  advance  is  actually  made.  An  ad- 
^'ance,  therefore,  although  in  pursuance  of  a  prior  mortgage  duly 
recorded,  if  made  after  the  record  of  a  subsequent  mortgau'e  or 
conveyance,  or  the  docketing  of  a  subsequent  judgment,  is  att'ected 
with  constructive  notice  of  such  subsequent  encumbrance  or  con- 
veyance, and  its  lien  is  consequently  postponed  to  that  of  the 
second  record.    By  this  rule,  a  mortgage  to  secure  future  advances 

MTopkiii'^on   v.    Pvolt,    9    H.   L.    Cas.    514,    25    Beav.    401. 

^Tlie  courts  wliic-h  adopted  this  vnlo  apply  it  aliko,  whether  the  advarices 
ivero  optional  or  ohlio-ntory:  Ackprman  v.  Hiinsickor,  85  X.  Y.  43,  50  Am, 
Eep.    <i21  :    Tvohiii^^on    v.    Williain~=,    22   X.    Y.    380,   Kirch.    274. 


I  1200  EQUITY    JURISPRUDENCE,  70-i 

secures  a  preference  only  for  those  advances  actually  made  before 
the  record  of  a  subsequent  encumbrance  or  conveyance;  it  loses 
its  precedence  for  all  advances  made  after  such  record.-  The  lien 
of  the  prior  mortgage  will,  of  course,  prevail  against  all  subse- 
quent purchasers  or  encumbrancers  whose  rights  do  not  attach 
until  after  the  advances  are  made,  and  against  all  who  are  not 
bona  fide  purchasers  for  value  without  notice."  A  distinction  has 
been  made,  in  some  of  the  cases,  between  optional  and  ohligatori/ 
advances.  Where  the  advance  is  optional  with  the  mortgagee,  it 
has  been  said  that  the  lien  thereof  does  not  attach  until  it  is 
actually  made;  and  consequently  such  an  advance  made  after 
notice  of  a  second  encumbrance  loses  its  preference.  Here,  again, 
the  decisions  are  not  uniform;  some  require  an  actual  notice  in 
order  to  cut  ofif  the  lien  even  of  an  optional  advance;  with  others 
the  recording  gives  a  constructive  notice  which  is  sufficient.*  Final- 
ly, there  are  decisions  by  most  able  courts  which  give  the  prior 
mortgage  to  secure  future  advances  an  absolute  preference;  which 
maintain  the  mortgagee's  supremacy,  and  preserve  the  lien  of 
his  mortgage  against  intervening  subsequent  encumbrances,  even 
for  advances  made  after  receiving  actual  notice  of  such  encum- 
brances.-' This  conclusion  is  based  upon  the  doctrines  that  the 
executory  agreement  of  the  mortgagee  creates  a  full  and  perfect 
!ien  in  equity,  effectual  against  all  persons  who  are  charged  with 
notice  thereof,  and  that  the  record  of  the  mortgage  furnishes  such 
a  notice  affecting  all  subsequent  encumbrances. 

§  1200.  Mortgages  to  Secure  Several  Different  Notes. — In  many 
of  the  states  the  mortgage  debt  is  ordinarily  evidenced  b}?-  a  prom- 
issory note  in  place  of  a  bond.  A  special  form  of  security  has  thus 
become  connnon  in  certain  parts  of  this  country  which  is  probal)ly 

-  The  fundamental  error  of  this  view,  in  my  opinion,  consists  in  its  mistaken 
conception  of  the  nature  of  an  equitable  lien,  in  regai'ding  the  lien  as  arising- 
at  and  from  the  act  of  making  the  advance,  instead  of  from  the  previous 
executory  agreement  by  which  the  land  was  bound  as  security  for  the  future 
advances:  See  post,  chapter  on  lions.  La  due  v.  Detroit  etc.  R.  R.,  1.3  Mich. 
.380,  87  Am.  Dec.  7.59  (the  opinion  of  Christiancy,  J.,  gives  the  ablest  pre- 
sentation   of    this    rule). 

''McCarty    v.    Chalfant.     14    W.    Va.    5.31. 

■•  Heintze  v.  Bentley,  .34  N.  J.  Eq.  562  (first  mortgagee  having  knowledge 
of  a  second  encumbrance). 

^  Wltczinski  v.  Everman,  51  Miss.  841.  These  decisions,  it  will  be  seen, 
reaffirm  the  ruling  of  Lord  Chancellor  Cowper  in  the  early  case  of  Gordon  v. 
(jraham.  2  Eq.  Cas.  Abr.  598,  overruled  in  Hopkinson  v.  Rolt ;  and  without 
entering  into  any  discussion,  1  would  venture  to  express  the  opinion  that  they 
are  based  upon  the  true  principle,  and  formulate  the  correct  doctrine,  involved 
in  and  derived  from  the  generally  accepted  constriiction  of  the  American  re- 
cording acts. 


Y05  VARIOUS    FORMS    AND    KINDS    OF    MORTGAGE.  §  1201 

unknown  in  England :  the  mortgage  debt  is  represented  by  a  series 
oi'  several  distinct  promissory  notes  often  negotiable  in  form,  all 
bearing  the  same  date,  and  generally  made  payable  in  a  succes- 
sive order  at  ditt'erent  times, — as,  for  exam-pie,  in  one,  two,  three, 
and  four  years  from  date, — and  the  mortgage  expressly  secures 
the  payment  of  these  notes  according  to  their  respective  tenors.^ 
While  all  these  notes  and  the  mortgage  remain  in  the  hands  of 
tlip  mortgagee,  or  when  they  are  all  assigned  with  the  mortgage  to 
and  held  by  the  same  person,  plainly  no  questions  can  arise  other 
than  those  presented  by  the  ordinary  form  of  mortgage.  It  is 
only  when  the  mortgagee  assigns  the  notes  separately  to  differ- 
ent persons,  or  when  he  assigns  a  portion  of  them  and  retains 
the  others  himself,  that  the  special  questions  arise  which  are  now 
to  be  considered;  and  these  questions  relate  chiefly  to  the  rights 
of  the  respective  hoklers.  and  to  the  order  of  priority  among  them. 
§  1201.  Rights  of  Assignees— Order  of  Priority  among  Them.— 
"Where  all  the  notes  stand  on  the  same  footing,— that  is,  they  are 
all  payable  at  the  same  time, — the  equities  of  all  the  assignees  are 
ef(ual,  and  there  is  no  preference  or  priority  among  them  in  en- 
forcing the  security  of  the  mortgage.  All  the  assignees  are  entitled 
to  a  pro  rata  share  of  the  proceeds  of  the  mortgaged  premises,  in 
case  there  is  not  sufficient  to  pay  all  the  notes  in  full.^  The  notes, 
however,  are  commonly  made  payable  at  different  times,  in  regu- 
lar succession,  and  this  condition  of  fact  presents  the  real  diffi- 
culty,— a  difficulty  apparently  so  great  that  the  courts  of  various 
states  have  reached  the  most  opposite  conclusions,  and  have  estab- 
lished several  totally  unlike  rules.  ^Yhere  the  notes,  payable  at 
ditt'erent  dates,  are  assigned  by  the  mortgagee  to  different  persons, 
either  at  the  same  or  different  times,  and  either  with  or  without 
an  accompanying  assignment  of  the  mortgage,  the  following  may 
be  regarded  as  the  prevailincj  general  rule  determining  the  right  of 
the  respective  assignees:  Since  the  assignment  of  each  note  is  a 
pro  tanto  assignment  of  the  mortgage,  the  holders  of  the  succes- 
sive notes  are  regarded  as  being  exactly  in  the  situation  of  holdere 
of  successive  mortgages  upon  the  same  land;  their  equities  as 
among  themselves,  and  their  rights  to  enforce  the  security  of  the 
mortgage,  are  not  equal;  they  are  entitled  to  priority'  in  the 
mortgage  security  of  their  respective  notes  according  to  the  order 
of  time  in  which  such  notes  becom.e  due  and  payable.  The  order 
of  maturing  among  the  notes  fixes  the  order  of  preference   anc^ 

'  Tn  the  Eastern  stages,  where  a  bond,  instead  of  a  note,  is  the  ordinary 
evidence  of  the  debt,  several  separate  bonds  are  sometimes  given,  payable  at 
diflerent  times,  each  representing  a  distinct  installment  of  the  mortgage  debt. 

1  Schwartz's    Ex'rs    v.    Leist,    13    Ohio    St.    419. 
45 


§  1201  EQUITY  JUKISPRUDEXCE.  706 

priori!}'  among  the  respective  assignees.-  Another  rnle  had  been 
adopted  by  the  courts  of  several  states.  Upon  the  same  condition 
of;  facts,  they  hold  there  is  no  preference  or  priority  whatever 
among  the  various  assignees;  the  terms  of  their  respective  assign- 
ments, or  of  the  maturing  of  their  notes,  are  alike  immaterial ;  all 
the  assignees  are  entitled,  as  among  themselves,  to  share  pro  rata 
in  the  security  of  the  mortgage  and  in  the  proceeds  of  the  mort- 
gaged premises,  if  there  is  not  sufficient  to  pay  all  in  full."  In  a 
very  few  of  the  states,  other  still  more  special  rules  are  adopted 
in  preference  to  either  of  these  two  principal  theories.*  Finally, 
the  operation  of  these  general  rules  may  be  controlled  and  changed 
by  express  provisions  contained  in  the  mortgage  itself.  Such  being 
the  doctrines  concerning  the  rights  of  as.signees  arising  from  the 
terms  of  the  mortgage  and  notes  themselves,  it  is  generally  held 
by  courts  adopting  either  of  the  two  principal  rules  before  stated 
that  the  mortgagee  in  assigning  a  note  may,  by  express  agreement 
with  the  assignee  thereof,  change  the  order  of  priority  or  ecjuality 
which  would  otherwise  exist,  and  may  establish  a  diiTerent  order, 
giving  precedence  of  lien  to  a  note  maturing  at  a  later  time,  and 
that  such  agreement  would  be  binding  upon  any  second  or  subse- 
quent assignees  of  other  notes. '^ 

"  Tliis  rule,  which  is  adopted  in  the  greatest  number  of  states  and  by  a 
large  majority  of  the  decisions,  seems  to  be  based  upon  a  correct  application 
of  equitable  principles  and  analogic^.  The  rights  of  the  holders  are  fixed 
by  what  expressly  appears  upon  the  face  of  the  writings ;  the  mortgage  is  a 
common  bond  imiting  all  the  notes,  and  the  various  assignees  have  through 
it  a  clear  notice  of  each  other's  rights.  The  order  of  the  respective  assign- 
ments is  thus  wholly  immaterial  upon  tlio  riglits  of  priority  among  the  as- 
signees: .Mitchell  V.  Ladew,  36  Mo.  .526.  88  Am.  Dec.  1.56;  Leavitt  v.  Rejmolds, 
79  Iowa  348,  44  N.  W.  567,  7  L.  R.  A.  365. 

^According  to  this  rule,  it  would  be  impossible  for  the  holder  of  a  note  or 
notes  first  maturing  to  foreclose  the  mortgage  entirely,  and  by  a  sale  of  the 
premises  cut  off  the  rights  of  the  other  holders.  Xashville  Trust  Co.  v. 
Smythe.  n4  Tenn.  513.  45  Am.  St.  Rep.  74S.  20  S.  W.  903  (this  case  con- 
iains  an  extensive  collection  of  authorities  illustrating  each  of  the  three  main 
rules   stated   in   the  text). 

*  According  to  the  first  of  these  rules,  -when  notes  maturing  at  different 
dates  are  assigned  at  different  times,  the  assignees  haA'e  priority  according  to 
the  order  of  the  assicfntiients,  irrespective  of  the  order  of  maturing.  This 
peculiar  rule  is  based  upon  the  notion  that  as  between  the  mortgagee  who 
assigns  one  note  and  retains  the  others,  the  assignee  is  entitled  to  the  pref- 
erence; and  the  first  assignee  having  thus  n  priority  as  against  the  mort- 
gagee, any  subsequent  assignee  could  only  succeed  to  this  position  of  the 
mortgagee,  and  so  the  assignees  would  all  take  in  the  order  of  their  assign- 
ments:   Parsons  v.   Martin,   86   Ala.   3.52,   5   South.   467. 

■'■The  reasons  for  holding  such  a  preference  binding  upon  subsequent  assignees 
of  other  notes  are  well  and  fully  stated  in  Nashville  Trust  Co.  v.  Smythe, 
94   Tenn.   513.   45   Am.    St.   Rep.    748,   29    S.   W.   003. 


107  VARIOUS    FORMS    AXJ)    KINDS    OF    MORTGAGE.  §  1'203 

^  1202.  Effect  of  Assigning  the  Note. — Wheiever  the  e({iiitnble 
tlieory  of  the  niortga<ie  is  admitted,  the  assignment  of  one  of  the 
notes  by  itself,  without  any  accompanying  transfer  of  the  mort- 
gage, is  an  assignment  of  an  interest  pro  tanto  in  the  mortgage. 
Each  assignee  is,  through  the  mortgage,  charged  with  notice  of 
the  equitable  interests  of  all  the  other  assignees.^  In  the  states 
which  adopt  the  first  general  rule  as  given  in  the  preceding  para- 
graph, the  assignee  of  the  note  first  maturing  is  entitled  to  fore- 
close the  mortgage  and  procure  the  mortgaged  premises  to  be  sold, 
when  his  note  becomes  due,  and  thus  to  cut  off  the  liens  of  the 
other  notes.  The  holders  of  the  other  notes,  in  order  to  protect 
their  own  interests,  are  entitled  to  redeem  from  him,  before  the 
final  sale,  in  the  order  of  their  various  notes. 

§  1203.  Priority  between  the  Assignee  and  the  Mortgagee. — 
Tluis  far  I  have  spoken  of  the  rights  of  assignees  among  themselves, 
v^liere  all  or  some  of  the  notes  have  been  assigned  to  various 
lioklers;  a  different  principle  may  operate  between  an  assignee 
and  the  mortgagee.  When  the  mortgagee  assigns  one  or  more  of 
the  notes,  and  retains  the  remainder  of  the  series,  it  is  generally 
held  that  the  assignee  is  entitled  to  a  priority  of  lien  as  against 
the  mortgagee,  with  respect  to  the  note  or  notes  so  transferred; 
and  this  rule  operates  without  regard  to  the  order  in  which  the 
notes  held  by  the  two  parties  mature.^ 

'  If  tlip  mortgagee  slioiild,  therefore,  assign  a  part  of  the  notes  to  A,  and 
the  remaining  notes,  together  with  the  mortgage  itself,  to  B,  B  would  not 
acquire  any  precedence  from  the  fact  of  his  holding  the  mortgage;  Wilson 
V.  Eigenbrodt,  30  :Minn.  4,   13  N.  W.  907. 

'For  example,  if  there  was  a  series  of  three  notes,  and  the  mortgagee  as- 
signed Xo.  3,  then  the  assignee,  having  a  prtority  of  lien,  would  be  entitled: 
to  have  his  note  paid  in  full,  although  it  matured  last,  before  the  proceeds 
were  applied  upon  the  notes  remaining  in  the  mortgagee's  hands,  whenever 
the  ])roceeds  Avere  insnflffcient  to  pay  all  in  full.  The  mortgagee  having  trans- 
ferred the  note  and  received  the  consideration  theriefor,  it  would  be  inequi- 
table for  him  to  deprive  the  assignee  of  any  part  of  its  value,  by  insisting 
upon  a  priority  or  even  an  equality  of  right  in  sharing  the  insufficient  pro- 
v-eeds.  Alden  v.  White.  32  Tnd.  App.  Cul,  102- Am.  St.  Rep.  261,  60  X.  E.  .509. 
But  the  following  case  holds  that  they  both  share  ratably;  Donley  v.  Hays, 
17    Serg.    &    R.    400. 


§  1:^04  EQUITY   JUlUbPllUDENCE.  708 


SECTION  IV. 

INTERESTS,    RIGHTS,    AND    L1AB1JJT1E8    OF    THE    MORTGAGOR    AUB 
OF    THE    MORTGAGEE. 

ANALYSIS. 

§   1204.     General    interests    of    the    mortgagor    and    the    mortgagee. 
§§   1205-1208.     I.    Conveyance    by    the    mortgagor. 

§   1205.     Conveyance   "subject   to"   the   mortgage ;    effect   of. 

§   1206.     Grantee   "assumes"   the   mortgage ;    effect   of. 

§   1207.     Rationale   of   the    grantee's    liability. 

§   1208.     Assumption    by    the    mortgagee. 
S§   1209-1214.     XL    Assignment    of    the    mortgage. 

§    1200.     Assignment   at   law   and   in    equity. 

§  1210.  Assignment  of  the  debt  is.  in  equity,  an  Assignment  of  the 
mortgage ;    what    operates    as    such   assignment. 

§   1211.     Equitable  assignment  by  subrogation. 

§   1212.     In    whose    favor    such    equitable    assignn^ents    exists. 

§    1213.     In   whose  favor   such  equitable  assignment  docs  not   exist. 

§    1214.     Right    to    compel     an    actual    assignment. 
§§    121.5-1218.     III.   Rights   and   liabilities   of   mortgagee   in   possession. 

§   1215.     To    whom    the    doctrine    applies    in    different    states. 

§   1216.     With  what  he  is  chargeable;   rents  and  profits,  willful   default. 

§  1217.  His  allowances  and  credits,  disbursements,  repairs,  improve- 
ments,   compensation. 

§    1218.     Liability    to    account. 
§§    1210-1226.     IV.     Redemption    from    the    mortgage. 

§   1219.     By    the    mortgagor ;     suit    to    redeem. 

§    1220.     By    other    persons. 
§§    1221-1226.     Rights    of    contribution    and    of    exoneration    upon    redemption. 

S    1221.     General    doctrine;    classes    of   cases;    equities    equal    or    unequal. 

i?   1222.     1.  Where   their   equities    are   equal;    titles    simultaneous. 

§  1223.  2.  Where  their  equities  are  unequal,  although  the  titles  are 
simultaneous;  tenants  for  life  or  for  years  and  remainder- 
men ;    dowress    and    reversioner. 

§  1224.  3.  Inequality  of  equities  where  titles  are  not  simultaneous; 
between  mortgagor  and  his  grantee  of  a  parcel;  between 
successive    grantees;    inverse    order    of    alienation. 

§  1225.  The  same;  what  circumstances  disturb  these  equities  and  de- 
feat   this    rule. 

§   1226.     4.    A   release   by   the    mortgagee    of   one   or   more   parcels. 

§   1227.     V.    Foreclosure;    foreclosure    proper    or    "strict    foreclosure." 

§   1228.     Foreclosui-e    by    judicial    sale. 

§  1204.     General  Interests   of  Mortgagor   and   Mortgagee. — The 

doctrines  which  prevail  in  this  country  concerning  the  respective 
interests  of  the  mortsrasror  and  the  mort»ap:ee,  and  their  ordinary 
rights  which  arise  therefrom,  have  been  explained  in  the  preceding 
section  II.  of  the  present  chapter.  In  eqnity,  the  mortgagor's  in- 
terest continnes  to  he  the  substantial  ownership  of  the  land,  sub- 


709  INTERESTS   OF    MOnTt^AfiOn    AND   MORTGAGEE.  §  1204 

jett  only  to  the  lien  of  the  mortgage ;  and  in  those  states  where; 
the  purely  equitable  theory  has  been  adopted  this  ownership  is 
the  legal  estate;  in  the  others  it  is  equitable, — the  equity  of  redemp- 
tion. A  mortgagor  may  therefore  deal  with  the  land  in  any  law- 
ful manner,  subject  only  to  the  lien  which  aifeets  it  through  all 
of  his  subsequent  dealings  and  in  all  of  its  subsequent  relations. 
Among  the  necessary  incidents  of  the  mortgagor's  ownership  are 
the  following:  Upon  his  death  intestate,  the  land,  if  owned  in  fee, 
descends  to  his  heirs;  he  may  devise  it  by  will,  and  it  is  subject 
to  dower  and  to  curtesy  in  all  the  states  where  these  life  estates 
are  preserved.  It  is  generally  liable  to  be  levied  on  and  sold  on 
execution  issued  upon  a  judgment  against  the  mortgagor.^  In  all 
the  states  the  mortgagor  is  entitled  to  pos.session  against  third 
persons ;  and  in  all  the  states  Avhich  have  adopted  the  purely  equit- 
able theory,  he  is  entitled  to  possession  against  the  mortgagee  and 
those  claiming  under  him,  until  the  time  Avhen  a  foreclosure  sale 
has  been  finally  consummated.  While  in  possession,  according  to 
either  theory  he  may  use  the  premises  in  any  reasonable  manner, 
and  is  not  accountable  to  the  mortgagee  for  the  rents,  profits,  and 
income  during  such  possession.-  The  interest  of  the  mortgagee, 
in  equity,  is  simply  a  lien,  a  thing  in  action,  a  mere  adjunct  or 
accessory  of  the  debt.  It  is  entirely  personal  assets,  and  on  his 
death  passes  to  his  executors  or  administrators,  may  be  bequeathed 
by  will,  and  is  not  subject  to  dower  or  curtesy.  Like  other  things 
in  action,  it  is  liable  to  be  reached  by  the  creditors  of  the  mort- 
gagee, and  may  be  pledged  by  him,  or  given  as  collateral  security 
for  an  indebtedness.  In  fact,  the  relation  of  the  mortgagee  to  the 
mortgagor  is  purely  a  conventional  one,  and  not  fiduciary.     The 

^  To  tliis  liiibility  there  is  one  mo-it  iiiipoitant  exception.  It  is  the  pre- 
vailing rule — in  some  states  based  upon  statute — that  where  the  mortwaiiee, 
or  otiier  liokler  of  the  mortgage,  elects  to  sue  at  law  on  the  mortgage  debt, 
and  recovers  a  personal  judgment  against  the  mortgagor,  he  cannot,  by  his 
execution,  levy  on  and  sell  the  very  land  itself  which  is  covered  by  the  mort- 
gage, but  must  satisfy  his  judgment  out  of  other  property  (if  any)  of  Ih.e 
mortgagor.  The  reasons  of  this  rule  are  obviously  just.  If  the  mortgaged 
land  was  sold  on  such  a  judgment,  the  purchaser  would  take  it  still  encuin- 
hered  by  the  mortgage ;  it  would  not.  therefore,  sell  for  its  fair  value,  and 
thus  the  mortgagor's  property  would  be  unjustly  sacrificed.  Furthermore, 
since  the  mortgagee  had  a  specific  lien  on  the  particular  tract  by  his  mort- 
gage, he  ought  not.  in  equity  and  justice,  to  obtain  and  enforce  a  general  lien 
by  judgment  upon  the  very  same  tract:  See  Palmer  v.  Foote,  7  Paige,  437; 
Atkins  v.  Sawyer.  1  Pick.  3.51;  11  Am.  Dec.  188;  Washburn  v.  Goodwin,  17 
Pick.  137;  Powell  v.  Williams,  14  Ala.  470;  48  Am.  Dec.  10.5:  Barker  v. 
Pell,  37  Ala.  354.  358;  Baldwin  v.  Jenkins,  23  Mi«s.  206;  Thornton  v.  Pigg, 
24  Mo.  249;  per  contra,  Freeby  v.  Tupper,  15  Ohio.  407;  and  see  Triiiini  v. 
Marsh,   54  N.  Y.   590;    13   Am.   Pep.   623;    and   Cal.   Code   Civ.   Proc,   sec.    726. 

-  In  very  special  cases  the  mortgagor  may  be  restrained  from  committing 
waste  and   tliereby  endangering  the   security.      See   post.    §   1348. 


§  12()G  EQUITY    JURTSPRUDEXCE.  710 

mortgas'e  is  a  mere  security  for  a  debt,  and  imposes  no  duty  upon 
the  mortgagee  to  protect  the  interests  of  the  mortgagor,  unless 
there  is  some  special  covenant  creating  such  a  duty- 

§  1205.  I.  Conveyance  by  the  Mortgagor  Subject  to  the  Mort- 
gage.— The  mortgagor  can  convey  the  entire  mortgaged  premises 
to  a  single  grantee ;  or  he  can  convey  them  in  parcels  to  different 
gi-antees  simultaneously  or  successively;  or  he  can  convey  a  por- 
tion and  retain  the  residue.  Where  the  mortgagor  conveys  by  a 
deed  absolutely  silent  with  respect  to  an  outstanding  mortgage,  the 
gi-antee,  of  course,  takes  the  laud  encumbered  by  the  mortgage,  if 
he  has  actual  notice  of  it,  or  constructive  notice  by  record  oi- 
otherwise.^  Where  a  mortgagor  conveys  by  a  deed  which  states 
simply  that  the  conveyance  is  "subject  to"  a  certain  specified  mort- 
gage, or  words  to  that  effect,  the  grantee  takes  the  land  burdened 
v\'ith  the  lien.  As  between  himself  and  the  grantor-mortgagor,  the 
land  is  the  primary  fund  out  of  which  the  mortgage  debt  should 
bo  paid;  he  cannot  claim  that  the  mortgagor  should  pay  off  the 
mortgage  and  thus  exonerate  the  land."  He  does  not,  however, 
become  personally  liable  for  the  mortgage  debt,  but  the  mortgagor 
remains  personally  liable  for  any  deficiency  arising  upon  a  fore- 
closure sale  of  the  land."  A  grantee  who  thus  takes  a  conveyance 
subject  to  a  mortgage  is  presumed  to  have  included  the  mortgage 
debt  in  the  purchase  price,  and  is  not,  therefore,  permitted  to  dis- 
pute the  validity  of  the  mortgage;  in  this  respect  he  is  in  the 
same   position   as   one    who    expressly   assumes   the    mortgage.** 

§  1206.  The  Same.  Grantee  Assumes  the  Mortgage. — The  mort- 
gagor may  not  only  convey  the  premises  "subject  to"  the  mort- 
gage; he  may  also  convey  them  in  such  a  manner  that  the  grantee 
assumes  the  payment  of  the  mortgage  debt,  and  thus  renders  him- 
self personally  liable  therefor.  The  element  which  lies  at  the  bot- 
tom of  such  assumption,  and  which  alone  gives  it  efficacy  aecord- 

^  Cornell  v.  \\oO(lrutt",  77  N.  Y.  203,  20G,  per  liapallo.  J.  Whetlier  a 
inortgagce  or  liis  assignee  out  of  possession  can  become  a  purchaser  at  a  lax 
sale  of  the  mortgaged  premises,  with  the  same  effect  as  against  the  mort- 
gagor and  other  mortgagees  as  if  lie  were  a  stranger  to  the  estate,  is  a 
(jucstion  on  which  the  authorities  are  in  conflict.  To  the  effect  that  he  cannot, 
see  Hall  v.  Wescott,  15  R.  1.  373,  5  Atl.  629.  Kirch.  .598. 

'■  See  Boxheimer  v.  Gunn,  24  Mich.  372.  Wliere  the  mortgage  is  unrecorded, 
the  subsequent  grantee  may,  by  means  of  a  prior  record,  under  the  operation 
of  the  recording  acts,  obtain  a  title  free  from  the  li<>n  of  the  mortgage  as  a 
bona    fide   purchaser   for   the   value   and    witliont   notice. 

=  Johnson  v,  Zink,  .51  N.  Y.  .333. 

'Belmont  v.  Coman,  22  N.  Y.  438,  78  Am.  Doc.  213:  Elliott  v.  Sackett.  108 
U.    S.    140,   2    Sup.    Ct.    375,    27    L.    cd.    080. 

•'Johnson  v.  Thompson,  129  Mass.  398;  Pratt's  Ex'r  v.  Nixon.  91  Ala.  192, 
8   South.   751. 


711  convey/xck  by  the  moutgaook.  §  i'-iOG 

ing  to  the  theory  held  by  some  courts,  is  the  fact  that  the  mortgage 
debt  is  included  in  tiie  purchase  price  as  a  constituent  part  there- 
of, and  the  grantee  actually  pays  or  secures  to  his  grantor  only  the 
balance  of  the  gross  price  after  deducting  such  debt.  No  particu- 
lar form  of  words  is  necessary  to  create  a  binding  assumption;  it 
is  sufficient  that  the  language  shows  uuequivocallj'  an  intent  on 
the  part  of  the  grantee  to  assume  the  liability  of  paying  the  mort- 
ijage  debt,  but  this  intent  must  clearly  appear.^  When  the  deed 
executed  by  the  grantor  contains  a  clause  sufficiently  showing  such 
an  intent,  the  acceptance  thereof  by  the  grantee  consummates  the 
assumption,  and  creates  a  personal  liability  on  his  part,  which  in- 
ures to  the  benefit  of  the  mortgagee  as  though  he  had  himself 
executed  the  deed."  When  a  grantee  thus  assumes  payment  of  the 
mortgage  debt  as  a  part  of  the  purchase  price,  the  land  in  his  hands 
is  not  only  made  the  primary  fund  for  payment  of  the  debt,  but 
lu^  himself  becomes  personally  liable  therefor  to  the  mortgagee 
or  other  holder  of  the  mortgage.  The  assumption  produces  its 
most  important  effect,  by  the  operation  of  equitable  principles,  upon 
the  relations  subsisting  between  the  mortgagor,  the  grantee,  and 
the  mortgagee.  As  between  the  mortgagor  and  the  grantee,  the 
grantee  becomes  the  principal  debtor  primarily  liable  for  the  debt, 
and  the  mortgagor  becomes  a  surety,  with  all  the  conseciuenees 
flowing  from  the  relation  of  suretyship.  As  between  these  two 
and  the  mortgagee,  although  he  may  treat  them  both  as  debtors 
and  may  enforce  the  liability  against  either,  still,  after  receiving- 
notice  of  the  assumption,  he  is  bound  to  recognize  the  condition 
of  suretyship,  and  to  respect  the  rights  of  the  surety  in  all  of  his 
subsequent  dealings  Avith  them.^    Payment,  therefore,  by  a  grantee 

^See  Conistock  v.  Hitt,  37  111.  542,  546,  1  Ames  Eq.  Jiir.  131),  2  .Scott  482; 
Hopper  V.  Calhoun,  52  Kan.  703,  35  Pac.  816,  39  Am.  St.  Rep.  303  (evidence 
must    be   clear). 

-.(ohns  V.  Wilson,  180  V.  S.  440.  21  Sup.  Ct.  445,  45  L.  ed.  G13;  Toe  v. 
Dixon.  60  Ohio  St.  124,  54  N.  E.  86,  71  Am.  St.  Rep.  713.  It  is  even  held 
that  a  verbal  promise  by  the  grantee  to  pay  the  mortgage  creates  such  a  personal 
liability,  even  though  the  conveyance  appears  on  the  face  of  the  deed  to  be 
merely  subject  to  the  mortgage:  Ordway  v.  Downey,  18  Wash.  412,  51  Pac.  1047, 
63  Am.  St.  Rep.  8!)2  (the  agreement  must  be  established  by  a  clear  preponderance 
of  evidence).  But  this  rule  is  denied  in  Shepherd  v.  ISIay,  115  U.  S.  505,  6 
Sup.  Ct.  110,  29  L.  ed.  456. 

'  Calvo  V.  Davies,  73  X.  Y.  211,  215,  29  Am,  Rep.  130;  Poe  v.  Dixon,  60  Ohio  St. 
124,  54  X.  E.  86,  71  Am.  St.  Rep.  713.  Since  such  grantee  thus  becomes  tiie 
])rincipal  debtor,  primarily  and  absolutely  liable  for  the  debt,  when  he  ])ays 
Uui  mortgage  it  is  completely  extinguished,  when  he  takes  an  assignment 
of  it  it  is  completely  merged.  He  cannot  by  any  form  of  assignment,  legal 
or  equitable,  or  by  subrogation,  keep  the  mortgage  alive  as  against  otlier 
liens  on  the  land:  Birke  v.  Abbott.  103  Ind.  1.1  X.  E.  485,  53  Am.  Rep.  474;  and 
see   ante,    §  797.      On    the    other    Iiand.    when    the    iDortgagor,    iiaving   become   a 


5  1^,)6  EQUITY    JURISPRUDEN«CE,  713 

who  has  assumed  the  entire  mortgage  debt  completely  extinguishes 
the  mortgage;  he  cannot  be  subrogated  to  the  rights  of  the  mort- 
gagee, and  keep  the  mortgager  alive  for  any  purpose.  While  the 
mortgagee  may  release  the  mortgagor  without  discharging  the 
grantee,  his  release  of  the  grantee,  or  his  valid  extension  of  the 
time  of  payment  to  the  grantee,  without  the  mortgagor's  consent, 
would  operate  to  discharge  the  mortgagor.  In  short,  the  doctrines 
concerning  suretyship  must  control  the  dealings  between  these 
three  parties.*  When  land  is  thus  conveyed,  with  an  assumption 
of  a  mortgage  by  the  grantee  contained  in  the  deed,  subsequent 
grantees  holding  under  the  conveyance  are  charged  with  notice, 
and  the  land  continues  to  be  the  primary  fund  for  payment,  as 
though  the  fact  were  recited  in  their  own  deeds.^  In  the  foregoing 
statement  of  the  general  doctrine,  it  has  been  supposed  that  the 
grantee  assumes  paAnnent  of  the  whole  mortgage.  If  a  grantee, 
in  purchasing  a  part  of  the  mortgaged  premises,  assumes  payment 
of  a  part  of  the  mortgage,  he  becomes  personally  and  primarily 
liable  only  for  such  part.*'  The  general  doctrine  is  well  settled 
that  a  grantee  who  thus  assumes  payment,  in  whole  or  in  part, 
of  a  mortgage  as  a  portion  of  the  purchase  price  of  the  land  con- 
veyed to  him  cannot  contest  the  validity  of  the  mortgage  on  any 
ground  and  thus  evade  the  liability  which  he  has  assumed.^ 

surety,  pays  off  the  mortgage,  he  is  entitled  to  liold  it  by  equitable  assignment 
or  subrogation,  for  the  purpose  of  reimbursement  from  the  grantee:  Poe  v. 
Dixon,  liO  Ohio  «t.  124,  54  N.  E.  86,  71  Am.  St.  Rep.  713;  Rice  v.  Sanders, 
152  Mass.  108,  24  N.  E.  1079,  23  Am.  St.  Rep.  804,  8  L.  R.  A.  315.  The 
dealings  of  the  mortgagee  Avith  these  two  parties  are  also  governed  by  the 
doctrines  of  suretyship,  in  his  dealings  with  the  grantee,  at  least  after  notice, 
the  mortgagee  must  respect  the  rights  of  the  mortgagor-surety.  A  valid 
extension  of  the  time  of  payment,  made  by  the  mortgagee  to  the  grantee, 
without  the  consent  of  the  mortgagor,  will  therefore  discharge  the  mortgagor 
from  his  liability:  Calvo  v.  Davies,  supra;  Union  Jlut.  Life  Ins.  Co.  v.  Han- 
ford,  143  U.  S.  187,  12  Sup.  Ct.  437,  30  L.  ed.  118;  IMerriman  v.  Miles.  54 
Xebr.  560,  74  N.  W.  861,  69  Am.  St.  Rep.  731.  On  the  question  of  the  grantor's 
))Ower  to  release  the  grantee  from  his  assumption  of  personal  liability,  without 
the  mortgagee's  consent,  there  is  some  conflict.  See  Pom.  Eq.  Jur.,  note,  at 
this  point;  compare  Gifford  v.  Corrigan,  117  X.  Y.  257,  22  >r.  E.  756,  15 
Am.  St.  Rep.  508,  0  L.  R.  A.  610,  with  :\Ieech  v.  Ensign,  49  Conn.  191,  44 
Am.    Rep.  225. 

*  Xelson   v.   Brown,   140  Mo.  580,  41   S.   W.   960,   62  Am.   St.   Rep.  755. 

'•"  Whether  a  remote  grantee  of  the  mortgagor  is  liable  on  his  agreement  to 
assume  the  debt  in  the  case  when  his  immediate  grantor  was  not  personally 
liable,  is  a  question  on  which  the  cases  disagree.  Compare  Enos  v.  Sanger, 
96  Wis.  151,  70  N.  W.  1069,  65  Am.  St.  Rep.  38,  37  L.  R.  A.  862,  with  Hicks 
v.  Hamilton,  144  :\lo.  495,  46  S.  W.  432,  66  Am.  St.  Rep.  431. 

"Snyder  v.  Robinson,  35  Ind.  311,  9  Am.  Rep.  738. 

'Scanlon  v.  Grimmer,  71  Minn.  351,  70  Am.  St.  Rep.  326,  74  X.  W.  146  j 
Cramer  v.  Lepper,  26  Ohio  St.  59,  20  Am.  Rep.  756;  and  see  ante,  §  937. 


713  ASSIGNMENT    OF    THE     .MOKTCiAGi;.  §  1209 

§1207.  Rationale  of  the  Grantee's  Liability, — The  ground  of 
the  grantee's  liability  adopted  by  the  courts  of  a  large  majority 
of  the  states  is  that  of  contract.  It  is  an  application  of  the  general 
doctrine,  so  widely  prevailing  in  this  country  that  it  may  properly 
be  called  an  American  doctrine, — where  A  makes  h  promise  directly 
to  B,  for  the  benefit  of  C,  upon  a  consideration  moving  alone  from 
E.  (',  being  the  party  beneficially  interested,  may  treat  the  promise 
as  though  nuide  to  himself,  and  may  maintain  an  action  at  law 
upon  it  in  his  own  name  against  A,  the  promisor.  According  to  this 
generally  accepted  view,  the  liability  of  the  grantee  who  thus 
assumes  the  payment  of  an  outstanding  mortgage  does  not  depend 
upon  any  extension  of  the  equitable  doctrine  concerning  suln-oga- 
■!ion;  it  is  strictly  legal,  arising  out  of  a  contract  binding  at  law; 
the  mortgagee,  instead  of  enforcing  the  liability  by  a  suit  in 
etjuity  for  a  foreclosure,  may  maintain  an  action  at  law  against 
the  grantee  upon  his  promise,  and  recover  a  personal  judgment  for 
tiie  whole  mortgage  debt.^  Another  and  entirely  different  ration- 
ale is  adopted  by  the^courts  of  certain  states:  that  the  liability  of 
the  grantee  to  the  mortgagee  does  not  arise  from  contract,  and 
does  not  exist  at  law;  but  it  results  from  an  application,  or  more 
correctly  an  extension,  of  the  equitable  doctrine  of  subrogation. 
Since  the  mortgagor  becomes  a  surety,  the  creditor  is  entitled  by 
subrogation  to  all  the  securities  which  he  holds  from  the  principal 
debtor,  and  is  thus  entitled  in  equity  to  enforce  the  promise  made 
to  him  by  the  grantee.-^  According  to  the  general  theory  first 
above  stated,  the  grantee's  assumption  and  promise  are  so  com- 
pletely for  the  benefit  of  the  mortgagee  that  the  grantor  can  main- 
tain no  action  thereon  merely  because  the  grantee  has  failed  to 
perform  his  undertaking;  it  is  only  where  the  grantor  has  him- 
self paid  the  mortgage  that  he  becomes  subrogated  to  the  rights 
of  the  mortgagee,  aiul  is  entitled  to  enforce  it  against  the  grantee,^ 

§  1209.  II,  Assignment  of  the  Mortgage. — In  the  few  states 
which  still  retain,  in  the  ordinary  transactions  of  business  and 
modes  of  administering  justice,  the  strict  legal  theory  according 
to  which  the  mortgagee  obtains  and  holds  the  legal  estate  in  the 
land,  an  assignment  of  the  mortgage  fully  elBcient  and  operative 
must  necessarily  amount  to  a  conveyance  of  the  legal  estate  in  the 
mortgaged  premises.     Such  an  assignment  must,  therefore,  be  an 

^  See  Pomeroy  on  Remedies,  see.  130,  and  cases  cited:  Sohniiicker  v.  Ribcrt, 
IS  Kan.  104,  26  Am.  Rep.  765;  Starbird  v.  Cranston,  24  Colo.  20.  48  Pac.  652; 
AlcKay  v.  Ward,  20  I^tah  140.  57  Pae.  1024,  46  L.  R,  A.  623, 

•-■  Knapp  V.  Connecticut  Mnt,  L.  Ins.  Co.,  85  Fed.  329.  29  C,  C.  A.  171.  40  L. 
R.  A.  861:  (Jreen  v.  Stone,  54  N.  J.  Eq.  387,  34  Atl.  1099.  55  Am.  St.  Rep.  577. 

'Avres  v.  Dixon,  78  N.  Y.  318,  322,  323. 


§  1210  EQUITY    JURISPRUDENCE.  714 

instrument  under  seal,  or  at  least  a  written  instrument  sufficient 
to  convey  the  legal  title/  We  are  only  concerned  with  that  mode 
of  assignment  which  is  valid  and  efficient  in  equity,  which  operates 
to  vest  the  assignee  with  all  the  mortgagee's  interests,  rights,  reme- 
dies, and  liabilities  which  are  recognized  and  enforced  in  equity, 
and  are  capable  of  being  transferred.-  A  formal  written  assign- 
ment by  which  the  mortgagee  in  express  terms  transfers  the  mort- 
gage and  the  debt  secured  thereby,  and  the  bond,  note  or  other  evi- 
dence of  the  debt,  is  always  proper,  and  possesses  many  advan- 
tages, and  should  always  be  adopted,  when  possible,  as  a  matter  of 
expediency,^  but  it  is  not  essential. 

§  1210.  Assignment  of  the  Debt  Carries  with  it  the  Mortgage — 
What  Operates  as  an  Assignment. — The  fundamental  principle  upon 
which  this  doctrine  of  assignment  rests  is,  that  the  debt  is  the  prin- 
cipal thing,  and  the  mortgage  is  only  an  acce.ssory  or  incident  of 
the  debt,  and  can  have  no  separate  independent  existence.^  The 
doctrine  is  therefore  universal,  that  any  valid  operative  assign- 
ment of  the  debt,  whether  evidenced  by  a  bond,  note,  or  otherwise, 
is  also  an  efficient  assignment  of  the  mortgage,  and  vests  the  as- 
signee with  all  the  equitable  rights,  interests,  and  remedies  of  the 
mortgagee.-      In  the  absence  of  a  contrary  statutory  requirement, 

^  It  should  be  obsen^ed  that  in  the  cases  involving  these  rules  the  question 
is,  whether,  in  accordance  with  the  strict  legal  theory,  the  assignment  trans- 
ferred the  legal  estate  in  the  land  to  the  assignee — a  question  purely  legal,  and 
wholly  foreign  to  the  equitable  system  of  mortgage  which,  practically  at  least, 
prevails  in  the  great  majority  of  the  states,  even  in  many  of  those  Avhich 
also  retain  the  legal  view.  See  Barrett  v.  Hinckley,  124  111.  .'52,  14  X.  E. 
863,   7   Am.   fSt.   Rep.  331,  Kirch.   634,   H.   &   B.   557. 

'■'  It  would,  however,  be  very  misleading  to  call  this  an  "equitable"  assign- 
ment, as  distinguished  from  that  first  above  mentioned,  as  though  its  operation 
were  confined  to  courts  of  equity,  and  it  conferred  rights  recognized  only  in 
equity.  In  England  and  in  ^Massachusetts,  and  in  a  few  other  states,  such  an 
assignment  is  undoubtedly  "equitable";  but  in  most  of  the  states  the  rights 
which  it  confers  are  protected  by  all  the  courts. 

'  Among  these  advantages  is  the  power  of  having  the  assignment  recorded, 
with  the  protection  which  the  recording  acts  give  to  the  assignee.  See  ante, 
SS  733,  734.      ' 

'  Carpenter,  v.  Longan,  16  Wall.  271,  275,  21  L.  ed.  313,  Kirch.  675. 

^Tliis  proposition  is  universal  in  equity.  In  all  the  states  adopting  the 
second  system,  as  described  in  the  previous  section  II.,  such  assignment  is 
complete  and  absolute.  In  some  of  the  states  adopting  the  first  system,  such 
assignment  is  regarded  as  simply  equitable,  since  the  assignee  does  not  thereby 
acquire  the  legal  estate  in  the  mortgaged  premises:  but  in  several  other  states 
of  the  same  class,  I  think  this  form  of  assignment  is  treated  as  practically 
complete  and  absolute:  Page  v.  Pierce,  26  N.  H.  317,  Kirch.  630;  Green  v.  Hart, 
1  .lohns.  580,  Kirch.  fi22 :  Perkins  v.  Sterne,  23  Tex.  561,  76  Am.  Dec.  72. 
That  an  assignment  of  a  part  of  the  debt  secured  carries  with  it  a  propor- 
tionate   part    of   the    mortgage    has    already    been    sho\vn:      Ante,    §  1202,    and 


715  ASSIGNMENT    OF    THE     MORTGAGE.  §  1210 

such  assignment  need  not  even  be  in  writing;  it  may  be  merely 
verbal  with  delivery.  It  also  ft)llows,  as  a  necessary  consequence 
of  the  same  principle,  that  an  assignment  of  the  mortgage  alone, 
without  the  debt,  is  wholly  nugatory  in  equity,  and  passes  no 
equitable  rights  to  the  assignee.  Even  in  the  states  where  the  legal 
estate  in  the  premises  may  be  conveyed  by  the  mortgagee,  such 
an  assignment  would  only  vest  the  assignee  with  the  naked  legal 
title  held  by  him  in  trust  for  the  one  who  owned  the  debt.^  The 
rights  of  priority  acquired  by  the  assignee,  as  governed  by  the 
original  doctrines  of  equity,  and  as  modified  by  the  recording  acts, 
and  how  far  he  takes  subject  to  or  freed  from  existing  equities  in 
favor  of  the  mortgagor  and  others,  have  already  been  considered 
in  a  previous  chapter.* 

see  iluller  v.  VVadlington,  5  S.  C.  342.  A  verbal  assignment  with  delivery  is 
sutticient,  in  the  absence  of  a  statutory  requirement  of  writing:  Curtis  v.  Moore, 
152  N.  Y.  159,  46  X.  E.  1G8,  57  Am.  St.  Rep.  506. 

■'Carpenter  v.  Longan,   16  Wall.   271,  Kirch.   675. 

*  See  ante,  vol.  2,  §§  703-715.  When  a  mortgage  is  given  to  secure  a 
nrgotiable  note,  and  the  note  and  mortgage  are  assigned  before  maturity, 
the  question  whether  the  asf:ignee  takes  the  mortgage  free  from  all  equities 
as  in  the  case  of  a  bona  fide  transferee  of  such  a  note  alone,  or  whether  he 
takes  it  subject  to  all  equities,  is  examined  ante,  §  704,  and  cases  are  cited 
reaching  exactly  opposite  conclusions.  The  following  case,  also,  maintains  the 
rule  that  such  assignee  takes  the  mortgage  free  from  all  equities:  Carpenter 
V.  Longan,  16  Wall.  271,  21  L.  ed.  .313,  Kirch.  675.  On  the  other  hand,  the 
following  additional  case  holds  such  assignment  to  be  controlled  by  the  general 
rule,  and  therefore  subject  to  all  existing  equities:  Bailey  v.  Smith,  14  Ohio  St. 
396,  84  Am.  Dec.  385,  Kircli.  667.  The  reasons  for  the  ruling  tliat  such  assignee 
takes  free  from  all  equities  are  stated  with  as  mucli  force  as  possible  by 
Swayne,  J.,  in  Carpenter  v.  Longan,  supra.  Reduced  to  their  lowest  terms, 
they  amount  to  this:  that  tlie  debt  is  the  principal  thing,  and  the  mortgage 
is  a  mere  adjimct  of  the  debt,  and  has  no  existence  separate  from  the  debt. 
Admitting  the  full  force  of  this  reasoning,  the  conclusion  is,  in  my  opinion, 
the  result  of  a  false  analogj'.  The  answer  to  it  is  very  short,  but,  as  it  seems 
to  me,  very  complete.  The  note  and  the  mortgage  do  not  together  consti- 
tute a  promissory  note.  The  conclusion  reached  by  this  line  of  cases  not 
only  destroys  the  uniformity  and  consistency  of  the  doctrines  concerning 
mortgages,  but  misapprehends  and  misapplies  the  peculiar  doctrines  con- 
cerning negotiable  instruments.  The  most  distinctive  feature  of  negotia- 
bility— the  rule  that  the  bona  fide  transferee  takes  a  bill  or  note  free  from 
defenses — had  its  origin  in  the  customs  of  merchants.  It  was  first  adopted 
by  the  courts,  and  lias  ever  since  been  maintainetl,  solely  with  a  vieic  to  pro- 
mote the  interests  of  merchants,  and  to  secure  the  success  and  freedom  of 
mercantile  and  commercial  dealings.  A  promissory  note  accompanied  bj'^  a 
mortgage  is  not  in  any  sense  n  mercantile  or  commercial  security;  all  the 
reasons  of  the  peculiar  rule  of  the  law  merchant  fail  in  their  application  to 
it.  The  courts  which  extend  this  rule  to  a  note  and  mortgage  are  misled 
by  a  false  analogy;  in  order  to  reach  their  conclusion,  they  are  obliged  to 
treat  the  mortgage  as  a  nullity — not  merely  as  an  incident  of  the  note, 
but   as   having  ncliinllv   no   existence.      I   am   strongly   of  the   opinion   that   the 


§  1.^12  EQUITY    JUKISPKUDEXCE.  T16 

§  1211.  Equitable  Assignment  by  Subrogation. — Under  some  eir- 
eiiinstances,  the  payment  of  the  amount  due  on  a  mortgage,  when 
made  by  certain  classes  of  persons,  is  held  in  equity  to  operate 
as  an  assignment  of  the  mortgage.  By  means  of  the  payment,  the 
mortgage  is  not  satisfied  and  the  lien  of  it  destroyed,  but  equity 
regards  the  person  making  the  payment  as  thereby  becoming  the 
owner  of  the  mortgage,  at  least  for  some  definite  purposes,  and 
the  mortgage  as  being  kept  alive,  and  the  lien  thereof  as  preserved, 
for  his  benefit  and  security.  This  equitable  result  follows,  although 
no  actual  assignment,  written  or  verbal,  accompanied  the  payment, 
and  the  securities  themselves  were  not  delivered  over  to  the  person 
making  the  payment,  and  even  though  a  receipt  was  given  speak- 
ing of  the  mortgage  debt  as  being  fully  paid,  and  sometimes  even 
though  the  mortgage  itself  was  actually  discharged  and  satisfied 
of  record.  This  equitable  doctrine,  Avhich  is  a  particular  applica- 
tion of  the  broad  principle  of  subrogation,  is  enforced  whenever  the 
person  making  the  payment  stands  in  such  relations  to  the  prem- 
ises or  tc  the  other  parties  that  his  interests,  recognized  either  by 
law  or  by  equity,  can  only  be  fully  protected  and  maintained  by 
regarding  the  transaction  as  an  assignment  to  him,  and  the  lien 
of  the  mortgage  as  being  kept  alive,  either  wholly  or  in  part,  for 
his  security  and  boncfit. 

§  1212.  In  whose  Favor  Such  Equitable  Assignment  Exists. — 
Equit}'  does  not  admit  the  doctrine  of  equitable  assignment  in 
favor  of  every  person  who  pays  off  a  mortgage.  Such  relations 
must  exist  toAvards  the  mortgaged  premises  or  Avitli  the  other  par- 
ties, that  the  payment  is  not  a  purely  voluntary  act,  but  is  an 
equitably  necessary  or  proper  means  of  securing  the  interests  of 
the  one  making  it  from  possible  loss  or  injury.  The  payment  must 
be  made  by  or  on  behalf  of  a  person  who  had  some  interest  in  the 
premises,  or  some  claim  against  other  parties,  which  he  is  entitled, 
in  equity,  to  have  protected  and  secured.  A  mere  stranger,  there- 
fore, who  pays  off  a  mortgage  as  a  purely  voluntary  act  can  never 
be  an  equitable  assignee.  In  general,  when  any  person  having  a 
subsequent  interest  in  the  premises,  and  who  is  therefore  entitled 
to  redeem  for  the  purpose  of  protecting  such  interest,  and  who  is 
not  the  principal  debtor  primarily,  and  absolutely  liable  for  the 
mortgage  debt,  pays  off  the  mortgage,  he  thereby  becomes  an 
equitable  assignee  thereof,  and  may  keep  alive  and  enforce  the  lien 
so  far  as  may  be  necessary  in  equity  for  his  own  benefit;  he  is 
subrogated  to  the  rights  of  the  mortgagee  to  the  extent  necessary 


cases  of  wliioli   the   Illinois  decisions  are  an  example  rest  upon  a   tnic  founda- 
tion of  principle. 


717  SUJUtOUATlON    ox    PAYMENT    OF    MOHTGAGE.  §  l"<Jl-i 

for  his  own  equitable  protection.^  The  doctrine  is  also  justly 
extended,  by  analoity,  to  one  who,  having  no  previous  interest,  and 
being  under  no  obligation,  pays  off  the  mortgage,  or  advances 
money  for  its  payment,  at  the  instance  of  a  debtor  party  and  for 
his  benefit;  such  a  person  is  in  no  true  sense  a  mere  stranger  and 
volunteer.- 

§  1213.  In  whose  Favor  Such  Equitable  Assignment  does  not  Ex- 
ist.— On  the  other  hand,  if  pa^nnent  of  the  mortgage  debt  is  made 
to  the  mortgagee  or  other  holder  of  the  mortgage,  by  a  party  who 
is  himself  personally  and  primarily  liable  for  the  debt,  who  is  in 
any  manner  and  by  any  means  the  actual  primary  debtor,  whose 
dut}^  it  is  to  pay  the  debt  absolutely,  and  before  all  others,  such 
payment  operates  ipso  facto  as  an  end  of  the  mortgage,  and  the 
lien  is  completely  destroyed.  The  party  so  paying  is  not  subro- 
gated to  the  rights  of  the  mortgagee;  there  is  no  equitable  assign- 
ment to  him  of  the  mortgage  security;  even  if  he  should  receive 
a  formal  assignment,  the  mortgage  could  not  be  thus  kept  alive, 
but  would  be  wholly  merged  and  ended. ^ 

§  1214.  The  Right  to  Compel  an  Actual  Assignment. — Whether 
the  equitable  assignee  may  compel  an  actual  assignment  is  a  ques- 
tion which  has  received  conflicting  answers  from  different  courts. 
Some  cases  hold  that  every  person  w^ho,  on  payment,  becomes  an 
equitable  assignee  is  entitled  to  compel  the  execution  of  a  formal 
assignment  of  the  mortgage  by  the  mortgagee  or  other  holder,  for 
the  purpose  of  perfecting  his  own  equitable  right  of  subrogation.^ 
By  other  cases  the  position  is  maintained  that  such  person  must, 

'Muii-  V.  Berksliiip.  ."52  Ind.  140,  1.51:  Ellsworth  v.  Lockwood,  42  X.  Y. 
89.  07;  Ohmer  v.  l^nyer.  S9  Ala.  273,  7  South.  66.3.  The  class  of  persons  coming 
■vvithin  the  description  of  the  text  Avho  are  equitable  assignees,  and  thvis  sub- 
rogated to  the  mortgagee  by  tlie  act  of  payment,  include  the  grantee  from  the 
mortgagor  or  any  subsequent  grantee  who  has  taken  the  land  simply  subject^ 
to  tlie  mortgage;  the  heir  or  devisee  of  the  mortgagor;  the  widow  of  the 
mortgagor  or  of  any  subsequent  OAvner;  a  subsequent  encumbrancer  by  mort- 
gage, judgment,  or  otherwise;  a  subsequent  lessee,  and  the  like.  The  mort- 
gagor liimself  wlio  has  conveyed  tlie  premises  to  a  grantee  in  such  manner  that 
the  latter  has  assumed  payment  of  tlie  mortgage  debt  becomes  an  equitable 
assignee  on  payment,  and  is  subrogated  to  the  mortgagee,  so  far  as  is  necessary 
to  enforce  his  erfiiift/  of  r^iuihursenirnf  or  exoneration   front,  such  grantee. 

■-.\mick  V.  Woodworth.  58  Oliio  St.  86.  .50  X.  E.  437;  Warford  v.  Hankins, 
1.50  hid.  480,  i50  X.  E.  468;  Crippen  v.  Chappel,  .3.5  Kan.  405,  11  Pac.  45.3, 
57  Am.   IJep.   187. 

In  tills  (loseription  ar"  iiichidcd  the  mortgagor  himself,  so  long  as  he 
remains  the  principal  debtor,  and  lias  not  changed  his  relations  by  a  convey- 
ance, and  also  the  granlee  from  ilie  mortgagor  who  has  assumed  payment  of 
the  mortgage  debt,  and  llius  rendered  himself  the  ))rinci])al  and  primary 
debtor  therefor:      l?irke  v.   Abbott.    10.3    Ind.    1,    1   X.   E.   485,   53   Am.    Hep.  474. 

^Twombly  v.   Cassidy,  82   X.    Y.    155. 


^  1-^16       '  EC^UITY    JURISPRUDEXCE.  718 

in  general,  rely  upon  his  equitable  assignment  and  right  of  subro- 
gation, and  cannot  compel  the  execution  of  a  formal  assignment; 
that  only  a  technical  surety  is  entitled  to  perfect  his  right  of 
subrogation  by  calling  for  an  assignment  in  writing.- 

§  1215.  III.  Rights  and  Liabilities  of  the  Mortgagee  in  Posses- 
sion.— It  has  been  shown  in  the  preceding  section  II.  that  in  a 
portion  of  the  states  adopting  the  first  or  legal  system  the  mort- 
gagee is  entitled  to  possession  at  once  upon  the  execution  of  the 
mortgage ;  that  in  the  remaining  states  of  the  same  class  he  is 
entitled  to  possession  only  upon  the  mortgagor's  default;  and  that 
in  either  case,  upon  thus  acquiring  the  possession,  he  can  retain 
it  until  the  mortgage  is  redeemed.  In  all  the  states  adopting  the 
second  system,  the  mortgagee  is  not  entitled  to  possession,  either 
before  or  after  a  breach  of  the  condition.  If,  however,  he  actually 
acquires  possession,  with  the  consent  of  the  mortgagor,  or  in  any 
other  lawful  manner,  although  the  nature  of  his  interest  is  not 
thereby  altered,  he  is  entitled  to  retain  such  possession  until  the 
mortgage  is  redeemed  or  paid.^  The  rights  and  consequent  lia- 
bilities of  the  mortgagee  who  is.  actually  and  lawfully  in  posses- 
sion, as  against  the  mortgagor  and  those  claiming  under  or  through 
him,  are  thus  virtually  the  same  in  all  the  states,  as  well  in  those 
adopting  the  second  as  in  those  adopting  the  first  system,  as  here- 
tofore described.  In  order,  however,  that  these  special  rights  and 
liabilities  may  arise  from  his  possession,  it  must  be  a  possession 
taken  and   held  by  him  as  mortgagee.- 

§  1216.  With  What  He  is  Chargeable— Rents.— The  general  duty 
of  the  mortgagee  in  possession  towards  the  premises  is  that  of  the 
ordinary  prudent  owner.  He  must  account,  in  general,  for  their* 
rents  and  profits,  or  for  their  occupation  value.  When  the  land  is 
in  the  occupation  of  tenants,  he  is  chargeable  with  the  gross  actual 
rents  and  profits  received,  and  with  no  more,  unless  he  has  been 
guilty  of  a  willful  default.^  A¥hen  the  land  is  occupied  by  the 
mortgagee  himself,  he  is  chargeable  with  the  fair  annual  value  as 
an  occupation  rent.-  Willful  default:  He  is  also  chargeable  with 
losses  occasioned  by  his  willful  default.'' 

=  Holland  v.  Citizens'  Sav.  Bank,  IG  R.  I.  734.  10  All.  054,  8  L.  R.  A.  .553. 

^See  ante,  §  1189. 

==  Parkinson  v.  Hanbury,  L.  R.  2  H.  L.   1,  2  De  Gex,  J.  &  S.  4.50,  Kirch.  550. 

^Parkinson  v.  Hanbury,  L.  R.  2  H.  L.  1,  Kirch.  550;  Shaoffer  v.  Chambers, 
6  N.  J.  Eq.  548,  47  Am.  Dec.  211,  Kirch.  548. 

=  Barnett  v.  Nelson,  54  Iowa  41,  37  Am.  Rep.  183,  6  N.  W.  41. 

^  This  includes  losses  by  his  willful  or  negli<?ent  failure  to  collect  rent,  or  to 
obtain  a  better  rent,  or  suffering  the  premises  to  remain  in  the  possession  of 
an  insolvent  tenant,  and  the  like:  Parkinson  v.  Hanbury,  Kirch.  550.  Also, 
committing    or    suffering    acts    of    waste    or    spoliation:       Whiting    v.    Adams, 


719  MORTCiAGKK    JX     I'O.SSKSSJO-V.  §  1218 

§  1217.  Allowances  and  Credits.  Repairs,  Disbursements.— The 
mortgauee  is  allowed,  and  credited  in  his  aeeunnt,  with  the  cost 
of  all  ordinary,  reasonably  necessary  repairs  made  to  the  premises 
and  with  all  reasonable  disbursements  and  expenses  necessary  for 
their  proper  management  and  protection.^  Improvenients:  The 
mortgagee  will  be  allowed  for  permanent  improvements,  increasing 
tile  value  of  the  estate,  if  made  ivitli  the  consent  or  acquiescence  of 
the  mortgagor;  but  he  cannot  be  allowed  for  such  expenditures 
when  made  without  the  mortgagor's  consent.  He  is  bound  to  keep 
the  property  without  unreasonable  deterioration,  and  is  therefore 
credited  with  necessary  repairs;  but  he  has  no  right  to  enhance 
the  value  of  the  estate,  and  thus  render  it  more  difficult  for  the 
nuirtgagor  to  redeem.-  Cornpensation:  The  mortgagee  cannot  charge 
any  commissions  or  other  compensation  for  his  services,  since  they 
are  rendered  primarily  for  his  own  benefit." 

§  1218.  Liability  to  Account. — The  mortgagee  in  possession  is 
bound  to  account,  upon  the  basis  of  charges  and  allowances  above 
described,  not  only  to  the  mortgagor,  but  to  subsequent  mort- 
gagees, if  he  has  notice  of  their  encumbrances.^  This  accounting 
belongs  exclusively  to  the  equitable  jurisdiction,  and  can  be  en- 
forced only  in  a  suit  to  redeem,  brought  by  the  mortgagor  or  subse- 
quent encumbrancer.-  Whenever  the  net  amount  of  annual  rents 
or  occupation  value  received  by  the  mortgagee  exceeds  the  in- 
terest then  due,  the  accounting  is  taken  with  annual  rests."  If 
the  mortgagee  remains  in  possession  after  the  mortgage  debt  has 
been  fully  paid,  he  becomes  a  trustee  for  the  mortgagor,  and  is 
chargeable  with  interest  on  the  net  excess  of  rents  received  by 
him;  but  the  mortgagor  can  only  enforce  his  rights  to  the  land 
by  an  equitable  action  for  an  account  and  to  redeem.^ 

6G  Vt.  679,  30  Atl.  32,  44  Am.  St.  Rep.  875,  25  L.  R.  A.  598;  ShacfTcr  v. 
Cliambers,  6  N.  J.  Eq.  548,  47  Am.  Dec.  211,  Kirch.  548. 

*  What  repairs  and  expenses  are  reasonable  must  depend,  largely  upon  the 
circumstances  of  each  case.  The  payment  of  taxes  is  a  proper  disbursement: 
Sidenberg  v.  Ely,  90  N.  Y.  263,  43  Am.  Rep.  163,  Kirch.  564.  The  mortgagee 
in  possession  is  only  bound  to  make  necessary  repairs:  Godfrey  v.  Watson,  3 
Atk.  517,  Kirch.  563;  Dexter  v.  Arnold,  2  8um.  108,  Fed.  Cas.  No.  5608,  Kirch. 
-522. 

=  Moore  v.  Cable,  1  Jolms.  Ch.  385,  Kirch.  524;  Mickles  v.  Dillayo,  17  N.  Y. 
80,  Kirch.  526. 

=  Moss  V.  Odell,  141  Cal.  335,  74  Pac.  990. 

'  Long  V.  Richards,  170  Mass.  120,  48  N.  E.  1083,  64  Am.  St.  Rep.  281. 

-  Even  in  the  states  adopting  the  second  or  equitable  system,  the  mortgagor 
cannot  recover  the  land  by  an  action  of  ejectment,  but  must  sue  in  ecjuily 
for  a  redemption,  in  which  an  accounting  can  be  had :  Hubbell  v.  Moulsoii, 
53  X.  Y.  225,   13  Am.  Rep.  519,  Kirch.  334;   and  see  ante.   §  1189. 

'Jsliaeffer  v.  Chambers,  6  N.  J.  Eq.  548,  47  Am.  Dec.  211,  Kirch.  548;  Van 
Vroiikor  v.  Eastman,  7   Met.   157,  Kircii.   561. 

'Hubbell  V.  Moulson,  53  N.   Y.  225,   13  Am.   Ri^p.   519,  Kirch.  334. 


§  1219  EQUITY    JURISPRUDENCE.  720 

§  1219.     IV.     Redemption — By  the  Mortgagor. — As  has  already 

l.'een  shown,  the  right  of  redemption  is  the  very  essential  element 
of  the  equitable  conception  of  a  mortgage.  If  an  instrument  is 
once  a  mortgage,  nothing,  in  general,  can  destroy  the  equitable 
right  of  redemption  except  a  valid  and  complete  foreclosure,  or  the 
bar  arising  expressly  or  by  analogy  from  the  statute  of  limitations, 
or  conduct  of  the  mortgagor  amounting  to  an  estoppel.  Strictly 
speaking,  redemption  is  the  "buying  back"  and  recovering  the 
legal  estate  by  the  mortgagor  after  it  has  passed  to  the  mortgagee, 
lender  the  original  common-law  theory,  the  redemption  by  the 
mortgagor  took  place,  not  only  after  the  mortgagee  had  acquired 
the  legal  estate  by  the  mortgage,  but  after  he  had  taken  possession 
of  the  mortgaged  premises.  The  same  conditions  of  the  redemption 
still  substantially  exist  in  all  the  states  which  have  adopted  the 
fiist  system  as  described  in  the  preceding  section  11.^  In  those 
states  which  have  adopted  the  second  system,  the  mortgagor  may 
have  the  same  suit  and  the  same  relief  whenever  the  mortgagee 
has  actually  taken  possession;  but  such  cases  are  quite  rare,  for 
the  mortgagor  is  generally  left  in  possession.  It  is,  however,  a  set- 
tled doctrine  in  all  these  states  that  the  mortgagor  in  possession 
may  maintain  a  similar  equitable  suit  whenever,  from  a  dispute 
as  to  the  amount  due  or  any  other  cause,  the  mortgagee  refuses  to 
accept  payment  and  to  discharge  the  mortgage.  The  mortgagor 
can  always  come  into  a  court  of  equity  and  obtain  a  decree  remov- 
ing the  lien  of  the  mortgage.  Although  this  suit  is  uniformly 
termed  a  "suit  to  /-efZeern,"  and  the  relief  is  called  "redemption." 
yet  it  is  really  one  to  free  the  mortgagor's  land  from  the  encum- 
brance, to  compel  the  mortgagee  to  accept  the  amount  actually 
due,  if  any.  and  to  discharge  the  mortgage  of  record.-  The  es- 
sential requisites  of  maintaining  the  suit  are,  that  the  mortgage  debt 
should  be  due  and  payable,  that  the  mortgagor  should  offer  to 
pay  whatever  amount  is  due,  and  should   pay  the  same  when  as- 


*At  any  time  before  Iiis  right  is  cut  off  by  foreclosure  or  barred  by  the 
statute  of  lihiitations,  the  mortgagor  may  maintain  a  suit  for  a  redemption, 
in  which  an  accounting  is  had,  the  amount  of  the  debt  still  due  is  ascertained, 
and  upon  payment  of  this  amoimt  the  mortgagee  is  decreed  to  reconvey.  In 
several  of  the  states  adopting  this  general  system,  the  original  doctrine  is 
so  far  relaxed  that  no  reconveyance  from  the  mortgagee  is  necessary,  but 
the  legal  estate  vests  in  the  mortgagor  ipso  facto  of  his  payment.  See  ante, 
S  1187.  1  would  remark  that  in  all  the  discussions  of  the  text  T  am  speaking 
only  of  the  rquili/  of  redemption,  which  exists  solely  as  a  part  of  the  equitable 
conception  of  mortgage.  Tlie  sfatKtnrii  riglit  of  redeeming  after  foreclosure 
or  execution  sale,  given  by  the  legislnlinn  of  certain  states,  forms  no  part  of 
equity    jurispriulence. 

MXiubenspeck  v.    Piatt.  22  (^al.  .'J.'^O.  3:i5. 


721  mortgages:    coxTJaBuxiox  and  exoneration.  §  12"21 

certained  and  lixed  by  the  decree,  and  that  the  relief  should  be 
sontiht  in  equity." 

§  1220.  The  Same.— By  Other  Persons.— Any  person  who  hohls 
a  legal  estate  in  the  mortgaged  premises,  or  in  any  part  thereof, 
derived  through,  under,  or  in  privit}^  with  the  mortgagor,  and 
any  person  holding  either  a  legal  or  equitable  lien  on  the  premises, 
or  any  part  thereof,  under  or  in  privity  with  the  mortgagor's  estate, 
may  also  in  like  manner  redeem  from  the  prior  mortgage.  No  such 
redemption,  however,  is  possible  unless  the  mortgage  debt  is  duo 
and  payable,^  nor  unless  the  mortgage  is  wholly"  redeemed  by  pay- 
ment of  the  entire  amount  of  the  mortgage  debt.  The  debt  being 
a  unit,  no  party  interested  in  the  whole  premises,  or  in  any  portion 
of  them,  can  compel  the  mortgagee  to  accept  a  part  of  the  debt, 
aiul  to  relieve  the  i)roperty  pro  tanto  from  the  lien.-  Furthermore, 
if  the  person  redeeming  has  only  a  partial  interest  in  the  premises, 
and  there  are  other  partial  owners  also  interested  in  having  the 
lien  of  the  mortgage  removed  from  their  estates, — such  as  co- 
ovmers,  life  tenants,  reversioners,  remaindermen,  and  the  like, — 
he  cannot  compel  them  in  the  first  instance  to  advance  their  pro- 
portionate shares  for  the  purpose  of  paying  off  the  debt ;  he  must 
himself  redeem  the  whole  mortgage,  and  his  only  equity  against 
them  consists  in  his  right  to  enforce  the  mortgage  upon  their  estates 
as  a  security  for  obtaining  a  suhsequcnt  contribution." 

§  1221.  Rights  of  Contribution  and  of  Exoneration  upon  Re- 
demption.— In  general,  whenever  redemption  by  one  of  the  above- 
mentioned  persons  operates  as  an  equitable  assignment  of  the 
morte-age  to  himself,  he  can  keep  the  lien  of  it  alive  as  security 
against  others  who  are  also  interested  in  the  premises,  and  who  are 
boimd  to  contribute  their  proportionate  shares  of  the  sum  ad- 
vanced by  him.  ov  are  bound,  it  may  be,  to  wholly  exonerate  him 

•■  ^?ro^^^^  v.  Cnle,  14  Sim.  427.  Kirch.  698  (debt  must  be  due  and  paj'able). 
If  a  mortgagee  ]iays  ofT  prior  encumbrances  he  is  subrogatetd  to  the  rights 
of  fhe  holders  thereof,  and  -when  the  mortgagor  redeems,  lie  must  pay  tliem 
also:  Harper  v.  El.y,  70  111.  5P1,  Kirch.  563.  The  right  of  redeeming  can 
only  be  cut  off  by  a  valid,  complete,  strict  foreclosure,  or  by  a  valid,  complete 
foreclosure  by  sale.  Persons  otherwise  entitled,  who  were  not  made  parties 
to  the  suit,  may  therefore  redeem  after  and  notwithstanding  a  foreclosure 
and  sale:     Noyes  v.  Hall.  07  U.  S.  34,  24  L.  ed.  000. 

1  Bernard  v.  Toplitz,  160  Mass.   ]62.  3.')  X.  E.  673.  30  Am.   St.  Rep.  465. 

=  :\lc(iough  V.  Sweetser,  07  Ala.  361.  12  South.  162,  10  L.  R.  A.  470;  Cxibson 
V.   Orehore.   5    Pick.    146,  Kirch.   60S. 

"Among  the  various  classes  of  persons  wlio  may  redeem  are:  Grantees 
of  the  mortgagor:  Howard  v.  Harris.  1  Vern.  100,  Sliep.  57.  Kirch.  430: 
dowress:  Davis  v.  ^^■etliereI].  13  Allen  60.  00  Am.  Dec.  177  (inchoate  right  of 
dower)  :  judgment  creditor:  Mildred  v.  Austin,  L.  R.  8  Eq.  220;  subsequent 
mortgagee:  Frost  v.  Yonkers  Sav.  Bank,  70  N.  Y.  553. 
4G 


§  1;;^22  EQUITY    JURISPRUDENCE.  723 

from  and  reimburse  him  for  the  entire  payment.  The  doctrine  has 
already  been  stated,  that  where  a  party  interested  in  the  premises, 
who  is  not  personally  and  primarily  liable  as  the  principal  debtor 
for  the  whole  mortgage  debt,  pays  the  mortgage  to  the  holder 
thereof,  he  is  entitled  to  regard  the  transaction  as  an  equitable 
assignment  of  the  mortgage  to  himself,  and  to  keep  it  alive  as  se- 
curity of  his  own  rights  against  others  who  are  owners  of  or  in- 
terested in  the  land.^  Any  such  person  who  redeems,  no  matter 
liow  small  a  portion  of  the  premises  he  may  own,  or  how  partial 
may  be  his  interest,  must  redeem  tlfe  entire  mortgage  by  paying 
the  whole  mortgage  debt.  The  doctrine  of  contribution  among  all 
those  who  are  interested  in  having  the  mortgage  redeemed,  in  order 
to  refund  the  redemptor  the  ex&ess  of  his  payment  over  and  above 
his  own  proportionate  share,  and  the  doctrine  of  equitable  assign- 
ment in  order  to  secure  such  contribution,  are  the  efficient  means 
by  which  equity  completely  and  most  beautifully  w^orks  out  per- 
fect justice  and  equality  of  burden,  under  these  circumstances. 
The  right  of  contribution  arises  only  after  a  redemption,  and  neces- 
sarily depends  upon  the  equities  subsisting  between  all  those  per- 
sons who  have  an  interest  in  the  premises  subject  to  the  mortgage, 
and  who  therefore  have  a  common,  but  not  necessarily  an  equal, 
interest  in  being  relieved  from  the  burden  of  the  mortgage. 

§  1222.  1.  Where  their  Equities  are  Equal. — It  is  a  general 
doctrine  of  equity  that  where  a  common  charge  rests  upon  a  fund 
which  belongs  to  several  owners,  who  stand  upon  a  footing  of 
equality  with  respect  to  their  individual  titles  and  relations  with 
the  holder  of  the  charge,  the  burden  should  rest  ratably  upon  each 
separate  portion  of  the  fund ;  and  if  the  owner  of  one  portion,  for 
the  purpose  of  protecting  his  own  interest,  pays  off  the  common 
charge,  he  is  entitled  to  call  upon  the  other  owners  to  contribute 
their  proportionate  shares  of  the  amount  thus  paid.  This  doctrine 
is  a  simple  application  of  the  maxim,  Equality  is  equity.^  When- 
ever, therefore,  a  mortgage  rests  upon  land  which  is  owned  by 
several  persons  in  such  a  manner  that  their  equities  as  between 
themselves  are  equal,  and  one  of  them  redeems  from  the  mort- 
gage, he  is  entitled  to  a  pro  rata  contribution  from  the  other 
owners,  and  may  keep  the  lien  of  the  mortgage  alive,  by  equitable 
assignment,  as  security  for  such  contributions.-     In  order,  however, 

'See   ante,    §§  1211,    1212. 

"See  ante,  §§  405,  40G,  407,  411. 

-  Among  the  instances  where  the  equities  are  equal,  and  which  fall  within 
this  rule,  are  the  following:  Two  or  more  persons,  co-owners  of  land,  jointly 
give  a  mortgage  thereon:  land  covered  by  a  mortgage,  on  the  death  of  the 
mortgagor,    descends    to    his    several    heirs,    or    is    devised    by    him    to    several 


733  mortgages:    coxtkibuliox  and  exo.nkkatiox.  §1323 

that  this  liability  to  a  ratable  contribution  may  exist  under  such 
a  condition  of  ownership,  it  is  essential  that  the  equities  of  all  the 
owners  should  be  ecjual." 

§  1223.  2.  Where  their  Equities  are  Unequal— Tenants  for  Life 
or  for  Years. — In  the  preceding-  case  the  titles  of  the  several  own- 
ers are  simultaneous  in  their  time  of  acquisition,  and  are  the  same 
in  kind,  the  only  difference  being  in  the  value  of  their  respective 
interests.  In  the  case  now  to  be  considered,  the  titles  are  also 
simultaneous,  and  the  inequality  consists  in  the  fact  that  the  estate 
held  in  the  mortgaged  premises  by  one  party  is  only  partial,  while 
that  held  by  the  other  is  absolute  or  in  fee.  The  particular  in- 
cnuality  referred  to  exists  when  the  land  subject  to  the  mortgage 
is  held  by  A  as  a  tenant  for  life  or  for  years,  and  by  B  as  a  re- 
mainderman or  reversioner  in  fee.  The  general  doctrine  of  contri- 
bution applies  to  such  owners,  but  is  modified  in  its  operation  by 
the  new  element  of  inequality  in  the  nature  of  their  respective 
estates.  As  has  already  been  shown,  the  holder  of  a  partial  in- 
terest is  ahvays  compelled  to  redeem  the  whole  mortgage.^  By  a 
settled  rule  of  the  law,  the  life  tenant,  A,  is  bound  to  pay  the  an- 
nual interest  on  the  mortgage  accruing  during  his  own  lifetime, 
— or  if  a  tenant  for  years,  during  his  term.  This  is  his  own  debt, 
and  for  what  he  thus  pays  in  keeping  down  the  interest  he  is  not 
entitled  to  any  contribution  from  B,  the  owner  in  fee.  When, 
therefore,  A  redeems  the  mortgage,  a  certain  part  of  the  money 
paid  to  the  mortgagee  would  be  the  equivalent  of  the  annual  in- 
terest on  the  mortgage  Avhich  A  was  obliged  to  pay  at  all  events, 
and  this  part,  being  his  own  debt,  need  not  be  refunded  to  him  by 
B:  but  all  of  the  mortgage  debt  over  and  above  such  part  ecpii- 
tably  belongs  to  B  to  pay;  it  is  the  share  which  should  fall  upon 
h'm  by  virtue  of  his  reversionary  interest.  The  problem,  then 
is  to  ascertain  what  portion  of  the  total  mortgage  debt  represents 
the  annual  interest  on  the  mortgage  which  A  is  bound  to  pay  dur- 
ing his  life;  subtracting  that  amount  from  the  total  sum,  the 
balance  is  the  share  which  B  must  contribute,  and  for  which  A 
may  hold  the  mortgage  as  a  lien  on  the  land.  An  element  of 
uncertainty — the  duration  of  A's  life — is  inherent  in  the  problem: 

devisees,  who  take  it  as  co-owners;  a  mortgagor  conveys  the  premises  by  one 
deed  to  several  grantees,  who  become  co-owners  of  undivided  shares;  a  mort- 
gagor, by  separate,  simflar,  and  simultaneous  deeds,  conveys  all  the  mortgaged 
premises,  in  separate  and  distinct  parcels,  to  several  separate  grantees,  neitlier 
of  whom  assumes  payment  of  the  whole  mortgage,  nor  any  part  thereof, 
so  as  to  disturb  the  equality  of  the  equities  between  them,  and  the  like; 
Peck  V.  Peck.  110  N.  Y.  64,  74,  17  N.  E.  383. 

"  See  Zalu-iskie  v.   Salter,  80   K.   Y.   .5.').5. 

^See  ante.  S  1220:     Oibson  v.  Crehore,  5  I'iek.  14fi.  Kirch.  608. 


§  1224  EQUITY    JUIUSPKUDEXCK.  724 

but  the  courts,  both  of  England  and  of  this  country,  have  adopted 
the  standard  "life  tables"  as  the  basis  of  calculation  in  all  such 
cases.  The  rule  is  settled,  that  the  present  worth  of  an  annuity 
e(.iual  to  the  annual  interest  running  during  the  number  of  years 
which  constitute  his  expected  life  represents  the  sum  which  A  is 
liable  to  pay  as  his  individual  indebtedness;  the  balance,  after  sub- 
tracting this  sum  from  the  mortgage  debt  actually  paid  to  the  mort- 
gagee, is  the  amount  which  B  is  liable  to  contribute.-  When  the 
life  tenant.  A,  is  a  dowress,  the  present  worth  is  calculated  upon 
the  basis  of  one  third  of  the  annual  interest  accruing  on  the 
mortgage  of  the  entire  premises.  If  the  remainderman  or  rever- 
sioner, B,  redeems,  the  rule  is  the  exact  converse  of  the  one  above 
stated. 

§  1224.  3.  Inequality  of  Equities  where  Titles  are  not  Simul- 
taneous— Between  Mortgag-or  and  his  Grantee  of  a  Parcel — Between 
Successive  Grantees — Inverse  Order  of  Alienation. — Where  the 
C'wners  of  the  premises  subject  to  the  mortgage  hold  under  the 
mortgagor  by  titles  not  simultaneous,  but  successive  in  order  of 
time,  an  entirely  different  ineciuality  of  equities  among  them  is  in- 
ti'oduced ;  a  priority  results  which  not  only  destroys  the  right  of 
ratable  contribiiiioii  when  one  of  them  redeems,  but  even  creates  in 
favor  of  some  a  right  of  exoneration  as  against  the  others.  The 
foundation  of  this  doctrine  is  found  in  the  equities  subsisting  be- 
tween the  mortgagor  and  his  grantee  of  a  part  of  the  mortgaged 
premises.  Whenever  the  mortgagor  conveys  a  portion  of  the  land 
"subject  to"  a  mortgage  by  a  warranty  deed,  and  retains  the 
residue  of  the  land  in  his  oMai  hands,  that  portion  of  the  land  re- 
tained by  the  mortgagor  becomes,  as  between  himself  and  his 
grantee  at  all  events,  the  fund  primarily  liable  for  the  whole  mort- 
gage debt.  The  form  of  the  deed  shows  that  the  grantee  not  onl}^ 
assumed  payment  of  no  portion  of  the  mortgage  debt,  but  did  not 
buy  his  parcel  even  suhject  to  the  mortgage ;  and  the  entire  bur- 
den was  therefore  left  upon  the  portion  of  land  remaining  in  the 
ownership  of  the  mortgagor.  Whatever  be  the  rights  of  the  mort- 
gagee to  resort  to  either  or  both  of  the  parcels,  it  is  plainly  the  equi- 
table duty  of  the  mortgagor  to  assume  the  whole  debt,  and  thus  to 
free  the  grantee's  parcel  from  the  lien.  If,  therefore,  the  mort- 
gagor pays  off'  the  mortgage,  its  lien  is  ended,  and  he  can  claim 
310  contribution  from  the  grantee;  if,  on  the  other  hand,  the  grantee 
redeems,  he  is  entitled  to  keep  the  lien  alive  for  the  ])urpose  of 
enforcing  an  exoneration  by  the  mortgagor,  at  least  to  the  extent 
of  the  value  of  the  premises  remaining  in  the  mortgagor's  hands 

=  Damm  v.  Daiiiiu,  10!)  .Midi.  019.  07  X.  W.   P84,  03  .Am.   St.  Eop.  GOl. 


725  Mora'GAGEs:    coxtkibltiox  and   i:xo.\ei:atiox.  §  V-*-4 

and  subject  to  the  eneunibrauee.  This  view  of  the  e(iuities  sub- 
sisting^ between  the  mortgagor  and  his  own  grantee  seems  to  be 
universally  adopted.^  The  doctrine  being  thus  established  that 
the  grantee  obtains  an  equitable  priority  as  against  the  mortgagor, 
and  the  portion  of  the  mortgaged  premises  left  in  the  mortgagor's 
iiands  is  primarily  chargeable  with  the  whole  mortgage,  the  infer- 
ence is  natural,  even  if  not  necessary,  that  the  same  burden  follows 
this  portion,  when  subsequently  conveyed  by  the  mortgagor  to  a 
second  grantee.  If  the  mortgagor  conveys  one  half  of  the  mort- 
gaged premises  by  a  warranty  deed  to  A,  his  own  half  is  equitably 
charged  with  the  entire  debt,  and  A  has  as  against  him  the  priority. 
When  the  mortgagor  afterwards  conveys  his  half  by  a  similar 
deed  to  B.  that  transaction  cannot  affect  A's  pre-existing  priority, 
with  respect  to  the  parceJ  thus  conveyed  as  the  primarij  fund  for  pny- 
ment,  and  B  cannot  acquire  any  higher  equities  than  those  pos- 
sessed by  his  immediate  grantor;  he  succeeds  to  the  exact  position 
of  the  mortgagor  towards  the  first  grantee,  A.  As  between  the 
two  grantees,  therefore,  the  parcel  conveyed  to  the  second  grantee, 
B.  is  primarily  liable  for  the  whole  mortgage  debt;  he  can  claim 
no  contribution  from  A,  but  on  the  other  hand,  A  may  be  entitled 
to  exoneration  against  the  portion  held  by  him.  If  this  reasoning  is 
correct,  it  necessarily  applies  to  any  number  of  successive  grantees 
to  whom  the  mortgagor  has  conveyed  separate  parcels  of  the  mort- 
gaged premises,  and  determines  these  equities  among  them,  whether 
the  mortgagor  has  conveyed  away  all  the  land  covered  by  the 
mortgage,  or  retains  a  portion  himself,  and  whether  their  respec- 
tive parcels  are  of  equal  or  unequal  values.  In  most  of  the  states, 
though  not  in  quite  all,  the  courts  have  adopted  this  reasoning,  and 
have  settled  the  equities  of  the  parties  in  such  a  condition  of  fact 
by  a  general  rule:  Whenever  the  mortgagor  has  conveyed  sepa- 
rate parcels  of  the  mortgaged  premises  by  warranty  deeds  to  suc- 
cessive grantees,  and  there  are  no  special  provisions  in  any  of  their 
deeds,  and  no  other  dealings  between  themselves  or  with  the  mort- 
gagor which  disturb  the  equities  otherwise  existing,  a  priority  re- 
sults, depending  upon  the  order  of  conveyance.  As  between  the 
mortgagor  and  all  the  grantees,  the  parcel  in  his  hands,  if  any.  is 
primarily  liable  for  the  whole  mortgage  debt,  and  should  be  ex- 
hausted before  having  recourse  to  any  of  theirs:  as  bet^veen  the 
grantees,  their  parcels  are  liable  in  tlie  inverse  order  of  their  alien- 
ation, and  any  parcel  chargeable  first  in  order  must  be  exhausted 

■•2  Waslilnun  on  Real  Property,  4th  ed.,  p.  202,  sec.  5;  2  Jones  on  Mortgasres, 
sees.  1091,  1092;  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  291,  305,  notes  to  Aldrich  v. 
Cooper.  The  ruie  applies  not  only  to  the  mortgagor,  but  also  to  his  heir; 
(.Mowes  V.   Dip     .ison.   5  Johns.   Ch.   235. 


§  l^'io  EQUITY     JLIUSl'lUDKXCK.  736 

before  recourse  is  had  to  the  second.-  This  inequality  of  equities 
plainly  destroys  all  right  and  liability  of  ratable  contribution.  If 
tlie  mortgagor  pays  ott:'  the  mortgage,  or  if  the  parcel  remaining  in 
his  hands  is  sold  in  full  satisfaction  of  it,  he  cannot  call  upon  his 
grantees  for  any  reimbursement.  In  like  manner,  if  the  parcel  be- 
longing to  a  grantee  who  was  a  later  purchaser  is  sold,  he  can  claim 
no  contribution  from  any  grantee  who  was  prior  in  time,  since  his 
parcel  is  itself  primarily  liable  as  between  the  two.  In  place  of 
contribution,  a  right  of  exoneration  may  arise.  It  has  already 
been  shown  how  the  grantee,  under  such  circumstances,  may  be 
exonerated  by  the  mortgagor;  in  like  manner,  a  right  of  exoneration 
may  arise  among  the  successive  grantees  in  favor  of  one  wliose 
conveyance  was  earlier  against  those  who  were  later  in  point  of 
time.  The  exoneration  will  be  complete  or  partial,  according  to 
the  circumstances  of  the  case." 

§  1225.  The  Same.  What  Circumstances  Disturb  These  Equities 
and  Defeat  This  Rule.  The  doctrine  stated  in  the  foregoing  para- 
graph  is   one   of  purely   e(iuitable   origin,   and   is   not    an   absolute 

-  In  many  of  these  states  the  rule  is  applied  directly  to  the  mortgagee, 
and  regulates  his  mode  of  foreolosuve;  eitlier  by  statute,  or  by  rule  of  court, 
or  by  decisions,  he  is  compelled  to  frame  his  decree  of  sale,  and  to  >e]l 
the  moi'tgaged  jJremises  in  compliance  with  tiiis  rule.  In  other  states,  tlie 
mortgagee  is  not  thus  directly  controlled,  but  the  rule  is  applied  to  tlie 
other  parties,  and  regulates  the  mode  in  which  their  equities  are  worked 
out,  as  among  themselves,  by  redemption  and  exoneration:  Clowes  v.  Dick- 
enson, 5  Johns,  Ch.  235;  Lyman  v.  Lyman,  32  Vt.  79,  70  Am.  Dec.  151;  Farmers' 
iSav.,  etc.,  Ass'n  v.  Kent,  117  Ala.  024,  23  South.  757;  Howser  v.  Cruikshank,  122 
Ala.  256,  25  South.  200,  82  Am.  St.  Rep.  76. 

"  It  should  be  constantly  remembered  that  the  mortgagee  possesses  the 
absolute  right  to  enforce  the  security  of  tlie  mortgage  for  the  whole  amount 
tliereof,  if  necessary,  against  all  the  parcels  in  the  hands  of  all  the  grantees. 
A  single  simple  case  will  illustrate  this  equity  of  exoneration.  A  mort- 
gagor conveys  one-half  the  i^remises  by  warranty  deed  to  A,  and  afterwards 
tiie  other  half  to  B.  As  between  the  two  grantees,  the  mortgage  must  be 
first  enforced  against  B's  parcel,  but  if  its  proceeds  are  not  sufficient  to 
satisfy  the  debt,  then  resort  must  be  had  to  A's  half.  In  other  words,  A"s 
])arcel  continues  liable  for  so  much  of  the  mortgage  debt  as  exceeds  the  \alue 
of  B's  parcel.  This  liability  indicates  the  true  measui'e  and  extent  of  A's 
rigid  of  exoneration  against  B.  If  A  redeems  the  mortgage,  or  if  A's  parcel 
is  sohl  first  by  the  mortgagee,  he  is  not  necessarily  entitled  to  a  comph^e 
exoneration  by  B;  he  is  only  entitled  to  a  complete  exoneration  when  B's 
parcel  equals  or  exceeds  in  v.alue  the  amount  of  the  mortgage  debt,  so  that 
it  would  have  satisfied  the  mortgage  and  freed  A's  land  from  the  burden. 
If  the  mortgage  debt  exceeds  the  value  of  B's  parcel,  A  is  entitled  to  exon- 
eration from  such  an  amount  thereof  as  equals  the  value  of  B's  land:  the 
balance  of  the  debt  over  and  above  that  amount  is  A's  individual  burden, 
chargeable  on  his  o\\ii  land.  The  same  reasoning  clearly  ap])lies  to  any 
number  of  successive  grantees  and  determines  the  rights  of  exoneration  among 
them.      See    cases    in    the    last    preceding    note. 


727  mortgages:    contribuiiox  and   kxonkkation'.  §  1225 

rule  of  law,  and  if  the  peculiar  e(iuitable  reasons  on  which  it 
rests  are  wanting,  it  ceases  to  operate.^  Whether  it  does  or  does 
not  apply  to  any  particular  case  may  be  certainly  determined  by  a 
careful  consideration  of  the  following  principles.  The  doctrine  in 
its  full  scope  and  operation  primarily  depends  upon  the  relation 
subsisting  between  the  mortgagor,  or  other  owner  of  the  entii'e 
mortgaged  premises,  and  his  grantee  of  a  parcel  of  the  land. 
This  relation,  in  turn,  results  from  the  form  of  conveyance,  Avhich, 
being  a  warranty  deed,  or  equivalent  to  a  warranty,  shows  con- 
clusively an  intention  between  the  two  that  the  grantor  is  to  as- 
sume the  whole  burden  of  the  encumbrance  as  a  charge  upon  ///> 
own  parcel,  while  the  grantee  is  to  take  and  hold  his  portion  en- 
tirely free.  Secondly,  the  conveyance  may  be  of  a  different  char- 
acter; by  its  special  provisions  it  may  expressly  show,  or  by  its 
general  form  it  may  impliedly  indicate,  that  the  grantee  himself 
either  assumes  the  whole  mortgage  debt  and  charges  his  parcel 
with  the  entire  burden  of  the  mortgage,  or  else  takes  and  holds  his 
parcel  subject  to  and  chargeable  with  its  proportionate  share  of 
the  encumbrance.-  Thirdly,  although  the  deeds  are' warranties,  so 
that  the  doctrine  will  otherwise  apply,  any  particular  grantee  may 
by  his  subsequent  omissions,  or  by  his  subsequent  dealings  with 
other  grantees,  disturb  the  order  of  the  equities  in  his  own  favor, 
and  create  equities  in  behalf  of  other  owners,  and  even  render  his 
own  parcel  primarily  liable  as  between  all,  the  grantees.  Finally, 
whenever  the  equities  of  any  original  grantee  towards  the  other 
parties  have  been  fixed,  either  by  the  form  of  his  deed,  or  by  his 
own  omissions  or  dealings,  then  any  subsequent  purchaser  or  en- 
cumbrancer from  such  grantee  takes  the  parcel  subject  to  the 
same  equities  which  originally  attached  to  it;  the  same  equities 
folloAV  the  parcel  in  its  devolutions.  The  equities  among  successive 
grantees,  as  determined  by  the  general  doctrine  of  the  preceding  par- 
agraph, will  therefore  be  disturbed  in  the  following  instances:  1. 
Whenever  a  grantee  of  any  parcel  either  expressly  assumes  the 
payment  of  the  mortgage,  or  his  deed  is  of  such  a  form  that  he 
takes  the  parcel  conveyed  to  himself  suhjed  to  the  mortgage  as  a 
port  of  the  consideration,  then,  as  has  already  been  shown,  the  par- 
cel thus  purchased  becomes,  in  the  hands  of  himself  and  of  those 
holding  under  him,  primarily  chargeable  with  the  mortgage  debt 
as  against  the  mortgagor-grantor,  and  consequently  as  against  all 
subsequent  grantees  of  other  parcels  from  the  moi'tgagor.  By  such 
an  express  or  implied  assumption,  the  doctrine  of  liability  in  the 

*See  Kendall  v.  Woodruff.  87  N.  Y.  1.  7,  por  Folder,  C.  J. 

*  Stephens  v.  Clay  17  Colo.  481),  30  Pac.  43,  31   Am.  St.  Rep.  328. 


§  l,-^-36  EQUITY     JUKISPKUDKXCE.  T3<5 

inverse  order  of  alienation,  and  all  of  its  conse<iuences.  are  de- 
feated with  respect  to  the  mortg-agor  and  the  sul)se(iuent  grantees.^ 
2.  In  like  manner,  when  the  , deeds  to  the  successive  grantees  are 
not  warranty  or  equivalent  thereto,  but  simply  purport  to  convey 
the  mortgagor's  right,  title,  and  interest  in  the  parcels,  the  inten- 
tion is  clear  that  the  grantees  respectively  assume  their  portions 
of  the  burdens.  Their  several  parcels  are  liable  ratably,  and  not 
in  the  inverse  order.*  3.  Where  the  conveyances  were  such  that  the 
rule  of  inverse  order  would  otherwise  have  applied,  a  grantee  of 
a  parcel  prior  in  point  of  time  may,  by  neglecting  to  record  his 
deed,  lose  his  precedence  as  against  the  subsequent  grantees  of 
other  parcels,  and  those  holding  under  them,  whose  deeds  and 
mortgages  are  recorded  without  any  notice  of  his  title.  The  ab- 
scence  of  the  record  in  snch  a  case  may,  however,  be  supplied  by 
other  kind  of  notice,  actual  or  constructive.^  4.  Finally,  any 
grantee  otherwise  entitled  to  precedence  may,  by  his  agreements  or 
dealings  with  other  grantees,  render  his  own  parcel  primarily  liable 
foi-  the  mortgage  debt,  as  between  himself  and  such  other  grantees; 
and  the  liability  thus  attached  to  the  land  would  follow  it  in  the 
hands  of  subsequent  purchasers  and  encumbrancers.® 

§  1226.  4  A  Release  by  the  Mortgagee  of  One  or  More  Parcels. 
— Although  the  c(iuities  between  the  subse(|uent  owners  of  various 
parcels  of  the  mortgaged  premises,  v\^hether  equal  or  unequal,  do 
not  prevent  the  mortgagee  from  enforcing  the  mortgage  security, 
if  necessary,  against  all  these  parcels,  yet  after  the  mortgagee  has 
received  notice  of  the  subsequent  conveyances,  tlie  equities  aft'ect 
him  to  such  an  extent  that  he  cannot  deal  with  the  Avhole  premises, 
or  with  any  parcel  thereof,  or  with  the  owner  of  any  parcel, 
by  release  or  agreement,  so  as  to  disturb  the  equities  subsist- 
ing among  the  various  owners,  or  to  destroy  their  rights  of  prece- 
dence in  the  order  of  liability,  or  to  defeat  their  rights  of  ratable 
contribution,  or  of  complete  or  partial   exoneration.     No  such   ob- 

^See  ante,  §1205;  Hoy  v.  Bnunhall.  10  X.  .T.  Eq.  503.  97  Am.  Dec.  687; 
Tarbeil  v.  Durant,  61   Vt.   51(5,   17   Atl.   44. 

*  Quoted    in   Aderholt   v.   Henry,    87    Ala.   41.-).    fi    South.    625.    6   L.    R.    A.   451. 

"  If  the  mortgagor  conveys  one-half  to  A,  and  afterwards  the  other  half  to 
Ji,  and  A's  deed  is  not  recorded,  and  F>  has  no  other  notice  of  it,  B  has  a 
right  to  assume  that  he  himself  is  the  first  grantee,  and  that  one— half  of  the 
land  remains  in  the  mortgagor's  hands  primarily  liable  for  tUe  mortgage  debt. 
By  putting  his  own  deed  on  record,  B  thus  obtains  a  precedence  over  A,  which 
avails  on  behalf  of  piirchasers  and  mortgagees  of  the  same  parcel  holding 
under  him.  B  might,  however  be  charged  with  notice  of  A.'s  deed,  although 
unrecorded;  and  if  A  were  in  open,  exclusive  possession  of  his  parcel,  this  would 
generally  operate  as  notice:  (^ray  v.  Lumber  Co.,  128  Mich.  427,  87  N.  W. 
370,  54  L.  R.  A.  7:51. 

"Aderholt  v.  Henry.  87  Ala.  41(1.  0  South.  025.  6  L.  R.  A.  451. 


72S)  mortgages:    coxtkibutiox  and  exoxeratjox.  ;f  I'i'it; 

li<?ation,  however,  rests  upon  the  mortgagee,  nor  is  he  prevented 
from  dealing  with  the  mortgaged  premises  in  any  manner  consist- 
ent with  his  general  rights  as  a  mortgagee,  unless  he  has  received 
notice  of  the  conveyances  to  the  subsequent  owners  whose  interests 
could  be  affected  by  his  dealings;  but  notice  of  their  conveyances 
would  be  a  notice  of  all  the  equities  which  arise  therefrom.  Since 
his  mortgage  is  a  prior  lien,  and  creates  an  encumbrance  alike  upon 
all  parts  of  the  land  subject  to  it,  no  subsequent  change  in  the  own- 
ership of  the  mortgaged  premises,  of  which  he  is  ignorant,  can  in 
any  degree  control  or  limit  his  original  rights  and  power  conferred 
by  the  security.  It  is  settled,  therefore,  that  notice  must  be  given 
tc  the  mortgagee  of  any  subsequent  conveyance  of  a  parcel  of  the 
mortgaged  premises,  so  as  to  prevent  him  from  affecting  the  equi- 
ties of  the  grantee  therein  b}^  his  dealings  with  other  portions  of 
the  same  premises.^  It  is  also  settled,  in  this  connection,  that  a 
record  of  the  subsequent  conveyance  is  not  a  constructive  notice 
to  the  prior  mortgagee,  so  as  to  prevent  him  from  dealing  in  any 
manner  with  the  mortgaged  premises.-  The  eff'ect  of  a  partial  re- 
lease by  the  mortgagee  w^ho  is  charged  with  notice  differs  in  the 
two  cases  where  the  equities  of  the  various  owners  are  equal  and 
where  they  are  unequal.  In  the  first  case,  where  the  mortgaged 
premises  have  been  conveyed  to  or  are  held  by  various  owners,  in 
such  manner  that  their  equities  are  equal,  and  all  their  parcels  or 
shares  are  liable  to  a  ratable  contribution,  if  the  mortgagee,  hav- 
ing notice  of  such  condition,  releases  one  of  the  parcels  or  shares, 
he  thereby  discharges  a  part  of  the  mortgage  debt,  equal  to  the 
ratable  portion  thereof  chargeable  upon  the  lot  released,  while 
the  balance  of  the  debt  alone  remains  a  burden  upon  the  other 
parcels  or  shares  of  the  premises.  The  release  of  one  parcel  or 
share  would  release  all  the  other  parcels  from  the  same  propor- 
tionate amount  of  their  respective  original  liabilities  which  the 
value  of  the  part  released  bears  to  the  total  value  of  tlie  mort- 
gaged premises;  one  owner  being  released,  all  the  others  are  en- 
titled to  a  pro  rata  abatement.^  When  the  equities  of  the  various 
owners  are  unequal,  so  that  their  respective  parcels  are  liable  in 
the  inverse  order  of  alienation,  if  the  mortgagee,  having  notice  of 
this  situation,  releases  a  parcel  which  is  primarily  liable,  he  there- 
by discharges  or  releases  all  those  parcels  Avhich  are  subsequently 

'Onion   v.    Knapp.    0    J\Ti,s'f   35.    20   Am.    Dec.    741. 

-  Tliis  is  a  special  instancp  of  the  general  rule  that  a  record  is  notice  only 
to  subsequent  purchasers  and  encumbrancers,  and  does  not  operate  as  a  notice 
to  prior  parties.  See  ante,  §  fio7 ;  Lynchlnn-c  P.  B.  &  L.  Co.  v.  Fellers.  0(i  Va. 
337.  31    S.  K.  r>On.  70  Am.   St.   Rep.  8.51. 

^Brooks  V.  Benhnm.  70  Conn.  92.  :«  Atl.  OOS.  -.V.)  Atl.  1112.  W,  Am.  St.  Rep.  87 


§  10-^7  EQUITY    JURISI'RUDEXCK.  730 

liable,  in  the  order  of  their  several  Uahilities,  from  an  amount  of  the 
mortgage  debt  equal  to  the  value  of  the  parcel  released.*  If  the  value 
of  the  parcel  released  equals  the  mortgage  debt,  then  all  the  sub- 
sc(|uent  parcels  are  wholly  relieved  from  liability;  if  the  value  is 
less  than  the  mortgage  debt,  the  subsequent  parcels  can,  at  most, 
be  liable,  in  their  order,  only  for  the  excess  of  the  debt  over  such 
\;ilue.  In  any  case,  this  effect  of  a  release  may  be  obviated  by 
till-  consent  of  the  other  owners,  and  perhaps  by  special  equities 
arising  from  the  provisions  of  the  mortgage,  to  which  all  of  their 
parcels  are  subject. 

§  1227,  V.  Foreclosure. — The  only  equitable  remedies  of  the 
jnortgagee  for  enforcing  the  lien  of  the  mortgage  when  it  has  be- 
ccme  due  are  the  two  actions  to  both  of  which  the  name  "fore- 
closure" is  ordinarily  given.  These  two  actions  are  the  "strict 
foreclosure"  and  "foreclosure  by  judicial  sale."  The  strict  fore- 
closure is  a  remedy  based  upon  the  original  conception  that  the 
mortgage  vests  the  mortgagee  with  the  legal  estate  in  the  mortgaged 
premises,  and  its  object  is  to  carry  out  that  conception  by  render- 
ing the  mortgagee's  legal -estate  and  title  absolute,  and  cutting 
oft'  the  equity  of  redemption  held  by  the  mortgagor  and  others 
claiming  or  holding  under  him.  It  is  the  common  form  of  remedy 
in  England.  In  this  country  it  is  confined  as  an  ordinary  remedy 
to.  states  which  have  adopted  the  first  or  legal  theory  of  mortgages 
as  heretofore  described;  and  even  in  many  of  the  states  belouffing 
to  this  class  the  foreclosure  by  judicial  sale  seems  to  be  the  form 

M4oy  V.  J5raiiiliall.  10  X.  .7.  Eq.  56.3.  97  Am.  Dpp.  687:  Turner  x.  Fleiiiiikon. 
164  Pa.  St.  460,  30  All.  4S6.  44  Am.  St.  Rep.  624.  This  rule  may  be  illustrated 
hv  an  example:  A  mortgasjor  has  conveyed  all  the  premises  in  five  lots, 
successively,  to  A,  B.  G.  D,  and  E;  these  lots  are  liable  to  be  sold  in  the 
order.  E.  D,  C.  B.  A.  If  the  mortgagee  should  release  A's  lot,  his  right  to 
nitorce  the  mortgage  in  their  order  against  the  others  would  not  be  affected. 
If  he  should  release  E.  and  the  value  of  his  lot  equaled  the  mortgage  debt,  the 
\\  liole  mortgage  would  be  discharged.  If  the  value  of  E's  lot  was  less  than 
the  mortgage  debt,  the  mortgagee  could  tlien  resort  to  D's  lot  for  the  excess 
only,  and  if  its  proceeds  equaled  that  excess,  all  the  remaining  lots  would  be 
free:  if  there  was  a  balance  still  due  after  the  sale  of  D's  lot.  C's  could  be 
sold  for  that  halance,  and  so  on.  Jf  the  mortgagee  should  first  release  C's 
lot.  tlie  situation  would  be  more  complicated.  The  mortgagee  could  still  enforce 
the  whole  mortgage  against  E's  lot  first,  and  then  for  any  excess  against  D's. 
If  a  balance  was  still  clue  after  the  sale  of  these  two  lots.  E's  would  not  be 
liable  for  all  of  that  balance.  The  vrihie  of  C's  lot  which  was  released  must 
be  added  to  the  proceeds  of  E's  and  D's.  and  this  sum  subtracted  from  the  gross 
mortgage  debt,  and  if  any  excess  remained.  B's  lot.  and  finally  A's.  would  be 
liable  only  for  that  excess:  if  there  was  no  excess.  B's  and  A's  lots  would  be 
free.  It  should  be  observed  that  a  release  does  not  always  thus  operate  as  a 
discharge;  it  is  not  a  technical  discharge:  it  is  a  discharge  only  where,  on 
principles  of  equity  and   justice,   it  ought   to   produce  that   effect. 


"i'ol  FOKiXLosrui-:  of  moutgagks.  §  I'^'^S 

of  remedy  most  frequently  used.  The  strict  foreclosure  is  incon- 
sistent with  the  theory  which  regards  the  mortgage  as  creating  only 
an  equitable  lien,  and  as  conveying  no  legal  estate.^  In  some  of 
the  states  which  have  adopted  this  system,  it  is  expressly  prohibited 
by  statute;  in  others,  it  has  become  practically  obsolete,  or  is  re- 
sorted to  only  under  special  circumstances,  where  the  foreclosure 
l)y  sale  would  be  insufficient  or  impracticable.-  The  strict  fore- 
closure assumes  that  the  mortgagee  is  already  in  possession  by 
virtue  of  his  legal  title.  The  decree  ascertains  and  fixes  the  amount 
of  the  debt  due  and  payable,  after  an  accounting,  if  nccessarv: 
prescribes  a  period — say  six  months — within  which  redemption  must 
l)e  made  by  payment  of  this  sum;  and  declares  that  upon  default 
•of  payment  within  the  specified  period,  the  legal  estate  and  title 
of  the  plaintiff  shall  be  absolute,  and  the  equity  of  redemption 
of  the  mortgagor  and  of  all  other  persons  claiming  under  him.  sul)- 
s(H|uent  to  the  mortgage.  Avho  were  made  defendants  in  the  suit, 
shall  be  forever  barred,  cut  oft',  and  foreclosed.  By  operation  of 
this  decree,  the  mortgagee's  legal  title  to  the  land,  acquired  by  the 
mortgage  as  a  conveyance,  is  finally  confirmed  and  established,  free 
from  all  equities  of  redemption. 

§  1228.  Foreclosure  by  Judicial  Sale.— This  form  of  remedy, 
which  is  by  far  the  most  common  in  our  own  country,  is  based  upon 
the  notion  that  the  mortgage  simply  creates  an  equitable  lien  upon 
the  premises,  as  a  security  for  the  mortgage  debt,  and  its  object 
is  to  enforce  that  lien  by  a  sale  of  the  premises,  in  order  that  the 
proceeds  may  be  applied  in  satisfaction  of  the  debt.  The  decree 
ascertains  the  amount  due,  and  orders  that  the  mortgaged  premises 
he  sold  at  public  auction  by  judicial  sale,  and  the  proceeds  be  ap- 
plied in  payment  of  the  amount  thus  ascertained,  after  satisfying 
the  expenses  of  the  sale  itself.  In  many  of  the  states,  preparatory 
tn  the  decree,  the  court  orders  an  inquiry  to  be  made  into  the  pres- 
ent situation  and  ownership  of  the  premises,  so  that  the  equities 
of  the  owners  may  be  provided  for,  and  as  far  as  possible  secured 
by  the  terms  of  the  decree.     If  the  land  has  been  conveyed  in  siic- 

^Tofferson  v.  Coleman,  110   Ind.  .^^l.^.  11    N.  E.  405. 

"For  example,  where  a  mortgajre  is  in  ihe  form  of  an  absolute  deed  of 
<'onveyance,  and  the  Sfrantee-mortjraoee  is  in  possession,  a  strict  foreclosure 
may  be  appropriate  for  the  purpose  of  makintr  his  title  absolute;  althouirli 
even  in  this  case  the  foreclosure  by  sale  is  frequently  adopted.  The  strict  fore- 
closure is  also  proper  in  case  of  a  land  contract,  in  order  to  cut  off  the  vendee's 
equitable  rijrht.  See  post,  §§  1260-12^2.  Also,  where  the  land  had  been  actually 
sold  under  a  decree  rendered  in  a  sviit  for  foreclosiire  by  sale,  and  some  sub- 
sequent encumbrancer  or  other  person  interested  in  the  i)remises  was  not  made 
a  party  defendant  to  tliat  suit,  so  that  his  ri<rhts  of  redemption  are  not  cut 
off  by  the  sale,  the  purchaser  may  maintain  an  action  in  the  nature  of  a 
strict  foreclosure  atrainst  such  j)erson,  for  tlie  purpose  of  cutting  off  his 
rights,  imless  lie  comes  in  and  redeems  within   n   ]irescril)cd  time. 


§  l"^-^8  EQUITY    JURISPRUDENCE.  73^ 

cessive  parcels  to  different  owners,  the  decree  may  order  that  the 
premises  be  sold  in  such  parcels  in  the  inverse  order  of  their  alien- 
ation; even  when  there  are  no  such  equities  among  the  different 
owners  of  the  premises,  the  court  may  order  the  premises  sold  in  par- 
eels,  and  not  in  one  gross  amount,  if  that  method  will  best  protect 
the  interests  of  the  owner  as  well  as  the  security  of  the  plaintiff. 
When  the  sale  is  consummated,  a  deed  is  given  by  the  sheriff',  mas- 
ter, or  other  officer  who  conducts  the  sale  to  the  purchaser,  who  may 
be  the  mortgagee  himself,  or  other  holder  of  the  mortgage ;  and 
such  purchaser  is  therefore  entitled  to  possession,  and  Avill  be  put 
into  possession,  if  necessary,  by  process  of  the  court.  The  effect 
of  this  deed,  when  given  in  pursuance  of  a  valid  decree  and  sale, 
is  to  convey  to  the  purchaser  whatever  title  the  mortgagor  had  at 
the  time  of  executing  the  mortgage,  and  whatever  title  he  may  sub- 
sequently have  acquired  down  to  the  time  of  the  foreclosure.  But 
the  sale  does  not  aft'eet  the  right  of  any  one  holding  bj^  or  claim- 
ing under  a  title  paramount  to  that  of  the  mortgagor.  In  the 
states  where  no  statutory  right  of  redemption  after  a  sale  is  given, 
the  sale  under  a  valid  decree  immediately  cuts  off',  bars,  and  fore- 
closes the  rights  of  the  mortgagor,  and  of  all  subsequent  grantees, 
owners,  encumbrancers,  and  other  persons  interested,  who  were 
made  parties  defendant,  and  of  all  grantees,  owners,  and  encum- 
brancers subsequent  to  the  filing  of  a  notice  of  lis  pendens,  although 
not  made  defendants.^  Where  the  proceeds  of  the  premises  sold, 
after  paying  the  expenses,  are  not  sufficient  to  fully  satisfy  the 
amount  of  the  debt  as  fixed  by  the  decree,  the  deficiency,  of  course, 
remains  a  personal  debt  owing  and  payable  by  the  mortgagor  and 
by  his  grantee  who  has  assumed  payment  of  the  mortgage  debt, 
and  has  thus  made  himself  personally  liable  therefor.  AVhen  such 
dt-ficiency  is  officially  certified  by  the  report  of  the  officer  conduct- 
ing the  sale,  upon  confirmation  of  the  report  the  plaintiff  is  allowed, 
generally  by  statutory  authority,  to  enter  and  docket  a  personal 
judgment  for  the  amount  of  the  deficiency,  without  further  suit, 
against  the  mortgagor  and  other  persons  who  are  personally  lialjle 
for  the  mortgage  debt,  and  who  were  made  defendants  in  the  suit. 
This  judgment,  like  every  other  legal  money  judgment,  is  enforce- 
able by  execution  against  the  general  property  of  the  judgment 
debtors.  On  the  other  hand,  after  defraying  the  expense  of  the 
sale  and  satisfying  the  decree,  there  may  be  a  surplus  of  the  pro- 
ceeds remaining,  as  shown  by  the  report  of  the  officer  conducting- 
the  sale.  If  the  mortgagor  remains  sole  owner  of  the  premises,  and 
there  were  no  other  persons  interested  therein,  nor  encumbrances 

'Quoted  in  Simmons  v.  Builinoton,  C.  R.  &  X.  Ry.  Co.,  1.59  U.  S.  278.  IC  Sup. 
Ct.   1,  40  J.,  ed.   L50. 


733  FORECLOSLRi:    OF    MORTGAGES.  §  1228 

thereon,  this  surplus  would  clearly  beloug  to  him.  If  there  were 
subsequent  encumbrances,  or  subsequent  grantees,  or  owners,  or 
persons  interested  in  the  premises,  they  would  or  migltt  be  entitled 
to  the  surplus  in  the  order  of  their  respective  liens  or  interests. 
Upoli  the  report,  therefore,  showing-  such  a  surplus  remaining,  the 
court  directs  a  reference  to  ascertain  the  situation  of  the  premises, 
the  persons  interested  therein  or  having  liens  thereon,  the  order 
of  their  claims  or  liens,  and  to  determine  who  are  entitled  to  the 
surplus,  and  the  several  shares  therein.  Upon  the  confirmation  of 
the  referee's  report,  the  court  will  make  an  order  directing  the  sur- 
plus to  be  paid  or  distributed  in  accordance  with  its  conclusions. 


I:i'o0  EtiUlTY   JUlUbPilUDL^IOE.  Voi 


CHAPTER  SIXTH. 

MORTGAGES  OF  PERSONAL  PROPERTY  AND  PLEDGES. 

A^'ALYS1S. 

§   1229.  General  nature  of,  at  law. 

§   1230.  Jurisdiction   and    remedies   in   equity. 

§   1231.  Pledges:    Equitable  jurisdiction  and  remedies. 

§   1232.  Chattel    mortgages   in   California. 

§  1229.  General  Nature  of,  at  Law. — In  most  of  the  states,  as 
well  as  in  England,  a  personal  or  chattel  mortgage  is,  at  law,  a  con- 
ditional sale  of  the  things  mortgaged,  passing  the  legal  title  to 
the  mortgagee,  wiiich  becomes  absolute  on  the  mortgagor's  failure 
to  perform  the  condition.  As  between  the  parties,  a  delivery  of  the 
possession  to  the  mortgagee  is  not  essential,  although  the  absence 
of  such  delivery  may  raise  a  presumption  that  the  transaction  was 
a  fraud  upon  the  rights  of  the  mortgagor's  creditors,  and  may  thus 
endanger  the  validity  of  the  mortgagee's  title  as  against  their 
claims.  A  pledge,  on  the  other  hand,  is  a  delivery  of  the  thing 
into  the  actual  or  constructive  possession  of  the  creditor,  to  be  re- 
tained by  him  until  the  debt  is  paid.  The  pledgee  acquires  only  a 
special  property,  which  is  not  enlarged  by  the  mere  fact  that  the 
pledgor  fails  to  pay  the  debt  at  the  time  specified;  whereas  by 
such  a  failure  the  legal  estate  of  the  mortgagee  becomes  ipso  facto 
complete  and  absolute.^  T^pon  a  breach  of  the  condition  contained 
in  the  mortgage,  the  legal  title  vests  so  completely  in  the  mortgagee 
that  all  the  rights  incident  to  ownership  and  possession  in  law  at 
once  arise.-  By  taking  possession  of  the  property  and  selling  it  at 
public  sale  upon  due  notice,  he  will  then  extinguish  every  right 
and  interest  at  law  of  tlie  mortgagor. 

§  1230.  Jurisdiction  and  Remedies  in  Equity. — While  the  legal 
title  of  the  mortgagee  is  thus  made  absolute  by  a  failure  to  per- 
form the  condition,  the  doctrine  is  well  settled  that  the  mortgagor 
retains  an  equity  of  redemption  notwithstanding  his  default,  which 
he  may  enforce  by  an  equitable  suit  to  redeem,  even  though  the 
mortgagee  has  taken  possession  of  the  chattels,  at  any  reasonable 
time  before  his  right  has  been   cut  off  by  a  valid   public  sale   of 

^As  to  the  nature  of  a  chattel  mortgage,  see  Waterman  v.  Mackenzie,  1.38 
U.  S.  252,  34  L.  ed.  923,  11  Sup.  Ct.  334.  As  to  its  diflerence  from  a  pledge: 
Wilson  V.  Little,  2  N.  Y.  443,  51  Am.  Dec.  307. 

H'ase  V.   Houghton,  11  Wend.  10(;,  lOJ. 


V.S5  CHATTEL   MOUTGAGKS   AXD   PLEDGES.  §  12'o'2 

the  property;  and  even  after  sueh  sale,  if  there  has  been  any  ele- 
ment of  inequitable  conduct,  or  bad  faith  or  fraud  on  the  mort- 
gagee's part,  the  mortgagor  may  maintain  an  equitable  action  for 
an  aecouuting  against  the  mortgagee,  and  hold  him  responsible 
for  the  real  value  of  the  property,  or  what  might  have  been  obtained 
for  it  by  a  fair  and  reasonable  sale.  On  the  other  hand,  although  a 
foreclosure  in  equity  is  not  necessary,  yet  equity  has  undoubted 
jurisdiction  to  entertain  a  suit  on  behalf  of  the  mortgagee,  and  to 
decree  a  foreclosure  by  a  judicial  sale  of  the  mortgaged  chattels, 
as  in  the  ease  of  a  mortgage  of  land.^ 

§  1231.  Pledges. — A  like  equitable  jurisdiction  exists  in  cases 
of  pledges.  As  a  general  rule,  the  pledgor  ma^^  undoubtedly  ob- 
tain complete  relief  at  law  by  a  tender  and  by  an  action  to  recover 
the  chattel  or  its  value ;  but  under  special  circumstances,  as  where 
an  aceounting  or  a  discovery  is  needed,  or  wdiere  the  pledge  has 
been  assigned,  the  pledgor  luay  certainl}^  maintain  an  equitable 
suit  for  a  redemption.^  The  modern  decisions  have  generally  set- 
tled the  rule  that,  in  ordinary  pledges  of  chattels,  the  pledgee  may 
enforce  his  securitj^  and  cut  off  the  pledgor's  right  of  redemption 
without  any  action,  by  means  of  a  public  sale  of  the  pledged  article, 
after  a  demand  of  payment  made  upon  and  notice  of  the  sale  given 
to  the  pledgor.  The  equitable  jurisdiction,  however,  still  exists, 
and  the  pledgee  may  enforce  his  security  by  a  suit  in  equity  for  a 
foreclosure  and  judicial  sale ;  and  this  mode  by  suit  in  equity  nuist 
be  resorted  to  when  the  pledged  articles  are  negotiable  instruments, 
or  other  things  in  action  having  no  market  price  or  value,  and 
also,  whenever,  in  case  of  any  kind  of  article  pledged,  it  is  im- 
possible to  make  demand  of  or  give  notice  to  the  pledgor  as  neces- 
sary preliminaries  to  a  foreclosure  by  sale.- 

§  1232.  Chattel  Mortgag-e  in  California. — By  the  Civil  Code  of 
California,  and  of  the  other  states  and  territories  which  have  adopt- 
ou  the  same  type  of  legislation,  the  common-law  view  of  the  chat- 
tel mortgage  as  a  conditional  sale  has  been  wdioUy  abandoned;  the 
mortgage  itself  has  been  assimilated  to  the  mortgage  of  lands  as 
creating  only  a  lien,  the  legal  ownership  and  all  its  incidents,  in- 
cluding the  right  of  possession,  being  left  in  the  mortgagor  until 
the  lien  is  enforced  and  his  interest  is  extinguished  either  by  an 
equitable  suit  for  foreclosure  or  by  a  public  sale.  The  personal 
mortgage,  however,  is  only  permitted  to  be  given  upon  certain 
kinds  and  classes  of  chattels  specified  in  the  statute. 

'  Cliarter  v.  Stevens,  .3  Denio  33,  45  Am.  Dec.  444. 
'Nelson  v.  Owen,  113  Ala.  372,  21'  South.  75. 

Ulefrhorn  V.  Minnesota  T.   1.  &  T.  Co.,  57   Minn.   341,  47  Am.   St.   Rep.   G15, 
50   .\.    W.   .320. 


11233  EQUITY   JUKlSruUDENCE.  ti^dS 


CHAPTER   SEVENTH. 

EQUITABLE  LIENS. 


SECTION  L 

THEIR  GENERAL  NATURE. 

ANALYSIS. 

§   123.3.  What  are  included  in  this  term;   what  is  an  equitable  lien. 
§    1234.  Origin  and  rationale  of  the  doctrine. 

§  1233.  What  are  Included  in  This  Term — What  is  an  Equitable 
Lien. — Analogous  to  mortgages  considered  from  the  purely  equi- 
table point  of  view  are  the  important  class  of  interests  embraced 
under  the  denomination  of  "equitable  liens";  and  I  include  with- 
in this  general  term  those  interests  which  are  not  regarded  by  the 
American  jurisprudence  as  true  mortgages,  but  which  are  com- 
monly called  by  English  writers  and  judges  "equitable  mortgages."^ 
An  equitable  lien  is  not  an  estate  or  property  in  the  thing  itself, 
nor  a  right  to  recover  the  thing. — that  is.  a  right  which  may  be 
the  basis  of  a  possessory  action;  it  if;  neither  a  jus  ad  rem  nor  a 
jus  in  re.-  It  is  simply  a  right  of  r.  special  nature  over  the  thing, 
which  constitutes  a  charge  or  encumbrance  upon  the  thing,  so  that 
the  very  thing  itself  may  be  proceeded  against  in  an  equitable 
action,  and  either  sold  or  sequestered  under  a  judicial  decree, 
and  its  proceeds  in  the  one  case,  or  its  rents  and  profits  in  the 
other,  applied  upon  the  demand  of  the  creditor  in  whose  favor  the 

"  Ttie  most  important  species  of  "equitable  mortgages,"  according  to  the 
English  theory,  are,  in  all  the  states  of  this  countiy,  legal  mortgages.  In 
England  certain  mortgages  are  called  "equitable,"  because  no  legal  estate  is 
transferred  by  tiiem  to  the  moi'tgagee;  for  example,  every  mortgage  of  the 
equity  of  redemption — that  is,  every  second  or  other  subsequent  mortgage  is 
'"equitable."  since  the  legal  estate  has  already  been  conveyed  by  the  first  mort- 
gage. In  this  country  no  such  distinction  is  recognized.  In  the  states  adopt- 
ing the  legal  system — the  first  class  heretofore  described — every  successive 
mortgage  conveys  a  legal  estate  to  the  mortgagee;  while  in  the  states  of  the 
second  class  every  mortgage  simply  creates  a  lien.  In  England  the  deposit  of 
title  deeds  as  security  is  called  an  "equitable  mortgage."  It  is  better  to 
include  all  cases  of  such  liens  which  are  not  proper  mortgages  within  the  gen- 
eral  class  of  "equitable  liens";   this  division   is  both  simple  and   natural. 

-See  Peck  v.  .Fenness,  T  How.  612,  020.  12  L.  ed.  841.  per  (^rier,  -T. 


I 


'^37  EQUITABLE  LIENS:     GENERAL  NATURE.  §1334 

lieu  exists.  It  is  the  very  essence  of  this  condition  that  while  the 
lien  continues  the  possession  of  the  thing  remains  with  the  debtor 
or  the  person  who  holds  the  proprietary  interest  subject  to  the  en- 
cumbrance.^ The  equitable  lien  differs  essentially  from  the  com- 
mon-law lien,  which  is  simply  a  right  to  retain  possession  of  the 
chattel  until  some  debt  or  demand  due  to  the  person  thus  retain- 
ing is  satisfied;  and  possession  is  such  an  inseparable  element,  that 
if  it  be  voluntarily  surrendered  by  the  creditor,  the  lien  is  at  once 
extinguished.^ 

§  1234.  Origin  and  Rationale  of  the  Doctrine. — The  doctrine  of 
equitable  liens  is  one  of  great  importance  and  of  wide  application 
in  administering  the  rights  and  remedies  peculiar  to  equity  jurispru- 
dence. There  is  perhaps  no  doctrine  which  more  strikingly  shows 
the  difference  between  the  legal  and  the  equitable  conceptions  of 
the  juridical  results  which  How  from  the  dealings  of  men  with 
each  other,  from  their  express  or  implied  undertakings.  A  brief 
explanation  of  the  foundation  and  reasons  upon  which  this  branch 
of  the  equity  jurisprudence  rests  is  essential  to  a  full  understand- 
ing of  the  subject.  It  is  sometimes,  although  I  think  unnecessarily 
and  even  incorrectly,  spoken  of  as  a  species  of  implied  trusts.' 
If  any  reference  to  the  theory  of  trust  is  made,  it  is  more  accu- 
rate to  describe  these  liens  as  analogous  to  trusts;  for  while  the  two 
have  some  similar  features,  they  are  unlike  in  their  essential  ele- 
ments. The  common-law  remedies  upon  all  contracts  except  those 
which  transfer  a  legal  estate  or  property,  such  as  conveyances  of 
land  and  sales  or  bailments  of  chattels  ("real"  contracts,  con- 
tractus reales),  are  always  mere  recoveries  of  money;  the  judgments 
are    wholly   pecuniary    and    personal,    enforced    in    ancient     times 

'Brace  v.  Duchess  of  Marlborough.  2  P.  \^'ms.  491,   1   Scott  3.50. 

*ln  some  instances  of  the  coiuniou-hiw  lien  the  creditor  acquires  no  right  but 
that  of  simple  detention — e.  g.,  the  lien  of  an  attorney  on  the  papers  of  his 
client.  In  most,  however,  he  may  have  a  remedy  against  the  thing  itself,  and  in 
some  cases  equity  will  aid  the  creditor  by  its  more  efficient  remedy  of  foreclosure 
by  judicial  sale:  Knapp.  Stout  &  Co.  v.  McCaffrey.  178  111.  107,  52  X.  E. 
89S,  m  Am.  St.  Rep.  290      (bailee's  lien). 

^  Incorrectly,   in    my   opinion,    because   the   very    essence   of   eveiy    real    trust, 

express,  resulting,  or  constructive,   is  the  existence  of  two  estates  in  the  same 

thing — a    legal   estate   vested   in   the   trustee,   and   an   equitable   estate   held   by 

the  beneficiary.     In  an  equitable  lien  there  is  a  legal  estate  with  possession  in 

one  person,   and   a  special    right   over  the  thing  held   by  another;   but   here  the 

resemblance,   which    at   most   is   external,   ends.      This    special    right   is    not    an 

estate   of    any    kind;    it    does    not    entitle    the    holder    to    a    conveyance    of    the 

thing  nor  to  its  use;    it  is  merely  a  right  to  secure  the  performance  of  some 

outstanding   obligation,   by   means   of   a   proceeding   directed   against    the   thing 

Miiich  is  subject  to  the  lien.     To  call  this  a  trust,  and  the  owner  of  the  thing 

a  trustee  for  the   lien-holder,  is  a  misapplication   of  terms  which  have  a   veiy 

distinct  and  certain  meaning. 
^7 


§  1234  EQUITY  jiinsrHUDEXCi:.  738 

against  the  person  of  the  judgment  debtor  by  imprisonment,  and  in 
modern  times  against  his  property  by  means  of  an  execution.'  This 
species  of  remedy  is  seldom  granted  by  equity,  and  is  opposed  to 
its  general  theory.     The  remedies  of  equity  are,  as  a  class,  spe- 
cific.    Although  it  is  commonly  said  of  them  that  they  are  not  in 
rem,   because   they  do   not   operate   by  the  inherent  force   of   the 
decree  in  an  equitable  suit  to  change  or  to  transfer  the  title  or  es- 
tate in  controversy,  yet  these  remedies  are,  as  a  general  rule,  di- 
rected against  some  specific  thing;  they  give  or  enforce  a  right  to 
or  over  .some  particular  thing, — a  tract  of  land,  personal  property, 
or  a  fund, — rather  tlian  a  right  to  recover  a  sum  of  monej-  generally 
out  of  the  defendant's  assets.     Remedies  in  equity,  as  well  as  at 
laAv,  require  some  primary  right  or  interest  of  the  plaintiff  Avhich 
shall  be  maintained,  enforced,  or  redressed  thereby.     When  equity 
has  jurisdiction  to  enforce  rights  and  obligations   growing  out   of 
an  executory  contract,  this  equitable  theory  of  remedies  cannot  be 
carried  out,  unless  the  notion  is  admitted  that  the  contract  creates 
some  right  or  interest  in  or  over  specific  property,  Avhich  the  decree 
of  the  court  can  lay  hold  of,  and  by  means  of  which  the  equitable 
relief  can  be   made  efficient.     The  doctrine   of  "equitable  liens" 
supplies  this  necessary  element;  and  it  Avas  introduced  for  the  sole 
purpose   of  furni.shing  a   ground  for  the   specific   remedies   Avhich 
equity  confers,  operating  upon  particular  identified   property,   in- 
stead  of   the   general   pecuniary  recoveries   granted   by   courts    of 
law.     It  follows,  therefore,  that  in  a  large  class  of  executory  con- 
tracts, express  and  implied,  which  the  law  regards  as  creating  no 
property  right,  nor  interest  analogous  to  property,  but  only  a  mere 
personal  right  and  obligation,  equity  recognizes,  ('/?  addition  to  tJic 
j'rrsonal  obligation,  a  peculiar  right  over  the  thing  concerning  which 
the  contract  deals,  which  it  calls  a  "lien,"  and  which,  though  not 
propert^^   is  analogous  to  property,   and  by  means   of  which  the 
plaintiff  is  enabled  to  follow  the  identical  thing,  and  to  enforce  the 
defendant's  obligation  by  a  remedy  AA'hich  operates  directly  upon 
that  thing.     The  theory  of  equitable  liens  has  its  ultimate  founda- 
tion, therefore,  in  contracts,  express  or  implied,  which  either  deal 
with  or  in  some  manner  relate  to  specific  property,  such  as  a  tract 
of  land,  particular  chattels  or  securities,  a  certain  fund,  and  the 
like.     It  is  necessary  to  divest  one's  self  of  the  purely  legal  notion 
concerning  the  effect  of  such  contracts,  and  to  recognize  the  fact 
that  equity  regards  them   as  creating  a   charge  upon   or  hypothe- 
cation of  the  specific  thing,  by  means  of  which  the  personal  obliga- 
tion arising  from  the  agreement  may  be  more  eft'ectively  enforced 
than  by   a  mere  pecuniary  recovery  at  law. 


73'J  LIEXS  ARISING   FKO.M   EXi'HESS   CONTRACT.  §  ]'23(J 

SECTION  II. 

ARlSlXCi    TKOM    EXL'REIS«    CONTRACT. 

ANALYSIS. 

§   1235.  The  general   doctrine;    requisites  of  the  contract. 

§   123(5.  On  property  to  be  acquired  in  future. 

§  1237.  The  form  and  nature  of  the  agreement;  illustrations  of  particu- 
lar agreements;  agreements  to  give  a  mortgage;  defective 
mortgages;    assignments;    bills    of    exchange,    etc. 

§  1235.     The  General  Doctrine — Requisites  of  fhe  Contract. — The 

doctrine  may  be  stated  in  its  most  general  form,  that  every  express 
executory  agreement  in  writing,  whereby  the  contracting  party  suf- 
ficiently indicates  an  intention  to  mal^e  some  particular  property, 
real  or  personal,  or  fund,  therein  described  or  identified,  a  security 
for  a  debt  or  other  obligation,  or  whereby  the  party  promises  to 
convey  or  assign  or  transfer  the  property  as  security,  creates  an 
equitable  lien  upon  the  property  so  indicated,  which  is  enforceable 
airainst  the  property  in  the  hands  not  only  of  the  original  contract- 
or, but  of  his  heirs,  administrators,  executors,  voluntary  assignees, 
and  purchasers  or  encumbrancers  with  notice.  Under  like  circum- 
stances, a  merely  verbal  agreement  may  create  a  similar  lien  upon 
personal  property.^  The  ultimate  grounds  and  motives  of  this  doc- 
trine are  explained  in  the  preceding  section;  but  the  doctrine  it- 
self is  clearly  an  application  of  the  maxim,  equity  regards  as  done 
that  which  ought  to  be  clone.-  In  order,  however,  that  a  lien  may 
arise  in  pursuance  of  this  doctrine,  the  agreement  must  deal  with 
some  particular  property,  either  by  identifying  it,  or  by  so  describ- 
ing it  that  it  can  be  identified,  and  must  indicate  with  sufficient 
clearness  an  intent  that  the  property  so  described,  or  rendered 
capable  of  identification,  is  to  be  held,  given,  or  transferred  as  se- 
cnrity  for  the  obligation.^ 

§  1236.  On  Property  to  be  Acquired  in  Future. — The  doctrine  is 
carried  still  further,  and  applied  to  property  not  yet  in  being  at 
the  time  when  the  contract  is  made.  It  is  well  settled  that  an 
agreement  to  charge,  or  to  assign,  or  to  give  security  upon,  or  to 
Mf'ect  property  not  yet  in   existence,   or  in   the   ownership   of  the 

'  Russel  V.  Russel,  1  Brown  Cli.  209.  Kirch.  110  (verbal  lien  on  leasehold); 
Burdick-  v.  .lackson,  7  Hun,  488,  Kirch.  129  (agreement  to  mortgage)  ;  Daggett 
V.  Rankin,  31  Cal.  321  (same)  ;  Hauselt  v.  Hart-ison,  105  U.  ,S.  401,  2<)  L.  ed. 
1075    (lien   on   personal   property). 

-Daggett  V.  Rankin,  31  Cal.  321,  326:  Farmers'  L.  &  T.  Co.  v.  Pennsylvania 
Plate  (iilass  Co.,  103  Fed.   132.  43  C.  C.   A.   114,  50  L.   R.  A.   710. 

-Lee  V.  Cole,  17  Oreg.  559,  21    Pac.  819. 


§  l->37  EQUITY    JUltlSPKUDENCE.  '*i -1^0 

party  making  the  contract,  or  property  to  be  acquired  by  him  in 
the  future,  although,  with  the  exception  of  one  particular  species  of 
things,  it  creates  no  legal  estate  or  interest  in  the  things  when  they 
afterwards  come  into  existence  or  are  acquired  by  the  promisor,^ 
does   constitute   an   equita])le   lien   upon   the    property   so   existing 
or  acquired  at  a  subsequent  time,  which  is  enforced  in  the  same  man- 
ner  and  against  the  same  parties  as  a  lien  upon  specific  things  exist- 
ing and  owned  by  the  contracting  party  at  the  date  of  the  contract.- 
§1237.     Form  and  Nature  of  the   Agreement— Illustrations   of 
Particular   Agreements.— The    form   or   particular   nature    of    the 
agreement  which  shall  create  a  lien  is  not  very  material,  for  equity 
looks  at  the  final  intent  and   purpose   rather  than   at   the   form; 
and  if  the  intent  appear  to  give,  or  to  charge,  or  to  pledge  property, 
real  or  personal,  as  a  security  for  an  obligation,  and  the  property 
is  so  described  that  the  principal  things  intended  to  be  given  or 
charged  can  be  sufficiently  identified,   the   lien   follows.^     Among 
the  kinds  of  agreement  from  which  liens  have  been  held  to  arise, 
the  follow^ing  are  some  important  examples:  Executory  agreements 
which  do  not  convey  or  transfer  any  legal  estate  in  the  property, 
but  which  stipulate  that  the  property  shall  be  security,  or  which 
pledge  it,  for  the  performance  of  au  obligation.^    As  an  agreement 
to  give  a  mortgage  creates  a  lien,  so  a  mortgage  which,  through 
some  informality  or  defect  in  its  terms  or  mode  of  execution,  is  not 
complete  and  valid  as  a  true  and  proper  mortgage,  will  nevertheless 
generally  create  an  equitable  lien  upon  the  property  described.    The 
intent  to  give  a  security  being  clear,  equity  will  treat  the  instru- 
ment as  an   executory  agreement  for  such  security.^     An   assign- 

^The  excepted  case  is  that  of  an  agreement  to  sell  chattels  not  yet  in  exist- 
ence, which  are  of  the  kind  said  to  have  a  "potential  existence,"  the  most 
familiar  examyile  of  which  is  an  expected  crop:  Grantham  v.  Hawley,  Hob.  132, 
Kirch.  40. 

"Holroyd  v.  Marshall.  10  H.  L.  Gas.  191,  Kirch.  42.  This  subject  is  more 
fully  treated  in  the  subsequent  chapter  upon  assignments.  See  post.  §§  1283, 
1288. 

^  Flagg  V.  Mann.  2  Sum.  48G.  533.  Fed.  Gas.  No.  4847,  Kirch.  Ifi7.  per  Story, 
.1.:  '"If  a  ti'ansaction  resolve  itself  into  a  security,  whatever  may  be  its  form, 
and  whatever  name  the  parties  may  choose  to  give  it.  it  is  in  equity  a  mortgage 
flien]." 

-  An  agreement  by  which  the  maker  incurs  an  obligation,  and  pledges  the 
produce  of  certain  land,  or  the  land  itself,  or  "gives  a  lien  on  the  land"  as 
security  for  the  performance:  Ghase  v.  Peck.  21  N.  Y.  ."iSl.  Kirch.  124.  For 
further  illustrations  of  such  agreements,  see  Bell  v.  Pelt.  .'51  Ark.  43.3,  11  S.  W. 
684,  14  Am.  St.  Rep.  ,57,  4  L.  R.  A.  247:  Perry  v.  Board  of  Missions,  102 
N.  Y.  no,  0  N.  E.   no,  Kirch.   135. 

^V^'ayt  V.  Garwithen,  21  W.  Va.  51G.  1  Scott  307;  Atkinson  v.  Miller.  34 
W.  Va.  115,  11  S.  E.  1007,  0  L.  R.  A.  544,  1  Scott  308:  where  a  mortgage  pur- 
porting to  be  given  by  a  corporation  was  not  exocntod  in  its  nnme  nor  attested  by 


741  LIENS   AKI.SIXU    FROM    l.M  PLIED   CONTKACTS.  >i  1238 

iiient  of  the  rents  and  profits  of  land  as  security  for  a  debt  is 
anotlier  mode  of  creating  an  equitable  lien  on  the  land  in  favor  of 
the  assignee^  and  the  assignment  of  a  lease  by  way  of  security 
produces  the  same  effect/  The  assignment  for  a  similar  purpose  of 
a  contract  for  the  purchase  and  sale  of  land  may  in  like  manner 
operate  to  create  an  equitable  lien  in  favor  of  the  assignee.'^  The 
equitable  liens  which  arise  from  such  assignment  must  largely  de- 
pend upon  a  performance  of  the  conditions  and  stipulations  con- 
tained in  the  original  contracts,  whatever  be  their  form,  which  are 
assigned.     .     .     . 


SECTION  III. 

AEISING    FROM    IMPLIED    CONTRACTS. 

AJNTALYSIS. 

§  1238.  Nature    of    "implied    contract"    in    equity. 

§  1239.  General  doctrine  as  to  liens  arising  ex  aequo  et  bono. 

§  1240.  ExpenditTire  by  one  joint  o^vner. 

§  1241.  Expenditure  for  the  benefit  of  the  true  owner. 

§  1242.  Expenditure  by  a  life  tenant. 

§  1243.  In   other  special   cases. 

^1238.  Nature  of  "Implied  Contract"  in  Equity.— The  term 
"implied  contract"  is  a  pure  fiction  of  the  common-law  system 
of  pleading,  invented  so  that  certain  equitable  liabilities,  not  aris- 
ing from  express  promise,  but  recognized  as  existing  by  the  courts 
of  law,  might  be  consistently  enforced  by  the  action  of  assumpsit. 
The  phrase  is  not  only  a  misnom.er  in  equity,  but  it  violates  equi- 
table conceptions.  There  is  no  necessity  for  resorting  to  the  notion 
of  "implied  contract"  to  account  for  the  existence  of  any  equitable 
rights  and  liabilities  which  do  not  arise  from  express  promise.  The 
class  of  equitable  rights  and  liabilities  which  at  law  are  referred 
to  the  fiction  of  "implied  contract"  really  exist  ex  aequo  et  bono; 
they  arise  wholly  from  considerations  of  right  and  .I'ustice,  and 
from  the  application  to  particular  conditions  of  fact  of  those  max- 
ims which  lie  at  the  foundation  of  equity  jurisprudence. 

its  corporate  seal,  but  was  executed  in  the  name  of  its  officers,  they  having 
nuthority,  however,  to  bind  the  corporation  by  executing  the  mortgage  in  its 
name,  it  was  held  to  create  an  equitable  lien:  Love  v.  Sierra  Nevada  Co.,  32 
Cal.  639,  652,  91   Am.  Dec.  602. 

*Ex  parte   Wills.   1   Ves.   162. 

■''  .-\  bond  conditioned  to  convey  by  deed  upon  payment  of  tlio  (uirchase  price 
is  in  its  operation  tantamount  to  an  agreement  to  convey,  and  the  liens  arising 
from  it  are  identical  Avith  the  liens  of  the  vendor  and  the  vendee  arising 
from  the  ordinary  contract  f'^r  the  sale  of  land  described  in  a  subsequent 
section:  (Tvaham  v.  McCarojibell,  Meigs  .52,  33  Am.  Dec.  126,  1  Ames  Eq. 
Jur.  205;   Button  v.  Sehroyer,  5  Wis.  508,  1  Ames  Eq.  Jur.  225. 


§1241  EQUITY     JUIU.SPRLDKXCK.  'H^ 

§  1239.  General  Doctrine  as  to  Liens  Arising  ex  Aequo  et  Bono. 
--In  addition  to  the  general  doctrine  that  equitable  liens  are  cre- 
ated by  executory  contracts  which,  in  express  terms,  stipulate  that 
property  shall  be  held,  assigned,  or  transferred  as  security  for  the 
promisor's  debt  or  other  obligation,  there  are  some  further  instances 
where  equity  raises  similar  liens,  without  agreement  therefor  be- 
tween the  parties,  based  either  upon  general  considerations  of  jus- 
tice (ex  aequo  et  bono),  or  upon  the  particular  equitable  principle 
tliat  he  who  seeks  the  aid  of  equity  in  enforcing  some  claim  must 
himself  do  equity, — that  is,  must  recognize  and  admit  the  equitable 
rights  of  the  opi)osite  party  directly  connected  with  or  arising  out 
of  the  same  subject-matter.  I  shall  briefly  describe  the  most  im- 
portant instances  Avhich  belong  to  this  species  of  equitable  liens. 

§  1240.  Expenditure  by  One  Joint  Owner. — Where  two  or  more 
per.sons  are  joint  purchasers  or  owners  of  real  or  other  property, 
and  one  of  them,  acting  in  good  faith  and  for  the  joint  benefit,  makes 
repairs  or  improvements  upon  the  property  which  are  permanent, 
and  add  a  permanent  value  to  their  entire  estate,  equity  may  not 
only  give  him  a  claim  for  contribution  against  the  other  joint  own- 
ers, with  respect  to  their  proportionate  shares  of  the  amount  thus 
expended,  but  may  also  create  a  lien  as  security  for  such  demand 
upon  the  undivided  shares  of  the  other  proprietors.^ 

§  1241.  Expenditure  for  the  Benefit  of  the  True  Owner, — Such 
an  equitable  lien  has  not  always  been  confined  to  cases  in  which  a 
contract  to  reimliurse  could  be  implied  at  law.  The  right  to  a  con- 
tribution or  reimbursement  from  the  owner,  and  the  equitable  lion 
on  the  property  benefited  as  a  security  therefor,  have  been  extended 
to  other  cases  where  a  party  innocently  and  in  good  faith,  though 
under  a  mistake  as  to  the  true  condition  of  the  title,  makes  im- 
provements or  repairs  or  other  expenditures  which  permanently  in- 
crease the  value  of  the  property,  so  that  the  real  owner,  mlicn  lie 
seels  the  aid  of  e(j}iHii  to  establish  his  right  to  the  property  itself, 
or  to  enforce  some  equitable  claim  upon  it,  having  been  substantially 
benefited,  is  recpiired,  upon  principles  of  justice  and  equity,  to 
repay  the  amount  expended.^ 

^Lake  v.  (libson,  1   Eq.  Cas.  Abr.  290.  pi.  .3.  1   Seott  367. 

^  In  Older  that  there  may  be  a  claim  for  reimbursement  and  a  lien  as  security 
therefor  in  any  case  of  tliis  general  kind,  either  the  aid  of  a  court  of  equity 
nuist  be  requisite  on  behalf  of  the  owner  npiinst  \\hom  the  claim  for  reim- 
bursement is  made,  so  that  he  can  be  compelled  to  do  equity,  or  else  there 
must  be  some  element  of  fraud  in  the  transaction  as  ground  of  equitable 
interference.  If.  therefore,  the  true  owner  can  recover  his  land  by  nn  action 
at  law,  equity  \\\\\  not.  in  the  alisence  of  fraud,  compel  him  to  reimburse 
the  occupant  even  in  good  faith  for  disbursements  made  in  repairs  and  im- 
provements.    (See  ante,   §55  807,  821 :   Moore  v.   Cable,   1   Johns.   Ch.   38,5,   Kirch. 


743  LIENS  IKOM  CllAliGES  BY   WILL  OK  DEED.  §  1244 


SECTION  IV. 

ARISING   FROM  CHAKCES  BY   WILL  OR  BY  DEED. 

ANALYSIS. 

§  1244.  Oencial  cloctrine;   nature  of  a   charge. 

§   1245.  What  amounts  to  a   cliarge  creating  such   a   lion. 

§  1246.     The   same;    express   charge. 

§   1247.  The   same;    implied    charge;    English    and    American    rules    stated 

in  foot-note. 
§    1248.  Observations   upon   Hie   rules   adopted   by   the  American    courts. 

§  1244.  General  Doctrine — Nature  of  a  "Charge." — Another  spe- 
cies of  equitable  lien  not  growino'  out  of  contract  directly  between 
the  parties  arises  when  specific  property — a  lot  of  land,  a  fund  of 
securities,  or  the  land  contained  in  a  residuary  devise — is  con- 
veyed, devised,  or  bequeathed  subject  to  or  charged  with  the  pay- 
ment of  debts,  legacies,  portions,  or  annuities  in  favor  of  third 
persons  given  by  the  same  instrument.  The  legal  title  to  the  prop- 
erty vests  in  the  grantee,  devisee,  or  other  recipient,  but  a  lien 
thereon  is  created  in  favor  of  the  beneficiary  named,  which  can  be 
enforced  in  equity.  Where,  for  example,  land  is  devised  charged 
with  the  payment  of  the  testator's  debts  generally,  a  lien  arises 
in  favor  of  the  creditors,  and  any  one  or  more  of  these  can  enforce 
it  against  the  land  so  devised;  or  where  a  lot  is  devised  charged 
■with  the  payment  of  a  particular  legacy,  the  legatee  can  in  like 
manner  enforce  his  lien  against  such  tract  in  the  hands  of  the  de- 
visee.^ There  is  a  plain  distinction  pointed  out  in  the  previous 
chapter  on  trusts,  between  a  gift  of  property  in  trust  merely  to 
pay  debts  or  legacies,  and  a  gift  of  property  charged  with  or  sub- 
ject to  the  payment  of  debts  or  legacies. - 

.524,  See.  in  general.  Thomas  v.  Evans.  105  X.  Y.  G14.  12  N.  E.  .571,  59  Am. 
Rep.  510:  Williams  v.  Vanderbiit.  145  111.  238,  251,  36  Am.  St.  Rep.  486, 
404,  34  N.  E.  476,  21  Tj.  R.  A.  480.  Tliis  rule  has  been  changed  by  statute 
in  several  of  the  states,  which  allow  compensation  to  defendants,  even  in 
actions  of  ejectment,  when  the  land  is  recovered  from  them  for  the  "better- 
ments"  which  they  have  added   to  the  land. 

*  \\'hpre  the  charge  consists  in  a  direction  that  the  devisee  shall  pay  a  legacy 
or  debt,  his  acceptance  creates  a  personal  liability:  Brown  v.  Knapj).  70 
N.  Y.  136.  But  where  there  is  no  such  direction,  and  the  land  is  given  simply 
subject  to  the  payment,  or  tlie  charge  is  in  any  manner  made  upon  the  land 
alone,  the  devisee  assumes  no  personal  liability;  the  remedy  of  the  legatee 
or  creditor,  based  upon  sucli  charjre.  is  confined  to  his  enforcement  of  the 
lien  upon  the  land:  Clift  v.  Moses,  116  N.  Y.  144,  22  N.  E.  303.  See,  also, 
Nudd  V.   Powers.  136  Mass.  273. 

*See  ante,  S  1033,  note. 


§  1-347  EQUITY    JURISPRUDENCE.  744 

§  1245.     What  Amounts  to  a  Charge   Creating  Such  a  Lien. — 

Since,  according'  to  the  settled  general  doctrine,  the  personalty  is 
ordinarily  the  primary  fund  for  the  payment  of  debts,  and  is  the 
I)rimary  and  even  only  fund  for  the  payment  of  legacies  as  between 
the  legatees  and  the  devisees,  it  follows  that  an  intention  on  the 
l)art  of  the  testator  to  change  this  natural  order  by  a  charge  upon 
lands  devised,  which  should  render  them  primarily  or  even  ratably- 
liable  for  the  payment  of  all  or  of  any  particular  debts  or  lega- 
cies, must  clearly  appear,  either  from  the  express  language  of  the 
will  or  by  fair  and  necessary  implication  from  the  various  dispo- 
sitions made  by  the  testator.^  A  charge  of  debts  or  legacies  upon 
lands  devised  may  be  either  express  or  implied. 

§  1246.  The  Same.  Express  Charge. — A  testator  may  in  ex- 
press terms  charge  the  payment  of  all  his  debts,  or  any  individual 
debt,  and  all  his  legacies,  or  any  of  them,  either  upon  the  lands  de- 
vised by  a  residuary  clause,  or  upon  any  particular  lot  or  parcel 
of  land  specifically  devised,  and  the  charge  may  be  upon  the  cor- 
pus of  the  land,  or  upon  the  rents  and  profits  alone.  The  same  is 
true  of  an  express  charge  upon  any  particular  fund  of  personal 
property  bequeathed,  or  npon  the  residue  given  to  the  residuary 
legatee.  What  language  will  amount  to  an  express  charge  must 
always  be  a  matter  of  construction  and  interpretation,  depending: 
upon  the  terms  employed  in  each  individual  case.^ 

§  1247.  The  Same.  Implied  Charge.— The  intention  of  a  testa- 
tor to  charge  debts  and  legacies  npon  the  real  estate  devised  may 
also  be  implied  from  the  general  dispositions  of  the  will. — from 
tlie  mode  in  which  the  real  and  the  personal  property  are  donated. 
The  English  and  the  American  decisions  all  recognize  this  fact, 
hut  they  are  not  all  agreed  npon  the  effects  produced  by  particular 
dispositions.     ... 


SECTION  V. 
THE   GRANTOR'S   LIEN   ON   CONVEYANCE. 

AXALY8TS. 

§§   1249-1254.  The   ordinary  grantor's   lim   for  impaid   purchase   priee. 

§   1249.  General    doctrine:    in    what    states    adopted    or    rejected;    states 

classified    in    foot-notes. 
S   12.50.  Origin    and    rationale;    Ahrend    v.    Odiorne,    discnssed. 
S   1251.  Requisites,   .extent,    and    effects    of    this    lien;    great    uncertainty 

and    conflict   in   the   results    of   judicial    opinion. 
§   1252.  How  discliarged   or  waived;    effect   of  taking  other   security,   etc. 

'  Hoyt  V.  Hoyt,  85  N.  Y.   142. 

'See  Merritt  v.   Bucknam,   78   Me.   504,   7   Atl.   .'383;    Metcalfe  v.   Hutchinson, 
L.   R.   1   Ch.   Div.   501. 


745  THE  oHANTon's   Lri:x   ox   coxveyanck.  S  1'^")0 

§  1253.  Against    whom   llic  lien  avails. 

§  1254.  In  favor  oi   whom  tlie  lien  avails;   whether  or  not  assignable. 
§§   1255-1259.  Grantor's   lien   by  reservation. 

§  1255.  General    description. 

§  125G.  What  creates  a  lien   by   reservation. 

§  1257.  Essential   nature  of  the   lien. 

§  1258.  Its  operation  and  ettect. 

§  1259.  The  grantor's  dealing  with  this   lien:    waiver:   assignment. 

§  1249.     General  Doctrine — In  What  States  Adopted  or  Rejected. 

— Although  the  grantor's  and  the  vendor's  lien  are  ordinarily  treat- 
ed of  together  by  one  and  the  same  description  and  discussion, 
yet  they  are  essentially  different,  producing  different  consequences, 
and  governed  in  many  important  and  practical  respects  by  ditt'er- 
ent  rules.  By  presenting  them  separately,  more  accuracy  and  cer- 
tainty will  result,  and  mueli  nnnecessary  confusi^m  will,  I  think, 
be  avoided.  It  is  a  firmly  established  doctrine  of  the  English 
equity,  that  the  grantor  of  land,  who  has  sold  and  conveyed  and 
delivered  possession  to  the  grantee,  as  well  as  the  vendor  in  a  con- 
tract for  the  sale  and  purchase  of  land  who  has  delivered  possession 
to  his  vendee,  retains  an  equitable  lien  upon  the  land  for  the  un- 
paid purchase-money,  although  he  has  taken  no  distinct  agreement 
or  separate  security  for  it.  and  even  though  the  deed  recites  that 
the  consideration  has  been  fully  paid.^  The  grantor's  lien  exists 
in  the  following  states  and  territories:  Alabama,  Arkansas,  Cali- 
fornia, Colorado.  District  of  Columbia,  Florida.  Illinois.  Indiana, 
Iowa.  Kentucky.  Maryland,  Michigan,  Minnesota,  Mississippi,  ^lis- 
souri.  New  Jersey,  New  York.  Ohio,  Tennessee,  Texas.  Wisconsin. 
In  several  of  these  commonwealths  the  lien  has  been  recognized 
by  statute:  and  in  a  few  of  them,  it  seems,  nnder  a  somewhat  modi- 
fied form,  to  be  the  ordinary  mode  of  securing  payment  in  convey- 
ances of  land  on  credit.  In  the  remaining  states  of  the  Union  the 
doctrine  has  either  been  condemned  by  the  courts,  or  after  having 
been  judicially  accepted,  has  been  abrogated  by  statute,  or  the 
question  as  to  its  existence  does  not  seem  to  have  been  finally  de- 
termined. The  following  states  belong  to  this  class,  in  which  the 
lien  does  not  exist,  either  because  rejected  or  not  adopted  by  the 
courts,  or  abolished  by  statutes:  Connecticut.  Delaware,  Georgia, 
Kansas.  IMaine.  "Massachusetts.  Nebraska.  New  Hampshire,  North 
Carolina.  [Oregon"!.  Pennsylvania.  Ehode  Island.  South  Carolina, 
Vermont.  Virginia.   fWashington"].   West  Virginia. - 

§  1250.     Origin  and  Rationale. — With  regard  to  the  origin  and 

»Mackrpth  v.  Symmons,  15  Vos.  329.  1  Load.  Ca^.  l^q..  4th  Am.  ed.,  447, 
1  Scott  71:  Garson  v.  Green,  1  Johns,  (^h.  .30S.  1  Scott  7f> :  Chase  v.  Peck, 
21  N.  Y.  .581,  Kirch.  124. 

-Ahrend  v.  Odiorne,  118  Mass.  201.   19  .Am.  Rej).  449.  Kirch.   131. 


§  DiV^O  EQUITY    JLKISPRUDKNCE.  T4G 

rationale  of  the  grantor's  lien,  there  has  been  a  great  diversity 
of  opinion.  It  has  been  accounted  for  as  a  trust;  as  an  equitable 
mortgage;  as  arising  from  a  natural  equity;  and  as  a  contrivance 
of  the  chancellors  to  evade  the  unjust  rule  of  the  early  common 
law  by  which  land  was  free  from  the  claims  of  simple  contract 
creditors.^  Notwithstanding  all  these  diifering  theories,  as  illus- 
trated by  the  quotations  in  the  foot-notes,  the  original  and  true 
ground  of  this  lien  appears  to  me  very  simple  and  obvious.  It  is 
clearly  one  of  the  many  instances  to  be  found  in  the  early  English 
jia'isprudence,  whether  legal  or  equitable,  of  the  higher  importance, 
consideration,  and  value  given  to  real  than  to  personal  property. 
It  is  a  most  natural  judicial  conception  that  upon  the  sale  of  aiu/ 
thing  on  credit,  the  very  identical  thing  sold  should  be  regarded 
in  some  sort  as  ^  special  fund  out  of  which  payment  of  the  price 
was  to  be  obtained,  or  at  least  secured,  and  that  the  seller  should 
not  be  considered  as  parting  absolutely  with  his  whole  interest  and 
dominion  until  the  price  was  fully  paid.  This  natural  conception 
would  undoubtedl}^  have  manifested  itself  in  a  universal  rule,  ap- 
plicable to  the  sales  of  all  things,  had  not  other  considerations  and 
motives  of  policy  prevented.  Such  considerations  and  motives  did 
interfere  and  prevail  in  the  case  of  chafrels  and  all  personal  prop- 
erty. The  interests  of  trade  and  commerce  required  that  the  trans- 
mission of  these  things  should  be  free,  and  that  ownership  should 
go  or  appear  to  go  with  possession.  These  reasons,  joined  with  the 
comparatively  slight  importance  given  to  the  ownership  of  personal 
property  resulting  from  feudal  institutions,  prevented  the  appli- 
cation of  the  principle  to  the  sale  of  chattels  and  things  in  action, 
in  the  same  manner  as,  at  a  later  day,  the  same  reasons  were  ap- 
plied with  even  greater  force  to  the  transfer  of  negotiable  instru- 
ments. Land,  however,  not  being  looked  upon  as  a  subject  of 
commerce,  being  closely  associated  with  family  interests  and  social 
distinction,  its  free  transmission  not  being  considered  as  essential, 
and  its  ownership  being  highly  favored  and  surrounded  with  senti- 
ments of  peculiar  feudal  honor,  it  was  inevitable  that  the  natural 
principle  which  I  have  described  should  have  been  allowed  its  full 
force  and  effect  upon  the  sale  of  real  estate.  Its  ownership  being 
so  high  and  almost  sacred  a  right,  the  proprietor  selling  on  credit 
v/as  not  considered  as  parting  with  every  interest  or  dominion  over 
the  particular  tract,  although  he  had  delivered  possession,  until 
he  had  received  full  payment  of  the  price  which  had  been  agreed 
upon  as  a  substitute  for  the  land  itself.     As  the  common-law  rules 


'  riie   last-namptl   opinion   was   maintained    in    Alirend   v.    Odiorne,    118   Mass. 
261,  206,  19  Am.  Rep.  449,  Kirch.  131,  by  Mr.  Chief  Justice  dray. 


747  T]iE  (iRANTOir's    LiK.v   OX    coxvj:ya>-ce.  S  I'iql 

furnished  no  means  for  workinii-  out  this  idea,  it  was  both  natural 
and  inevitable  that  ecjuity  should  make  the  conception  practical  un- 
der the  familiar  form  of  an  equitable  lien.-  In  later  times,  the 
equity  judges,  attempting-  to  give  .some  explanation  of  the  doctrine, 
invented  the  theories  of  trust,  mortgage,  and  the  like.  The  cor- 
rectness of  this  rationale  further  appears  from  the  fact  that  under 
some  circumstances  the  lien  has  been  extended  by  modern  judges 
to  sales  of  personal  property, 

§  1251.  Requisites,  Extent,  and  Effect  of  this  Lien — Uncertain 
and  Conflicting  Results  of  Judicial  Opinion. — The  grantor's  lien, 
■wherever  recognized,  is  only  permitted  as  a  security  for  the  unpaid 
purchase  price,  and  not  for  any  other  indebtedness  nor  liability. 
There  must  be  a  certain,  ascertained,  absolute  debt  owing  for  the 
purchase  price;  the  lien  does  not  exist  in  behalf  of  an,y  uncertain, 
contingent,  or  unliquidated  demand.^  No  other  single  topic  be- 
longing to  the  equity  jurisprudence  has  occasioned  such  a  diversity 
and  even  discord  of  opinon  among  the  American  courts  as  this  of 
the  grantor's  lien.  Upon  nearly  every  question  that  has  arisen  as 
to  its  operation,  its  waiver  or  discharge,  the  parties  against  whom 
it  avails,  and  the  parties  in  Avhose  favor  it  exi.sts,  the  decisions 
in  dififerent  states,  and  sometimes  even  in  the  same  state,  are  di- 
rectly conflicting.  It  is  practically  impossible  to  formulate  any 
general  rules  representing  the  doctrine  as  established  throughout 


''It  is  evident  from  the  foregoing  account  that  the  theory  of  trust  is 
utterly  without  fomidation,  while  that  lately  adA'anced  by  the  ]\Iassachusetts 
court  is  imperfect  and  unsatisfactory — substituting,  in  fact,  an  effect  for 
a  cause.  The  absence  of  any  power  at  the  common-laAv  to  make  land  liable 
for  ordinary  debts,  instead  of  being  the  source  of  the  grantor's  lien,  was 
itself  only  another  instance  and  consequence  of  the  same  general  superiority 
given  to  the  ownership  of  land ;  both  were  incidents  of  one  common  mode 
of  treating  real  estate  as  compared  with  personal.  I  venture  the  opinion 
that  it  is  also  obvious  from  tlie  explanation  of  the  text  that  the  original 
grounds  and  reasons  for  admitting  the  grantor's  lien  do  not  exist  in  our  own 
country,  and  the  lien  itself  is  not  in  hai-mony  with  our  general  real-property 
law.  The  tendency  both  of  our  legislation  and  of  our  social  customs  is  to 
make  land  a  subject  of  commerce,  and  its  transmission  as  free  as  possible; 
while  the  rights  of  grantors  can  be  fully  protected  by  mortgages  which,  in 
nearly  all  the  states,  are  widely  different  from  the  instrument  bearing  the 
same  name  in  England.  See  Frame  v.  Rliter,  29  Oreg.  121,  45  Pac.  290,  .54 
Am.  St.  Kep.  781.  34  L.  R.  A.  «90. 

'The  lien  did  not  exist  in  the  following  cases:  Peters  v.  Turrell,  43  Minn. 
473,  45  N.  VV.  867,  19  Am.  St.  Rep.  2,52  (agreement  to  support  grantor  for  life)  ; 
Parrish  v.  Hastings,  102  Ala.  414,  14  South.  783,  48  Am.  St.  Pvcp.  .50  (agree- 
ment to  fence  the  land);  Graham  v.  Moffett,  119  Mich.  303.  75  Am.  St.  Rep. 
393,  78  N.  VV.  132  (does  not  exist  for  unliquidated  damages  resulting  from  the 
vendee's  fraudulent  misrepresentations  as  to  the  value  of  personal  property 
U'hich   formed   part   of  <  he  price). 


§  j.2b2  EQUITY    JUIMSPUUDKXCE.  748 

the  whole  eoimtry.  The  subjects  to  be  considered  in  the  further 
treatment  are:  1.  When  the  lien  is  discharged  or  waived;  2. 
^\gainst  whojn  it  avails;  and  3.  In  favor  of  whom  it  avails. 

§  1252.  How  Discharged  or  Waived. — It  is  a  generally  settled 
rule  that  the  lien,  if  otherwise  existing,  is  not  waived  or  destroyed 
by  the  grantor's  giving  a  receipt  in  full  for  the  purchase  price,  or 
by  a  recital  to  that  effect  in  the  deed,  nor  by  the  grantee's  giving- 
his  own  personal  security — -his  bond,  note,  bill — for  the  price. ^  If, 
however,  the  grantee's  own  bond,  note,  or  other  promise  is  given, 
not  as  a  security  for  the  price,  but  as  a  substitute  for  or  in  novation 
of  the  purchase  price,  so  that  no  debt  for  tlie  price  any  longer  ex- 
ists, the  lien  is  destroyed,  and  a  fortiori  this  result  follows  where 
t!ie  bond,  or  note,  or  engagement  of  a  third  person  is  thus  given.- 
The  complementary  doctrine  is  also  generally  settled,  that  the  ac- 
ceptance of  distinct  independent  security  for  the  purchase  price, 
other  than  the  grantee's  own  personal  undertaking-,  destroys  or 
discharges  the  lien,  unless  the  continued  existence  of  the  lien  is 
agreed  upon  by  the  parties.  While  this  doctrine  is  generally  accept- 
ei!,  there  is  much  conflict  of  opinion  in  its  application  to  particular 
r'onditions  of  fact.^  The  securities  which  ordinarily  produce  this 
effect  are,  the  grantee's  mortgage  on  the  very  land  conveyed;  his 
mortgage  on  other  land;  the  note,  bill,  bond,  or  undertaking  of  a 
third  person ;  the  note  or  bill  of  the  grantee  indorsed  or  guaranteed 
by  a  third  person,  and  the  like;  but  the  decisions  are  not  unani- 
mous.^ Finally,  after  the  lien  has  risen  against  the  grantee,  it  may 
be  waived  as  against  third  persons  by  the  laches  or  affirmative 
acts  of  the  grantor  himself.  In  other  words,  the  grantor  nmy,  by 
his  negligence  or  other  acts,  postpone  his  lien,  or  estop  himself 
from  asserting  it  against  third  persons  who  have  acquired  title 
luuler  the  grantee.'' 

HJarson  v.  Greoii,  1  -rolins.  Ch.  ;?0S,  1  Scott  70;  Maroney  v.  Boyle,  141  X.  Y. 
4G-2,  m  N.  E.  511,  38  Am.  St.  Rep.  821  (orantee's  own  note,  etc.);  Hood  v. 
Hammond,  128  Ala.  .)()9,  30  South.  540,  86  Am.  St.  Rep.  159  (lien  held 
to    remain,   altliougli    tlie   deht    is   barred   by   the   statute   of   limitations). 

-Williams  v.  McCarty,  74  Ala.  295. 

"  Some  cases  iiold  that  the  acceptance  of  independent  security  is  not  con- 
clusive; that  it  merely  raises  a  prima  facie  presumption  of  an  intention  to 
give  up  the  lien,  and  that  this  presumption  may  be  overcome  and  the  lien 
established:  Fonda  v.  -lones.  42  ^Miss.  792.  2  Am.  Rep.  660;  Woodall  v.  Kelly, 
vS3  Ala.  3(iS.  5  South.   \(\-\.   17   Am.  St.  Rep.   .'57. 

*See  Avery  v.  f'lark,  87  C'al.  fi]!).  2;")  I'ae.  nil),  22  Am.  St.  Rep.  272  (mort- 
gaoe  by  grantee)  :  Fouch  v.  Wilson,  60  Ind.  64,  28  Am.  Rep.  651  (but  lien 
not  defeated  by  a  forged  security)  :  Kendrick  v.  Eggleston.  56  Iowa  128.  41 
Am.  Rep.  00,  8  N  W.  786  (lien  defeated  by  security  which  was  valid  but 
proves  to  be  worthless).  Personal  undertaking  or  indorsement  of  third  per- 
son  defeats  the   lien.     See  Rice  v.   Rice.  36   Fed.   858.  < 

°  Rice  v.  Rice,  2  Drew,  73,  H.  &  B.  23,  1  Scott,  334. 


749  THE    (iHAXTOK's     LIEN     OX     CONVEYANCE.  §  12o-i: 

§  1253.  Against  Whom  the  Lien  Avails. — The  grantor's  lien  once 
arising',  and  not  waived  by  any  act  or  default  of  hi.s,  avails  against 
the  grantee  himself,  his  heirs,  devisees,  and  other  immediate  suc- 
cessors in  interest.^  It  also  avails  against  all  subsequent  purchasers 
and  encumbrancers  of  the  land  under  the  grantee  who  are  not  bona 
lide  purchasers  for  a  valuable  consideration  and  without  notiee.- 
It  does  not  prevail  against  a  subsequent  bona  fide  purchaser  or 
mortgagee  of  the  land  for  a  valuable  consideration  and  without  no- 
tice of  the  grantee's  equit3^•'  Whether  the  grantor's  lien  is  or  is 
not  superior  to  that  of  subsequent  judgments  recovered  against 
the  grantee  is  a  question  upon  which  the  American  decisions  are 
in  direct  conflict;  nor  is  it  possible  by  any  interpretation  to  recon- 
cile their  opposing  views.  On  principle,  however, — and  especially 
when  considered  in  connection  Avith  the  universal  sj'stem  of  regis- 
try.— it  seems  to  me  clear  that  the  subsequent  judgment  liens  are 
entitled  to  precedence.^ 

§1254.  In  Favor  of  Whom  the  Lien  Avails. — In  England  the 
prevailing  opinion  regards  the  lien  not  as  merely  personal  to  the 
grantor,  but  as  an  interest  in  land  of  which  other  parties  may  avail 
themselves  by  subrogation  or  marshaling,  as  legatees  or  judgment 
creditors  of  the  grantor,  or  by  direct  assignment.     In  this  countiy 

'Mackretli  v.  yyninions,   15  Ves.  329,  1   Scott  71. 

-Pylant  v.  Reeves,  53  Ala.  132,  25  Am.  Rep.  (JOo ;  Woodall  v.  Kelly,  85  Ala. 
3GS,  5   South.    164,  7   Am.   St.   Rep.   57. 

=  First  Nat.  Bank  v.  Tompkins,  57  Fed.  20,  6  C.  C.  A.  237.  As  to  what 
constitutes  notice  by  recitals  in  deed,  by  possession,  etc.,  see  ante,   §§  626,  628. 

^  .  .  .  The  grantee  holds  the  full  legal  title  and  estate,  and  he  appears  by  the 
records  to  be  the  legal  owner.  The  grantor's  interest  is  purely  an  equitable 
lien,  secret,  undisclosed  Iw  the  records.  A  judgment  creditor  of  the  grantee 
has  a  right  to  regard  him  as  the  complete  owner  in  reliance  upon  the  records; 
he  has  no  knowledge,  and  ordinarily  no  means  of  knowledge,  of  the  grantor's 
secret  equitable  lien.  I'he  judgment  against  the  grantee  is  a  legal  lien  upon 
the  legal  estate  in  his  hands.  It  is  not  the  case  of  two  successive  equitable 
liens  of  the  same  nature,  where  priority  of  time  gives  precedence.  It  is  true 
tiiat  a  prior  equitable  eftafe  may  sometimes  prevail  against  a  subsequent  legal 
lien  by  judgment ;  but  this  doctrine  is  confined  by  the  strong  tendency  of 
American  decisions  to  true  equitable  estates.  The  grantor's  interest  is  in  no 
sense  an  equitable  estalr;  it  is  a  mere  lien,  not  efisentiaJh/  of  a  higher-  nature 
than  that  of  a  judgment,  while  that  of  the  judgment  possesses  the  supe- 
riority of  being  legal.  The  doctrine  that  between  a  prior  equitable  interest  and 
a  subsequent  Icr/aJ  interest  of  equal  character,  the  legal  will  prevail,  seems 
to  l)e  controlling.  In  my  opinion,  it  is  plain  frojn  this  analysis,  oti  principle, 
that  the  i)rior  grantor's  equitable  lien  nnist  succumb  to  the  subs('(|ucnl  legal 
lien  of  the  judgment  against  the  legal  estate  of  the  grantee,  when  the  judg- 
ment is  recovered  for  a  valuable  consideration  and  without  notice.  Giving 
the  judgment  the  precedence,  see  Cutter  v.  Ammon,  65  Iowa  281,  21  N.  W. 
(■(04.  (living  the  grantor's  lien  the  precedence,  see  Waltim  v.  Ilargroves,  42 
Miss.   IS,  97  Am.  Dec.  429. 


§  1256  EQUITY    JLIUSI'KUDEXCE.  750 

the  strong  tendency  of  the  court  has  been,  for  reasons  difficult  to  be 
understood,  to  ti'eat  the  lien  as  strictly  personal  to  the  grantor, 
and  as  incapable  of  being  transferred,  either  by  direct  assignment 
or  by  equitable  subrogation.  It  may,  of  course,  be  enforced  by  the 
grantor  himself,  and  by  his  heirs  or  immediate  successors.  In  Eng- 
land it  may  be  enforced  by  an  assignee,  and  an  assignment  of  the 
debt,  it  seems,  carries  also  the  lien.^  The  English  doctrine  is  fol- 
lowed in  a  portion  of  the  states,  but  in  most  of  them  the  lien  is 
held  personal  to  the  grantor,  and  not  assignable.-  By  this  theory, 
an  assignment  of  the  debt,  either  with  or  without  an  express  assign- 
ment of  the  lien,  does  not  carry  the  lien  so  that  it  may  be  enforced 
by  or  on  behalf  of  the  assignee.  Where  an  express  assignment  is 
thus  forbidden,  it  necessarily  follows  that  no  equitable  assignment 
b}^  subrogation  is  possible.  Notwithstanding  this  weight  of  au- 
thority, the  restrictive  rule  seems  to  rest  on  no  ground  of  principle. 

§  1255.^  Grantor's  Lien  by  Reservation.— In  several  of  the  states 
the  practice  has  become  quite  common  of  reserving  a  lien,  as  se- 
cui-ity  to  the  grantor  for  the  unpaid  purchase  price,  by  means 
of  an  express  clause  or  stipulation  in  the  deed  of  conveyance. 
Such  a  reservation  creates  a  specific  lien  which  in  its  essential  na- 
ture more  resembles  the  ordinary  purchase-money  mortgage  given 
back  by  the  grantee,  than  the  implied  equitable  lien  of  the  grantor 
heretofore  described;  for  since  it  is  contained  in  and  recorded  with 
the  deed,  it  becomes  notice  to  and  takes  precedence  of  all  subse- 
quent purchasers  and  encumbrancers  holding  under  or  deriving 
title  through  the  same  conveyance-,  and  it  generally  has  the  same 
priority  among  other  outstanding  encumbrances  which  is  accorded 
to  the  purchase-money  mortgage. 

§  1256.  What  Creates  a  Lien  by  Reservation.— The  provision 
which  shall  thus  create  a  lien  by  reservation  may  be  of  various 
forms;  but  it  must  be  something  more  than  a  recital  that  a  speci- 
fied amount  of  the  purchase  price  remains  unpaid.  It  must  show 
the  amount  of  the  purchase-money  due  which  is  to  be  secured  by 
the  lien,  and  must  in  some  manner  express  an  intent  that  the  pay- 
ment  of  such   amount   is  to  be   charged   upon   the   land.— that   the 


'Dryden   v.   Frost,   3   :\lyliie  i"c   C.    670. 

'Not  assignable:  Baum  v.  Grigshy.  21  Cal.  172,  81  Am.  Dec.  l.^S  (Field. 
C.  J.)  ;  Wellbom  v.  Williams,  9  Ga.  86.  52  Am.  Dec.  427.  Assignable:  Sloan 
V.  Campbell,  71  l\Io.  ,387.  36  Am.  Rep.  403:  Kern  v.  Hazlerigg,  U  Tnd.  443,  71 
Am.  Dee.  860. 

WTienever,  by  nn  avrangeinent  between  the  parties,  a  note  for  the  purchase 
price  is  given  by  the  grantee  to  a  third  person  instead  of  to  the  grantor,  such 
person  is  generally  held  entitled  to  enforce  the  lien:  Perkins  v.  Gibson, 
51  Miss.  699,  24  Am.  Rep.  644. 


751  TIIK    UUAXTOU'.S    LIKX    ON     COXVKYAXCE.  §  1259 

land  is  conveyed  subject  to  a  definite  charge  for  the  payment  of 
the  sum/ 

§  1257.  Essential  Nature  of  This  Lien. — This  peculiar  species  of 
iien  differs  essentially  from  that  which  equity  raises  by  implica- 
tion in  favor  of  the  grantor,  since  it  is  based  upon  and  created  by 
express  contract.  It  is  in  all  essential  elements  a  mortgage.  The 
deed  is  made  to  embody  an  informal  mortgage  or  defeasance,  and 
is  thus  prevented  from  being  absolute  so  long  as  the  price  remains 
unpaid.  The  lien  is  made  a  matter  of  record,  is  thus  a  constructive 
notice  to  all  subsequent  dealers  with  the  land,  and  it  is  in  fact 
governed  by  the  rules  which  regulate  the  effect  of  an  ordinary 
mortgage.^  It  is  in  fact  an  American  mode  of  realizing  the  purely 
equitable  conception  of  a  mortgage  stripped  of  all  its  legal  forms 
and  features. 

§  1258.  Operation  and  Effect  of  This  Lien. — It  follows  as  a  neces- 
sary consequence  that  when  such  a  lien  is  expressly  reserved  in 
the  deed,  the  grantee's  title  is.  in  a  certain  sense,  imperfect  until 
the  price  is  paid;  or,  to  speak  more  accurately,  the  title  is  encum- 
bered, and  all  persons  holding  or  claiming  under  or  through  the 
deed  are  affected  with  notice  of  the  lien,  and  their  rights  are  neces- 
sarily subordinate  to  it.'^  On  principle,  the  lien  by  reservation 
should  give  the  grantor  the  same  rights  of  priority  over  other  gen- 
eral encumbrancers  which  are  held  by  the  mortgagee  in  a  purchase- 
money  mortgage. 

§1259.  The  Grantor's  Dealing  with  the  Lien— Waiver— Assign- 
ment.— The  grantor's  powers  of  dealing  with  the  lien  by  reserva- 
tion are  much  more  extensive  than  those  over  the  equitable  lien 
heretofore  described.  His  acts  which  would  destroy  the  implied 
equitable  lien,  such  as  taking  other  security  on  land  from  the 
grantee,  or  taking  notes  of  third  persons  as  security,  and  the  like, 
do  not  thus  affect  the  existence  and  validity  of  the  expres.s  lien. 
The  grantor  may  of  course  Avaive  his  lien;  whether  he  does  so 
is  a  matter  of  intention,  which  must  appear  either  expressly  or  by 
acts  directly  inconsistent  with  its  existence  and  indicating  a  clear 
intent  to  waive.^  The  doctrine  is  established  by  the  great  prepon- 
derance of  authority,  that  this  lien  is  not  personal  to  the  grantor, 
hut  may  be  transferred:  that  it  passes  by  an  assignment  of  the 
note,  bond,  or  other  evidence  of  debt  given  for  the  purchase  price. 

'Heist  V.  Baker,  49  Pa.  St.  0:  Doosclier  v.  Dooscher,  Gl  Minn.  .320,  fiS  N. 
W.   7.S6. 

'To  the  general  effect,  that  this  lien  is  one  by  express  contract  resemblin": 
that  by  a  mortgage:     White  v.  Downs.  40  Tex.  225;  Gordon  v.  Rixey.  7G  Va.  694. 

MVarford  v.  Hankins.  1.50   Ind.  4S3,  50  N.  E.  468. 

'Coles  V.  Withers  33  C.ratt.   186. 


§  12G0  EQUfTY  JURISPRUDENCE.  753 

aiKl  may  be  enforced  by  the  assignee.-  When  notes  given  for  in- 
stallments of  the  purchase  price  are  secured  by  a  lien  reserved  in 
the  deed,  and  these  notes  are  transferable,  the  lien  or  quasi  mort- 
gage acquires  some  of  the  elements  of  negotiability.^  This  lien  is 
enforced  in  equity  by  a  suit  and  relief  similar  in  all  respects  to 
those  for  the  foreclosure  of  a  mortgage.* 


SECTION  VI. 


THE  VENDOR'S  LIEN  AND  THE  VENDEE'S  LIEN  ON  CONTRACT  FOR 
SALE  AND  PURCHASE. 

ANALYSIS. 

§§   1260-12G2.  Vendor's  lien  under  contract  of  sale. 

S    12G0.  General   doctrine:    vendor's   lien  and  grantor's  lien   distinguished. 
S    12GL  Essential    nature    and    effects;    vendor's    interest    determined    by 

doctrine    of   equitable    conversion. 
§   1262.  How   enforced. 
S    12(i.">.   \'endee's  lien  for  |)iirohav('-inoney  paid. 

§  1260.  Vendor's  Lien  under  Contract  of  Sale. — It  has  been  said 
in  English  and  American  decisions,  that  the  vendor's  lien  may 
arise  before  conveyance  as  Avell  as  after;  and  the  interest  or  right 
of  the  vendor  under  an  ordinary  contract  for  the  sale  of  land, 
or  a  bond  conditioned  to  sell  and  convey,  or  whatever  may  be  the 
form  of  the  agreement,  has  been  called  a  vendor's  lien,  and  treated 
in  the  same  manner  as  the  equitable  lien  arising  in  favor  of  the 
grantor  upon  an  actual  conveyance  of  the  land  where  the  purchase 
price  in  whole  or  in  part  is  left  unpaid.^  This  is  an  unnecessary 
and  an  incorrect  use  of  terms;  it  confounds  legal  notions  Avhich  are 
essentially  different.  There  is  a  plain  distinction  between  the  lien 
of  the  grantor  after  a  conveyance,  and  the  interest  of  the  vendor 
before  conveyance.     The  former  is  not  a  legal  estate,  l)ut  is  a  mere 

=  Ober  V.  (xallagher,  93  U.  S.  inn.  23  L.  ed.  82n :  Dowdy  v.  Blake.  r>0  Ark. 
205.   fi   S.    VV.   897,   7   Am.    St.   Rep.    88    i  subrogation) . 

"Where  several  notes  are  thus  secured  by  a  lie'n  of  reservation,  the  whole 
seems  to  be  analogous  to  a  mortgage  given  to  secure  several  notes.  If  the 
notes  are  transferred  to  different  persons,  the  right  of  the  holders  to  par- 
ticipate in  and  enforce  the  lien  would  seem  to  depend  upon  the  same  rules 
which   apply  to  notes   secured   by   a   mortgage.      See  ante.    §§  1201-1203. 

Mving  V.  Young  Men's  Ass'n,  1  Woods.  380.  Fed.  Cas.  No.  7811. 

'  For  instances  of  such  liens,  see  Haughwout  v.  Murphy,  22  N.  J.  Eq.  531, 
Shep.  198;  Florida  Southera  R.  R.  Co.  v.  Hill,  40  Fla.  1,  74  Am.  St.  Rep. 
124.  23  South.  560  (vendor's  lien  to  secure  damages  resulting  from  the 
torlious  taking  of  hind  under  the  power  of  eminent  domain). 


753  VEXDOK  S    Ay,B    VKXDEE  S    LIEN  §  1261 

equitable  ciuirge  on  the  land ;  it  is  not  even,  in  strictness,  an  equi- 
table lien  until  declared  and  established  by  judicial  decree.-  In  the 
latter,  although  possession  may  have  been  delivered  to  the  vendee, 
and  although  under  the  doctrine  of  conversion  the  vendee  may 
have  acquired  an  equitable  estate,  yet  the  vendor  retains  the  legal 
title,  and  the  vendee  cannot  prejudice  that  legal  title,  or  do  any- 
thing by  which  it  shall  be  divested,  except  by  performing  the  very 
obligation  on  his  part  which  the  retention  of  such  title  was  in- 
tended to  secure,— namely  by  paying  the  price  according  to  the 
terms  of  the  contract.  To  call  this  complete  legal  title  a  lien,  is 
certainly  a  misnomer.  In  case  of  a  conveyance,  the  grantor  has 
a  lien,  but  no  title.  -In  case  of  a  contract  for  sale  before  convey- 
ance, the  vendor  has  the  legal  title,  and  has  no  need  of  any  lien ; 
his  title  is  a  more  efBcient  security,  since  the  vendee  cannot  defeat 
it  by  any  act  or  transfer  even  to  or  with  a  bona  fide  purchaser.'' 
§  1261.  Essential  Nature  and  Effects.— In  fact,  the  position  of  the 
vendor  prior  to  conveyance  is  defined  and  determined  by  the  doc- 
trine of  equitable  conversion,  rather  than-  by  that  of  mere  ecpii- 
table  lien.  He  holds  the  legal  title  as  security  for  the  performance 
of  the  vendee's  obligation,  and  as  trustee  for  the  vendee,  subject 
to  such  performance,  and  that  title  may  be  conveyed  or  devised, 
and  will  descend  to  his  heirs.  In  equity,  his  real  interest  is  per- 
sonal estate ;  he  becomes  by  equitable  conversion  the  owner  of  the 
purchase-money,  of  which  the  vendee  is  his  trustee,  and  this  claim 
for  the  purchase-money  passes  on  his  death  to  his  executors  or  ad- 
ministrators. On  the  other  hand,  the  vendee  becomes,  by  conver- 
sion, the  real  beneficial,  although  equitable,  owner  of  the  land ;  his 
interest  under  the  contract  is.  in  equity,  real  estate,  and  descends 

^Orinian  v.   Brown.   1 '.Ma>;on   101.   Fed.   Cas.   Xo.   5441.  by  :\Ir.    Justice   Story. 

'See  Shaw  v.  Foster,  L.  R.  5  H.  L.  321.  and  especially  Lysaght  v.  Edwards, 
L.    R.   2   Ch.   Div.   409,   .506.   .507,   2   Keener   360,   by   Sir   George   Jessel,   M.   R. 

T'ractically.  this  lien  consists  in  the  vendor's  right  to  enforce  payment  of 
the  price,  by  a  suit  in  equity  against  the  vendee's  equitable  estate  in  the 
land,  instead  of  by  means  of  an  ordinary  action  at  law  to  recover  the  debt. 
Tn  England  the  vendor's  equitable  remedy  consists  in  a  suit  in  the  nature 
of  a  strict  foreclosure,  by  which  the  vendee  is  decreed  to  pay  the  price  within 
a  limited  time,  and  in  default  of  such  payment  the  contract  is  canceled,  the 
vendee's  equitable  estate  is  foreclosed,  and  the  vendor's  legal  estate  becomes 
again  absolute.  In  the  United  States  the  same  mode  of  enforcing  the  lien 
by  a  suit,  in  the  nature  of  a  strict  foreclosure  is  pursued:  Button  v. 
Schroyer,  5  Wis.  508.  1  Ames  Eq.  Jur.  225.  Another  mode  seems  to  bo  recog- 
'iiized.  at  least  in  some  of  the  states,  by  which  the  vendee's  equitable  estate 
under  the  contract  is  sold  in  pursuance  of  a  judicial  decree.  Such  a  sale  would 
operate  as  an  assignment  of  the  vendee's  rights  under  the  contract,  and  would 
not  be  a  cancellation  of  the  contract  itself:  Lewis  v.  Hawkins.  23  Wall.  110, 
H.  X  P..  66.5. 
48 


§  1:^63  EQUITY    JUIUSPRUDEN'CE.  754 

to  his  heirs.  The  so-called  lien  of  the  vendor  is  only  another  mode 
of  expressing  his  equitable  interest  thus  arising  from  the  doctrine 
of  conversion;  and  so  far  as  it  has  any  distinctive  signification,  it 
simply  means  his  right  of  enforcing  his  claim  for  the  purchase- 
money  against  or  out  of  the  vendee's  equitable  estate  by  means  of 
a  suit  in  equity.^ 

§1262.  How  Enforced. — The  equity  action  to  enforce  the  so- 
called  lien  is  simply  an  action  to  compel  the  vendee  to  make  pay- 
ment of  the  purchase  price  within  a  specified  time,  or  else  be  barred 
of  all  rights  under  the  contract, — that  is,  an  action  to  foreclose  the 
contract.  In  actions  at  law  to  recover  the  purchase  price,  it  is  the 
uniform  rule  that  the  vendor  must  allege  and  show  that  he  has 
tendered  a  conveyance  in  pursuance  of  the  terms  of  the  contract. 
Whether  such  tender  of  a  deed  is  a  prerequisite  to  the  vendor's 
maintaining  his  suit  in  ecpiity,  is  a  question  upon  which  the  Amer- 
ican decisions  are  in  direct  conflict,  and  the  authorities  do  not 
seem  to  preponderate  decidedly  in  favor  of  either  view.^ 

§1263.  The  Vendee's  Lien. — The  lien  of  the  vendee  under  a  con- 
tract for  purchase  of  land  for  the  purchase-money  paid  by  him  be- 
fore a  conveyance  is  the  exact  counterpart  of  the  grantor's — or,  as 
it  is  commonly  called,  the  vendor's — lien,  described  in  the  last 
section  but  one.  In  the  latter  case,  the  legal  title  has  been  conveyed 
to  the  grantee,  and  yet  the  grantor  retains  an  equitable  lien  upon 
tlic  land  as  security  for  the  purchase  price  agreed  to  be  paid.  In 
the  former  case,  the  legal  title  remains  in  the  vendor,  who  has 
simply  agreed  to  convey,  while  the  vendee,  although  having  as 
yet  accpiired  no  legal  interest  in  the  land  by  virtue  of  the  contract, 
does  obtain  a  lien  upon  it  as  security  for  the  purchase-money  he 
has  paid,  and  for  the  performance  of  the  vendor's  obligation  to 
convey.^    In  England,  therefore,  and  in  the  American  states  where 

^  See  ante,  vol.  1,  §§  ;i()8,  .372,  and  cases  cited;  also,  cases  in  last  preceding 
note:  Moser  v.  .Johnson,  88  Ala.  517,  16  Am.  St.  Rep.  58,  7  South.  146 
(since  vendor  holds  legal  title  as  security,  he  may  restrain  waste  by  vendee 
in   possession). 

Waiver:  It  is  not,  in  general,  waived  by  the  taking  of  other  security 
for  the  purchase  price,  whether  personal  or  on  land :  in  this  respect  it  differs 
from  the  ''grantor's  lien":  IMansfield  v.  Dameron.  42  W.  Va.  794,  57  Am.  St. 
Kep.  884,  26  S.  E.  527.  Priority:  On  principle,  the  vendor's  right  should 
have  priority  over  subsequent  judgments  reeoverea  against  the  vendee,  irre- 
spective of  the  question  of  notice,  since  he  retains  the  legal  title;  his  position 
in  this  respect  is  entirely  different  from  that  of  the  grantor.  See  §  721. 
Assignment:  When  notes  are  given  for  the  price,  and  these  notes  are  assigned, 
the  lien  passes,  and  may  he  enforced  by  the  assignee:  Graham  v.  McCampbelL 
JMeigs   (Tenn.)    52.  3.3  Am.  Deo.  126.  1  Ames  Eq.  Jur.  205. 

^  Freeson  v.   Bissell,   6.3   N.   Y.   168    (no  tender  necessary). 

'  VVickman  v.  Eobinson.   14  Wis.  49.3.  80  Am.  Dec.  789.   1   Scott   73. 


755  LIEX    F1{0:\1    A    DEPOSIT  OF   TITLE   DEEDS.  j?  I'2(i4 

the  grantor's  lien  has  been  adoi)U'd,  the  vendee's  lien  upon  the 
lands  contracted  to  be  sold  as  a  security  for  so  much  of  the  pur- 
chase price  as  he  has  paid  prior  to  a  conveyance,  and  for  the  per- 
formance by  the  vendor  of  his  obligation,  exists  to  the  same  extent 
against  the  same  classes  of  persons,  and  governed  by  the  same 
rules,  as  the  corresponding  lien  of  the  grantor.  The  lien  only 
arises,  of  course,  when  the  vendor  is  in  some  default  for  not  com- 
pleting the.  contract  according  to  its  terms,  and  the  vendee  is  not 
in  default  so  as  to  prevent  him  from  recovering  the  purchase-money 
paid. 


SECTION  VII. 
ARISING    FRO]M    A    DEPOSIT    OF    TITLE    DEEDS. 

ANALYSIS. 

§  1204.  The  English  doclriiie. 

§  12G5.  The    doctrine    in    the    United    States. 

§  1266.  Distinction    suggested   as   a   conclu-ion   from    American   cases. 

§  1267.  How  this  lien  is  enforced. 

§1264.  English  Doctrine. — It  is  a  well-settled  doctrine  of  the 
English  equity  that  a  deposit  of  title  deeds  as  a  security  for  the 
payment  of  money,  without  any  agreement,  either  verbal  or  writ- 
ten, to  give  a  mortgage,  creates  an  equitable  lien,  or,  as  it  is  ordi- 
narily called,  an  equitable  mortgage,  on  the  estate  of  the  debtor  of 
which  the  deeds  constitute  in  whole  or  in  part  the  title.  The  exact 
significance  and  effect  of  the  transaction  is,  that  the  debtor  thereby 
contracts  that  his  estate  in  the  land  shall  be  liable  for  the  debt,  and 
that  he  will  execute  such  mortgage  or  conveyance  as  may  be  nec- 
essary to  convey  the  estate  to  the  creditor  as  security  for  the  pay- 
ment. The  lien  thus  created  is  good  between  the  parties,  and  as 
against  all  subsequent  purchasers  or  encumbrancers  of  the  de- 
positor who  are  affected  with  notice  of  the  transaction,  and  all 
persons  holding  under  him  as  volunteers.^ 

'Russel  V.  Paissel.  1  Brown  Ch.  200.  1  Lead.  Cas.  Eq.  4th  Am.  cd.  0:n. 
Kirch.  110:  Ex  parte  Hooper.  1  ^NFcr.  7.  Kirch.  114;  Ex  parte  Kensington. 
2  Vcs.  &  B.  79.  Kirch.  111.  Tlie  doctrine  rests  upon  the  peculiar  law  and 
practice  of  England  witli  reference  to  conveyancing,  and  to  the  use  of  deeds  as 
evidence  of  ownership.  There  is  no  general  system  of  registration;  the  posses- 
sion of  deeds  is  an  evidence  of  ownership;  they  or  their  abstracts  are  ex- 
hibited to  the  intended  purchaser  for  examination  in  every  negotiation  for  ;; 
sale:  they  are  delivered  to  the  grantee  almost  as  a  luatter  of  course  in  all 
transfers  of  the  fee;  no  transfer  can  safely  be  made  without  them;  and  no  one 
is  supposed  to  have  a  right  to  their  possession  unless  he  has  some  claim 
upon    the    land    or   estate    wliich    they    represent.      Whenever    a    supposed    owner 


§  12G8  EQUITY  JURISPRUDEXCE.  756 

§  1265.  The  Doctrine  in  the  United  States.— The  basis  of  fact 
which  exists  in  England,  as  described  in  the  foot-note-  is  not  found 
in  our  law  or  our  practice;  and  as  the  doctrine  is  opjDosetl  to  all 
our  modes  of  treating  real  estate,  and  especially  to  our  system  of 
registry,  it  Avas  inevitable  that  the  doctrine  of  an  equitable  lien, 
resulting  from  a  mere  deposit  of  title  deed.s  with  a  creditor,  shoulti 
not  meet  with  any  general  and  practical  acceptance  throughout 
the  United  States.  Under  our  system  of  recording,  there  is  no  ne- 
cessity^ for  the  production,  nor  even  for  the  preservation,  of  the 
original  title  deed ;  owners  look  to  the  records  as  furnishing  the 
real  evidence  of  title,  and  as  exhibiting  the  true  condition  of  all 
interests  in  and  claims  upon  the  land  which  could  affect  the  rights 
of  purchasers  or  encumbrancers ;  and  to  the,  records  all  parties  go, 
as  a  matter  of  course,  even  in  preference  to  the  original  deeds.^ 
Iii  fact,  no  presumption  or  inference  would,  in  general,  be  raised 
fiom  the  mere  possession  of  title  deeds  by  a  stranger.  It  follows 
that  in  several  of  the  states,  wliere  the  question  has  been  judicially 
examined,  the  doctrine  has  been  distincth^  repudiated  or  not  adopt- 
ed, as  being  wludly  inconsistent  with  our  statutory  system  of  regis- 
try  and  methods  of   conveyancing.- 


SECTION  YIII. 

VARIOUS   STATUTORY   LIENS. 

ANALYSIS. 

§  1268.     General  .nature   and    temlency    of   American    legislation    on    this 

subject;    various    examples. 
§   12(5!).     How  such   liens  are  enforced. 

§  1268.  General  Nature  of  American  Legislation  on  This  Sub- 
ject.— In  addition  to  the  foregoing  liens  which  belong  to  the  gen- 
eral equity  jurisprudence,  the  legislation  of  many  states  has,  cre- 
ated or  allowed  a  variety  of  other  liens,  the  enforcement  of  which 
often  comes  within  the  ecjuity  jurisdiction,  and  has  thus  enlarged  its 
scope  as  administered  throughout  a  large  portion  of  our  countr^^ 
This  legislation  differs  so  much  in  its  details  that  I  shall  not  at- 
tempt  to   give   any   circumstantial    description    of   it,   nor   any   ab- 

offers  his  estate  for  sale  or  mortgaae,  he  nuist  produce  his  title  deeds,  and 
their  absence  from  his  possession,  wheri  demanded,  inevitably  casts  a  suspi- 
cion   on    his    title,    and    puts    the    other    party    upon    an    inquiry. 

'  See    Probasco    v.    Johnson.    2    Disn.    90.    98. 

-Bloomfield  State  Bank  v.  :\Iiller,  .55  Xebr.  243,  70  Am.  St.  Rep.  381,  75  N- 
W.   509,   44   L.    R.   A.   387. 


757  VARIOUS    STATUTOHY    LIENS.  ^  i-i6i) 

straet  of  the  statutes  tlieniselves.  The  liens  are  sometimes  charged 
upon  real  estate  and  sometimes  upon  chattels.  Their  general  ob- 
ject is  the  protection  of  those  who,  by  their  labor,  services,  skill, 
or  materials  furnished,  have  enhanced  the  value  of  the  specific 
property,  which  thus  becomes  subject  to  the  lien  as  security  for 
their  compensation.  The  most  familiar  instance,  which  may  be 
taken  as  the  type  of  the  whole  class,  is  that  known  as  the  ''me- 
chanics' lien,"  found  under  some  form  in  nearly  everj^  state.^ 

§  1269.  How  Enforced. — Many  of  these  liens  are  enforecvl  by 
purely  legal  actions,  and  their  effect  resembles  that  produced  by  a 
Ifcgal  attachment,  enabling  the  lienor  to  retain  or  recover  posses- 
sion of  the  thing,  and  to  sell  it  at  execution  sale  upon  the  judg- 
ment. Others  are  enforced  by  special  proceedings  authorized  and 
regulated  by  statute.  These  tAvo  classes  have  no  equitable  charac- 
ter, and  do  not  come  within  the  scope  of  equity  jurisdiction.  In 
some  of  the  states,  however,  these  liens,  especially  those  charged 
upon  real  estate,  as  mechanics'  liens,  mining  liens,  and  the  like, 
are  enforced  by  ordinary  equitable  actions,  resulting  in  a  decree 
for  a  sale  and  distribution  of  the  proceeds,  identical  in  all  their 
features  with  suits  for  the  foreclosure  of  mortgages  by  judicial 
sale.^  It  is  true  that  these  liens,  being  created  by  statute,  are  legal 
in  their  essential  nature,  rather  than  equitable;  but  so  far  as  they 
are  enforced  by  equitable  actions,  they  have  added  a  peculiar  ele- 
ment to  the  equity  jurisdiction  in  several  states.  It  is  no  part  of 
my  design  to  discuss  the  rules  governing  the  existence,  scope,  and 
operation  of  such  statutory  liens;  and  the  general  reference  is 
made  to  them  in  order  to  complete  a  survej^  of  the  liens  which  be- 
long to  equity  jurisprudence  or  may  fall  under  the  equity  jurisdiction. 

'  It  has  been  the  policy  in  many  states  to  protect  in  this  manner  those 
employed  in  their  pecnliar  local  inc^iistries.  In  tlie  Nortliwestern  states, 
where  lumberinjj  is  an  important  indnstry.  a  lien  on  loss  is  given  to  those 
engaged  in  "booming,"  or  in  cutting  trees,  and  on  lumber,  to  those  engaged 
in  sawing.  In  the  mining  states  and  territories  of  the  Pacific  coast,  a  system 
of  liens  exists  on  mines,  mining-^iites.  and  mineral  products,  in  favor  of 
those  engaged  in  working,  "prospecting."  or  "locating"  tliem.  In  the  Southern 
states,  a  lien  on  the  plantations,  or  products  tlicreof.  is  given  to  those  wlio 
by  their  materials  or  services  aid  in  raising  cro])f-.  Tliere  Is  also  a  strong 
tendency,  especially  in  the  \Vestern  states,  to  protect  all  artisans,  workmen. 
h(!)orers,  etc.,  by  such  liens. 

*  The  text  is  cited  in  De  La  Vergne,  etc.,  Co.  v.  Montgomery  Brewing  Co..  46 
Fed.  829  (action  is  equitable)  :  Gilchrist  v.  Helena  Co..  of?  Fed.  708  (labor 
lien  on  railroad;  where  statute  provides  no  metliod  of  enforcing  lien,  remedy 
IS    in   equity). 


i<  l.ti^X)  EQUITY    JL"1U!?PKUU£XCE.  'ib& 


CHAPTER  EIGHTH. 

ESTATES  AND  INTERESTS  AKISING  FROM  ASSIGNMENTS. 


SECTION  I.       . 

ASSIGX:ilEXTS   OF  THINGS   IX  ACTION. 

ANALYSIS. 

§   1270.  Oiigiiuil   doctrines   at   luw    and   in  equity. 

§    1271.  Itationale   of    the    equitable    doctrine. 

§    1272.  Assignment   of   things   in    action   at   common   law. 

§   1273.  The   same;    under   statutory    legislation. 

§    1274.  Interpretation   of   this   legishrtion   as   contained    in   the   reformed 

procedure. 

§   1275.  What  things   in  action   are   or  are   not  thus   Icf/aUy   a-signable. 

§    127G.  Assignments    forbidden    by    public   policy. 

§   1277.  The  equitable  jurisdiction;   under  the  reformed  procedui-e. 

§    1278.  The    ecjuitable    jurisdiction;    under    the    common-law    procedure. 

§    1279.  Incidents    of    an    assignment. 

§  1270.  Original  Doctrines  at  Law  and  in  Equity.— By  the  an- 
cient common  law,  things  in  action,  expectancies,  possibilities,  and 
the  liivc,  were  not  assignable;  an  assignee  thereof  acquired  no  right 
which  was  recognized  by  a  court  of  law,  for  the  act  of  assignment 
was  regarded  as  against  pnblic  policy,  if  not  actnally  illegal.  Lord 
Coke  states  this  doctrine  as  one  of  the  peculiar  excellencies  of  the 
system  which  he  called  the  "perfection  of  human  wisdom,"  but 
which  was  at  his  day  in  many  respects  semi-barbarous.^  The  court 
of  chancery  from  an  earh^  day  rejected  this  rule  as  narrow  and 
even  absurd.  Acting  upon  the  principle  that  a  man  may  bind 
himself  to  do  anything  not  impossible,  and  that  he  ought  to  per- 
form his  obligations  when  not  illegal,  equity  has  always  held  that 
the  assignment  of  a  thing  in  action  for  a  valuable  consideration 
sliould  be  enforced:-  and  has  also  given  effect  to  assignments  of 
every  kind  of  future  and  contingent  interests  and  possibilities  in 
real  or  personal  property,  when  made  upon  a  valuable  considera- 

'  Lampet's    Case,    10    Coke.    4(5    b.    4Sa. 

2  Row  V.  Dawson,  1    Ves.  Sr.  331;  2  Lead.  Cas.  Eq.  4th  Am.  ed.  153. 


759  ASSIGNMENTS    OF    THINGS    IN    ACTION.  §  I'-i^J 

tion.-''  As  soon  as  the  assigned  expectancy  or  possibility  has  fallen 
into  possession,  the  assignment  will  be  enforced.* 

§  1271.  Rationale  of  the  Equitable  Doctrine.— It  followed,  there- 
fore, that  the  assignee  of  an  ordinary  thing  in  action — a  debt  or  de- 
mand arising  out  of  contract — acquired  at  once  an  equitable  own- 
ership therein,  as  far  as  it  is  possible  to  predicate  property  or  own- 
ership of  such  a  species  of  right,  while  the  assignee  of  an  expect- 
ancy, possibility,  or  contingency  acquired  at  once  a  present  equi- 
table right  over  the  future  proceeds  of  the  expectancy,  possibility, 
or  contingency  which  was  of  such  a  certain  and  fixed  nature  that 
it  was  sure  to  ripen  into  an  ordinary  equitable  property  right  over 
those  proceeds  as  soon  as  they  came  into  existence  by  a  trans- 
formation of  the  possibility  or  contingency  into  an  interest  in  pos- 
session. There  was  an  equitable  ownership  or  property  in  abey- 
ance, so  to  speak,  which  finally  changed  into  an  absolute  property 
upon  the  happening  of  the  future  event.  Equity  permitted  the 
creation  and  transfer  of  such  an  ownership,  while  the  original  com- 
mon law  rejected  every  such  notion.  At  an  early  day  this  species 
of  equitable  ownership  arising  from  assignments  prohibited  by  the 
common  law  was  the  occasion  of  an  extensive  branch  of  the  equity 
jurisdiction.  This  former  condition  has,  however,"  been  greatly 
modified,  and  the  special  jurisdiction  based  upon  it  has  become 
very  much  diminished. 

§  1272.  Assignment  of  Things  in  Action  at  Common  Law. — The 
essential  validity  of  the  assignments  of  legal  things  in  action,  and 
the  equitable  ownership  of  the  assignees  thereunder,  had  long  been 
recognized  by  the  law  courts,  which  permitted  the  assignee  suing 
in  the  name  of  the  assignor  to  have  entire  control  of  the  action  and 
the  judgment,  and  treated  him  as  the  only  person  having  an  imme- 
diate interest  in  the  recovery.^  In  all  ordinary  cases,  therefore,  of 
assignment  of  legal  things  in  action — debts,  and  the  like — the  as- 
signee had  a  complete  and  easy  remedy  at  law,  and  the  necessity 
of  a  resort  to  equity  had  ceased.^ 

§  1273.  The  Same.  Under  Statutory  Legislation.— Statutes  both 
in  England  and  in  the  United  States  have  gone  much  further,  and. 
by  allowing  the  assignee  of  things  in  action  to  sue  at  law  in  his 
own  name,  have  made  his  interest  or  ownership  to  be  legal,  and 
no  longer  equitable.     The  earliest  English  statutes  were  confined 

MVarmstrey  v.  Lady  Tanfield,  1  Ch.  Ro]).  29;  2  Lead.  Cas.  Eq.  1530;  1 
Scott  74;  Wright  v.  ^Yrioht,  1  Ves.  Sr.  400,  411;  Hobson  v.  Trevor,  2  P. 
Wnis.   101;    1   Scott  75    (the  mere  expectancy  of  an  heir  at  law). 

^Holroyd  v.  jMarshall,    10  H.  L.   Cas.   191.  Kirch.  42. 

'  :\Tastpr  V.  Miller.  4  Term.  Rep.  320.  340,  341. 

=  Hammond  v.  Messenger,  9  Sim.  327.  Ames  Trusts  59. 


§  12;5  EQUITY    JLIilSl'UUDENCi:.  760 

t(.  policies  of  insurance,  perniitting  them  to  be  legally  assigned,  so 
that  the  assignee  could  sue  at  law  in  his  own  name.^  Finally,  by 
the  supreme  court  of  judicature  act,  it  was  provided  that  debts 
and  all  other  legal  things  in  action  may  be  assigned  at  law,  if  the 
assignment  is  in  writing  and  absolute,  and  not  by  way  of  charge 
only.-  The  legislation  in  many  of  the  American  states  is  much 
broader  in  its  effects,  though  less  specific  in  its  language.  In  all  the 
states  and  territories  which  have  adopted  the  reformed  procedure, 
abolishing  the  distinction  between  legal  and  equitable  actions,  and 
introducing  one  civil  action  for  all  purposes,  it  is  provided  that 
"every  action  must  be  prosecuted  in  the  name  of  the  real  party  in 
interest,  except  as  otherwise  provided  in  this  statute."' 

§  1274.  Interpretation  of  This  Legislation  in  the  Reformed  Pro- 
cedure.— It  is  the  settled  interpretation  of  this  provision  in  all  the 
commonwealths  where  the  reformed  procedure  prevails,  that  when- 
ever a  thing  in  action  is  assignable,  the  assignee  thereof  must  sue 
upon  it  in  his  OAvn  name;  and  if  the  thing  in  action  is  itself  legal, 
hi:;  right  and  interest  under  the  assignment  have  been  made  legal. 
The  provision  itself  does  not  render  any  thing  in  action  assignable; 
it  does  not  affect  in  any  way  the  quality  of  assignability:  it  simply 
acts  upon  things  in  action  which  are  assignable,  and  if  they  are 
legal  in  their  nature,  and  if  the  assignment  is  one  which  would 
have  been  recognized  in  a  court  of  law  by  permitting  the  assignee 
to  sue  in  the  name  of  the  assignor,  then  the  interest  of  the  assignee 
is  legal. ^ 

§  1275.  What  Things  in  Action  are  or  are  not  thus  Assignable.— 
It  becomes  important,  then,  in  fixing  the  scope  of  the  equity  juris- 
diction, to  determine  what  things  in  action  may  thus  be  legally  as- 
signed. The  following  criterion  is  universally  adopted:  All  things 
in  action  which  survive  and  pass  to  the  personal  representafives  of 
a  decedent  creditor  as  assets,  or  continue  as  liabilities  against  the 
representatives  of  a  decedent  debtor,  are,  in  general,  thus  assign- 
able: all  which  do  not  thus  survive,  but  whicli  die  with  the  person 
of  the  creditor  or  of  the  debtor,  are  not  assignable.     The  first  of 

'30  &  31  Vict.,  c.   144;   31  &  32  Viet.,  c.  8G. 

"  36  &  37  Vict.,  e.  66,  see.  2.),  §  6. 

"The  exceptions  referred  to  embrace  suits  by  executors,  administrators, 
trustees  of  an  express  trust,  and  persons  in  whose  names  contracts  are  made 
for   the   benefit    of   others. 

'See  Pomeroy  on  Remedies,  sees.  12.")-138.  where  the  authorities  sustain- 
ing the  above  conclusions  are  fully  examined:  Devlin  v.  The  Mayor.  03 
X.  Y.  8.  If  the  thinq-  in  action  is  a  claim  purely  equitable  in  its  nature, 
or  if  the  assignment  is  one  which  courts  of  equity  alone  recognized,^as, 
for  example,  an  order  given  upon  a  particular  fund,  or  an  assignment  of 
a    part    of    a    single    demand, — then    the    assignee's    interest    is    still    equitable. 


761  ASSIGNMENTS    Ol'    THINGS    IN    ACTION'.  ij  I'^T? 

these  classes;  aoeording  to  the  doctrine  prevailing?  throughout  the 
United  States,  includes  all  claims  arising  from  contract  express  or 
implied,  with  certain  well-defined  exceptions;  and  those  arising 
from  torts  to  real  or  personal  property,  and  from  frauds,  deceits, 
and  other  wrongs,  whereby  an  estate,  real  or  personal,  is  injured, 
diminished,  or  damaged.  The  second  class  embraces  all  torts  to  the 
person  or  character,  where  the  injury  and  damage  are  confined  to 
the  body  and  the  feelings;  and  also  those  contracts,  often  implied, 
the  breach  of  which  produces  only  direct  injury  and  damage,  bodily 
or  mental,  to  the  person,  such  as  promises  to  marry,  injuries  done 
by  the  want  of  skill  of  a  medical  practitioner,  contrary  to  his  im- 
plied undertaking,  and  the  like;^  and  also  those  contracts,  so  lon<i  as 
ihey  are  f.reciitory,  which  stipulate  solely  for  the  special  personal 
services,  skill,  or  knoAvledge  of  a   contracting  party .- 

§  1276.  Assignments  Forbidden  by  Public  Policy. — While  large 
classes  of  things  in  action  are  thus  assignable  even  at  laAv,  there 
are  certain  species,  belonging  to  a  class  otherwise  assignable,  the 
assignment  of  which,  either  at  law  or  in  equity,  is  prohibited  from 
motives  of  public  policy.  Thus  in  England,  those  emoluments  which 
are  paid  by  the  government  to  certain  officials,  which  are  the  re- 
v.^ards  for  past  and  future  public  services,  and  which  are  at  the 
same  time  regarded  as  honorary,  or  badges  of  dignity,  cannot  be 
assigned.^  Also,  an  assignment  which  violates  the  policy  of  the 
law  against  champert}^  or  maintenance,  as  operating  merely  to 
procure  or  promote  litigation,  will  not  be  permitted  by  a  court  of 
equity,  even  though  it  may  not  amount  strictly  to  the  criminal  of- 
fense of  champerty  or  maintenance.-  For  this  reason,  tlie  assign- 
ment of  a  mere  right  of  action  to  procure  a  transaction  to  be  set 
aside  on  the  ground  of  fraiul  is  not  permitted.-^ 

§  1277.  The  Equitable  Jurisdiction — Reformed  Procedure. — The 
following  conclusions  as  to  the  equitable  jurisdiction  may  be  drawn 
from  the  foregoing  analysis.     In  England,  and  in  all  of  the  Amer- 

'Zabriskie  v.  Sniitli,  13  N.  Y.  322,  333;  64  Am.  Dec.  551;  per  Denio.  J.: 
Weller  v.  Jersey  City,  etc.,  Co.,  66  N.  J.  Eq.  11,  57  Atl.  730. 

-The  whole  subject  is  examined  at  lenafth.  with  full  analyses  of  the  cases 
arisinfij  under  the  reformed  procednre.  in  Pmncrny  on  Remedies,  sees.  144 — 
1.53,  and  cases  cited;  Devlin  v.  The  Mayor.  63  N.  Y.  8  (contract  for  street- 
cleaningr  assignable);  Criflith  v.  Tower  Pub.  Co..  (1S07)  1  Ch.  21  fao^reement 
between  author  and  publisher  not  assiornable)  ;  Bethlehem  v.  Annis,  40  X.  II. 
34.  40.  77  Am.  Dec.  700   (aarreement  to  support  not  assiornaljle) . 

'  In  this  country,  also,  the  assignment  of  the  future  salary  of  a  public 
officer  is  generally  void:  See  Holt  v.  Thurman.  Ill  Ky.  S4.  63  S.  W.  2S0.  08 
Atu.    St.   Rep.   308.   and   cases   cited. 

=  Coquillard's    Adm'r   v.    Bearss.    21    Ind.    470;    S3    Am.    Dec    362. 

'Sanborn  v.  Doe.  02  Cal.  152.  23   Pnc   105.   27   Am.   St.   Pop.   101. 


§  1-^^S  EQUITY    JLKISPKUDEXCE.  76'3 

Iciiii  states  whicli  have  adopted  the  reformed  procedure,  the  direct, 
absolute,  or  what  may  be  called  legal,  assignment  of  legal  things 
in  action  which  are  assignable  confers  on  the  assignee  a  purely 
legal  interest,  and  he  can  only  sue  in  his  own  name  by  a  civil  ac- 
tion wliich  is  to  all  intents  legal  in  its  character ;  so  that  under  these 
circumstances  there  is  no  occasion  for  the  equitable  jurisdiction. 
Where  the  thing  in  action  assigned  is  an  equitable  demand,  and 
where  the  assignment  of  even  a  legal  demand  is  equitable,  or  such 
as  the  courts  of  law  under  the  former  system  did  not  recognize,  it 
might  be  supposed  that  the  interest  of  the  assignee  would  be  equi- 
table, and  that  the  suit  upon  it  would  be  within  the  equitable  juris- 
diction. But  even  in  these  cases  the  assignee  must  sue  in  his  own 
name;  and  if  the  remedy  is  merely  a  pecuniary  judgment,  and  no 
accounting  is  necessary,  the  action  would,  in  all  its  elements  and 
features,  be  legal  rather  than  equitable.  If,  however,  an  accounting 
v.-ere  necessary,  or  if  the  demand  v/ere  of  such  a  nature  that  the 
recovery  would  depend  ui)on  the  application  of  equitable  doctrines, 
the  civil  action  of  the  assignee  would  undoubtedly  be  equitable, 
and  the  equitable  jurisdiction  of  the  court  would  be  invoked. 

§  1278.  The  Equitable  Jurisdiction — Common-law  Procedure. — 
In  those  states  which  retain  the  two  jurisdictions  and  systems  of 
procedure,  whether  each  is  administered  by  a  separate  tribunal  or 
both  are  conferred  upon  the  same  court,  the  jurisdiction  at  law 
is  complete  with  respect  to  the  class  of  assignments  first  above  de- 
scribed,— the  legal  ti'ansfer  of  a  legal  thing  in  action.  If  the  as- 
signee is  still  compelled  to  sue  in  the  name  of  his  assignor,  or  if, 
as  in  some 'states,  he  is  permitted  to  sue  in  his  own  name,  in  either 
case  the  legal  remedy  is  adequate,  and  there  is  no  ground  left  for 
tlie  jurisdiction  of  equity.  It  is  now  the  settled  rule  that  a  court 
of  equity  will  not  take  jurisdiction  of  a  suit  by  an  assignee  of  a 
legal  thing  in  action,  whenever  he  may  obtain  ample  remedy  by  an 
action  at  law  in  the  name  of  his  assignor.^  With  respect,  however, 
to  assignments  of  the  kinds  secondly  described  above,  the  transfer 
of  purel}^  equitable  demands,  or  the  purely  equitable  assignment  of 
legal  demands,  the  jurisdiction  over  the  things  in  action  so  assigned 
at  the  suit  of  the  assignee  continues  to  be  exclusively  equitable. 
As  the  law  does  not  admit  in  the  one  case  the  existence  of  a  legal 
right  or  demand,  and  in  the  other  the  existence  of  a  valid  transfer, 
courts  of  law  can  have  no  jurisdiction  to  entertain  actions  in  which 
a  recovery  must  be  based  upon  the  legal  validity  of  the  demand 


*This  rule  was  fully  settled  in  England  wliile  the  former  systems  of  courts 
and  jurisdictions  still  existed:  Hammond  v.  Messenger,  9  Sim.  327,  332, 
Ames    Trusts    59. 


'i()3  EQUITABLE   ASS<lGN.Mi:-\T   OF    A    hlSD.  §  12S?r 

or  of  the  assignment.  Tlie  ancient  jurisdiction  of  e([uity  over  the 
assignment  of  things  in  action  has  been  reduced  to  these  somewhat 
narrow  limits. 

§  1279.  Incidents  of  an  Assignment. — It  is  a  familiar  doctrine 
that  the  assignee  of  a  thing  in  action,  unless  it  be  negotiable,  takes 
it  subject  to  existing  equities.  It  is  also  the  settled  rule  in  England 
that  the  assignee  must  give  notice  to  the  debtor  part}-  or  legal  holder 
of  the  fund,  iu  order  to  establish  and  secure  his  right  of  priority 
over  other  assignees  of  the  same  demand;  but  this  rule  has  not 
been  generally  adopted  by  the  American  courts.  These  matters 
liave  already  been  discussed  in  a  previous  chapter  upon  priorities.' 


SECTION  II. 
EQUITABLE    ASSIGNMENT    OF    A    FUND    BY    ORDER    OR    OTHER\YISE. 

ANALYSIS. 

§   1280.     The  general  doctrine;  its  requisites,  scope,  operation,  and  effects. 
%   1281.     Notice    to    the    creditor-assignee,    essential. 

§  1282.     A  mere  mandate  to  a  depository  or  agent,  is  not  an  equitable 
assignment,   but  is   revocable;    an   appropriation  is  necessary. 
§   1283.     Funds   not   yet    in   existence. 
§    1284.     Operation  of  bills  of  exchange   and   checks. 

§  1280.  The  General  Doctrine — Its  Requisites,  Scope,  Operation, 
and  Effects. — It  is  an  ancient  doctrine  of  the  common  law  that 
no  action  of  contract  can  be  maintained  unless  there  is  privity  of 
contract  between  the  plaintiff  and  the  defendant.^  It  follows  that 
if  B  is  indebted  to  A,  or  has  in  his  hands  a  fund  belonging  to  A, 
and  A  assigns  such  debt  or  fund  to  C,  or  gives  him  an  order  for 
it  upon  B,  C  can  maintain  no  action  at  law  against  B  to  recover  the 
amount,  unless  B  has  assented  to  the  appropriation  and  promised 
to  pay  the  money;  and  the  action  in  such  case  will  not  be  based 
upon  any  property  or  interest  in  the  fund  acquired  by  C  through 
the  assignment  or  order,  but  upon  B's  express  or  implied  promise. 
The  doctrine  of  equity  is  very  different.  Equity  recognizes  an 
interest  in  the  fund,  in  the  natui-e  of  an  equitable  property,  obtained 

■■As  to  notice  given  to  the  debtor,  see  §f  094-702:  as  to  assignments 
being  subject  to  equities  in  favor  of  tlie  debtor,  sec  §§  70.3-706;  equities 
in   favor   of  third   persons:      §§  707-715. 

^This  extremely  technical  rule  has  undoubtedly  yielded  somewhat  to  the 
influence  of  equitable  notions,  so  that  in  most  of  the  states  an  action  at  law 
may  lie  maintained  by  A  upon  a  promise  made  for  his  benefit  to  B,  from  whom 
alone  the  consideration  moves;  but  this  is  opposed  to  the  original  theories  oi 
the   common   law. 


§  1280  EQUITY    JUHlSPliLUKNCE.  7G4r 

through  the  assignment,  or  the  order  which  operates  as  an  avssign- 
ment,  and  permits  such  interest  to  be  enforced  by  an  action,  even 
though  the  debtor  or  depositary  has  not  assented  to  the  transfer.- 
Tt  is  an  established  doctrine  that  an  equitable  assignment  of  a 
specific  fimd  in  the  hands  of  a  third  person  creates  an  equitable  pro- 
perty in  such  fund.  If,  therefore,  A  has  a  specific  fund  in  the 
luuids  of  B,  or  in  other  words,  B,  as  a  depositary  or  otherwise,  holds 
a  specific  sum  of  monej^  which  he  is  bound  to  pay  to  A,  and  if  A 
agrees  with  C  that  the  money  shall  be  paid  to  C,  or  assigns  it  to 
C,  or  gives  to  C  an  order  upon  B  for  the  money,  the  agreement, 
assignment,  or  order  creates  an  equital)le  interest  or  property  in 
the  fund  in  favor  of  the  assignee,  C,  and  it  is  not  necessary  that 
B  should  consent  or  promise  to  hold  it  or  pay  it  to  such  assignee.'' 
In  order  that  the  doctrine  may  apply,  and  that  there  may  be  an 
e(|uitable  assignment  creating  an  equitable  property,  there  must 
1)<>  a  specific  fund,  sum  of  money,  or  debt,  actually  existing  or  to 
become  so  in  futuro,  upon  which  the  assignment  may  operate,  and 
the  agreement,  direction  for  payment,  or  order,  must  be,  in  effect. 
an  assignment  of  that  fund  or  of  some  definite. portion  of  it.  The 
sure  ci'iterion  is,  whether  the  order  or  direction  to  the  drawee,  if 
assented  to  by  hira,  would  create  an  absolute  personal  indebtedness 
payable  by  him  at  all  events,  or  whether  it  creates  an  obligation 
only  to  make  payment  out  of  the  particular  designated  fund.* 
Tlie  agreement,  direction,  or  order  being  treated  in  equity  as  an 
assignment,  it  is  not  necessary  that  the  entire  fund  or  debt  should 
be  assigned;  the  same  doctrine  applies  to  an  equitable  assignment 
of  any  definite  part  of  a  particular  fund."'     The  doctrine  that  the 

-  Some  cases  and  books  speak  of  tlic  interest  as  merely  an  equitable  lien  or 
charge.  That  it  is  more  than  a  lien,  and  is  an  equitable  property,  is  plain 
from  the  remedy  allowed.  An  equitable  lien  is  ]iever  enforced  by  a  suit  to 
o])tain  possession,  much  less  dominion  over  tlie  thing:  the  remedy  is,  at 
most,  a  sale  of  the  thing,  so  that  its  proceeds  may  be  applied  upon  the  obli- 
gation secuied.  In  this  case,  however,  the  assignee  recovers  possession  and 
dominion  of  the  fund  as  his  own.  The  only  equitable  feature  of  the  trans- 
action  is,   in   fact,   the   mode  of   transfer. 

'Brill  V.  Tuttle,  81  N.  Y.  454,  37  Am.  Rep.  31.5;  Row  v.  Dawson,  1  Ves.  Sr. 
:i:n,  2  Lead.  Cas.  Eq.  4th  Am.  Ed.  1531;  Lowery  v.  Steward,  25  N.  Y.  23!l, 
82  Am.  Dec.  346:  Wheatley  v.  Strobe,  12  Cal.  92;  73  Am.  Dec.  522:  McDaniel 
A-.  :\Iaxwell,  21  Oreg.  202;  27  Pac.  952;  2S  Am.  St.  740;  Harrison  v.  Wright^ 
100  Ind.   515,   50   Am.   Rep.   805. 

'Brill  V.  Tuttle,  81  N.  Y.  454,  457;   37  Am.   Rep.  515. 

'James  v.  Newton,  142  Mass.  366,  56  Am.  Rep.  692,  S  X.  E.  122:  Harris 
County  V.  Campbell,  68  Tex.  22,  35  S.  W.  243,  2  Am.  St.  Rep.  467.  Some 
American  courts  seem  to  have  been  troubled  with  the  common-law  rule  which, 
forbids  the  assignment  of  a  part  of  a  debt,  but  the  reasons  iov  this  rule  at  law 
have  no  application  whatever  in  equity.  The  main  reason  for  the  legal  rule 
is,    that    the    debtor    should    not    be    harassed    with    several    different    suits    to 


765  EQUITAKLK   A8SlG.\.Mi:XT   OF    A    FUND.  §  r.^82 

equitcible  assignee  obtains,  not  simply  a  right  of  action  ayainst  the 
depositary,  mandatary,  or  debtor  but  an  equitable  property  in  the 
fund  itself,  is  carried  out  into  all  of  its  legitinuite  consequences. 
Thus  the  assignee  may  not  only  recover  the  money  from  the  original 
depositary,  the  drawee,  but  ma}^  pursue  it  or  its  proceeds  under 
any  change  of  form,  as  loiuj  as  it  can  he  certainly  identified,  into  the 
liands  of  third  persons  who  have  acquired  possession  of  it  from  the 
depositary  as  volunteers,  or  with  notice  of  the  assignee's  prior 
right.  The  fund  in  this  respect  resembles  a  fund  impressed  with  a 
trust. 

§  1281.  Notice  to  the  Creditor-Assignee  Essential. — Although 
whenever  a  debtor,  in  the  manner  above  described,  makes  to  his 
creditor  an  equitable  assignment  of  a  specific  fund  or  debt  in  the 
hands  of  or  owing  by  a  third  person,  the  assent  of  such  third  perso)t 
is  not  requisite  to  the  effect  of  the  transfer  in  equity,  yet  the 
assignment,  appropriation,  direction,  or  order  is  not  absolute,  but 
may  be  revoked  by  the  debtor-assignor  at  an,y  time  before  the 
creditor-assignee  has  been  notified  of  it,  and  has  expressly  or  im- 
pliedly assented  thereto.  In  snch  a  case  notice  to  and  assent  by  the 
creditor-assignee  are  essential  to  an  absolnte  assignment. 

§  1282.  A  Mere  Mandate  to  an  Agent  or  Depositary  is  not  an 
Assignment,  but  is  Revokable. — In  all  cases,  even  when  the  assignee 
Avas  not  a  creditor  of  the  assignor,  the  order  must  be  delivered  to 
the  intended  payee,  or  he  must  be  notified  of  it  by  the  dn»w<'i''s  pi'"- 
curement,  in  order  that  it  may  operate  as  an  equitable  assignment. 
A  mere  letter,  communication,  or  other  mandate  to  the  agent,  de- 
positary, or  debtor,  directing  him  to  pay  the  fund  to  a  designated 
person,  will  not  of  itself  operate  as  an  assignment,  but  it  may  be 
withdrawn  or  revoked  at  any  time  before  the  arrangement  is  com- 
pleted, by  information  given  to  the  intended  payee  by  or  on  behalf 
of  the  drawer.^  What  shall  amount  to  the  present  appropriation 
Avhich  constitutes  an  equitable  assignment  is  a  question  of  intention, 
to  be  gathered  from  all  the  language,  construed  in  the  light  of  the 
surrounding  circumstances.     For  example,  while  it  is  not  essential 

recovor  parts  of  one  sinqle  oljli^ation.  In  equity  no  such  t'onse(]utMic('  could 
result.  If  parts  of  a  demand  are  assigned  to  different  persons,  the  riylils 
of  all  the  assignees  must  be  settled  in  one  suit;  in  a  suit  by  any  one  assignee, 
not  only  the  debtor  and  the  assignor,  but  all  the  other  assignees,  mu.st  be 
made  ])arties,  so  that  the  one  decree  may  determine  the  duty  of  the  debtor 
towards  each  claimant.  There  is  no  greater  nor  more  unnecessary  source  of 
error  than  the  importing  le(j(tl  notions  as  to  parties  and  actions  into  the 
discussion  of  equitable  doctrines:  See  for  tlie  legal  lule,  Mandeville  v. 
Welch.   5   Wheat.  277.  2R() :    ^^   T..   Ed.   87. 

M'.uni  V.  Carvalho.  7  Sim.  10!);  4  Mylne  &  C.  GOO;  Carvalho  V.  Burn.  4 
Barn.  &  Adol.  382  j    1  Ad.  &  E.  883. 


§  1284  EQUITY    JUItlSritUDENCE.  766 

ti>  the  existence  of  an  equitable  assignment  of  a  fund  that  the 
debtor,  agent,  or  depositary  should  be  expressly  directed  to  pay  over 
liie  money  to  the  assignee,  the  absence  of  such  a  direction  may  tend 
to  show  an  intention  not  to  transfer  a  present  interest  in  the  fund, 
but  that  the  arrangement  is  wholly  executory  and  prospeetive.- 

§  1283.  Doctrine  Extends  to  a  Fund  not  yet  in  Existence. — Tlie 
e<|uitable  doctrine  with  re-speet  to  the  assignment  of  property  to  be 
acquired  in  future  is  extended  to  this  species  of  equitable  transfer. 
The  fund  need  not  be  actually  in  being;  if  it  exists  potentially. — 
that  is,  if  it  will  in  due  course  of  things  arise  from  a  contract  or 
arrangement  already  made  or  entered  into  when  the  order  is 
given, — the  order  will  operate  as  an  equitable  assignment  of  such 
fund  as  soon  as  it  is  acquired,  and  will  create  an  interest  in  it 
which  a  court  of  equity  will  enforce.^ 

§  1284.  Bills  of  Exchange  and  Checks  not,  in  General,  Assign- 
ments.— An  ordinary  bill  of  exchange,  or  draft,  drawn  generally, 
and  not  upon  any  particular  fund,  whether  aceeptecl  or  not  by  the 
drawee,  does  not  operate  as  an  equitable  assignment.  Its  operation 
is  not  changed  even  when  funds  have  been  placed  in  the  drawee's 
hands  as  a  means  of  payment;  for  the  drawee  may  apply  these 
fu.nds  to  another  use,  and  although  this  act  might  violate  his  duty 
to  the  drawer,  the  payee  would  obtain  no  interest  in  or  claim  upon 
the  specific  fund.^  According  to  the  great  preponderance  of  au- 
thority, a  check  is,  in  this  respect,  a  bill  of  exchange,  and  does  not 
act  as  an  equitable  assignment  of  a  portion  of  the  drawer's  deposit 
equal  in  amount  to  the  face  of  the  check.-  There  are  cases,  how- 
ever, which  hold  that,  under  the  circumstances  in  which  it  is 
ordinarily  given,  being  drawn  against  an  actual  deposit,  and  not 
expected  to  be  paid  unless  a  sufficient  amount  stands  to  the  credit 
of  the  drawer,  a  check  is  to  all  intents  an  order  upon  a  particular 

^See   Rodick   v.   Caiidtll.    1   De   (4ex.   :\L   &    (i.   70:5,    778. 

'  For  example,  an  order  for  the  proceeds  of  yoods  which  are  about  to  be 
sold  by  an  agent  of  the  drawer  under  an  arrangement  already  made;  an 
order  by  an  employee  upon  th.e  employer  whom  he  has  agreed  to  serve,  direct- 
ing payment  of  future  wages  to  be  enmed;  an  oi'dcr  by  a  contractor  for  future 
payments  to  become  due,  and  the  like.  Tlie  fund  in  all  such  cases  is  par- 
ticular and  definite,  although  only  potential:  Ruple  v.  Bindley,  91  Pa.  St. 
29G;  Shep.  219;  Merchants  &  M.  N.  Bank  v.  Barnes,  18  Mont,  335,  48  Pac. 
218,   .56  Am.   St.   Rep.   586,   47   L.   R.  A.   737. 

'Holbrook  v.  Payne,  151  Mass.  383,  24  X.  E.  210,  21  Am.  St.  Rep.  450:  for 
instance  of  draft  upon  a  particular  fund,  see  Lowery  v.  Steward,  25  N.  Y. 
239,  82  Am.  Dec.   346. 

-Aetna  Xat.  Bank  v.  Fourth  Xat.  Bank,  46  X.  Y.  82,  87.  7  Am.  Rep.  314; 
Fourth  St.  Xat.  Bank  v.  Yardley,  1G5  U.  S.  634,  17  Sup.  Ct.  439,  41  L.  ed. 
855 ;  Cincinnati,  H.  &  D.  R.  Co.  v.  Bank,  54  Ohio  St.  GO,  42  N.  E.  700,  56  Am. 
St.   Rep.   700,   31   L.   R.  A.   G53. 


7G?  ASSIUX.AIENT     OF     FUTUIiE     INTERESTS.  §  l-So 

j-'und  within  the  meaning  of  the  eciiiitable  rule,  and  assigns  a  portion 
of  that  fund  to  the  payee  equal  in  amount  to  its  face;'  A  cheek 
nui}'  undoubtedly  operate  in  this  manner  as  an  eciuitable  assigimient 
when  it  is  so  drawn  as  to  show  an  unmistakalile  intention  of  th(.' 
drawer  to  transfer  his  exact  deposit  in  the  bank  to  the  payee.* 


SECTION  III. 

ASSIGNMENT    OF    POSSIBILITIES.    EXPECTANCIES,    AND    PROPERTY 
TO  BE   ACQUIRED   IN  FUTURE. 

ANALYSIS. 

§    1285.     Eqiiital)lo    jurisdiction    under   modern    leoislation. 

§  12SG.  Essential  elements  and  grades  of  contingencies,  expectancies, 
and    possibilities. 

§   1287.     Assignment   of   possibilities. 

§  1288.  Assignment  of  personal  property  to  be  acquired  in  the  future; 
rationale   of  the   doctrine;    Holroyd   v.   Marshall. 

§   1289.     Assignment  of  future  cargo  or  freight. 

§  1290.  Requisites  of  an  assignment  of  property  to  be  acquired  in  the 
future. 

§  1291.  Extent  of  the  doctrine;  to  ^vhat  property  and  persons  it  ap- 
plies. 

§  1285.    Equitable    Jurisdiction    under    Modern    Legislation. — 

]^.Iodern  English  statute.s  have  so  far  changed  the  common  laAV  as  to 
permit  the  assignment  at  law  of  contingent  and  future  interests, 
expectancies,  and  possibilities  coupled  with  an  interest  in  real 
estate.^  The  American  legislation  has  generally  been  broader,  and 
authorizes  the  assignment  at  laAV  of  such  future  expectancies  and 
possibilities,  when  coupled  with  an  interest,  wdiether  connected 
with  real  or  with  personal  estate.  Neither  the  English  nor  the 
American  statutes  allow  the  legal  assignment  of  mere  naked  ]io>- 
sibilities  or  expectancies  not  coupled  with  an  interest.  The 
.iu.risdiction  of  equity  continues  to  be  exclusive  over  all  other 
assignments  of  contingent,  future,  expectant  interests  and  possi- 
})i!ities  not  embraced  within  this  legislation. 

§  1286.  Essential  Elements  and  Grades  of  Contingencies,  Expec- 
tancies, and  Possibilities. — In  determining  the  extent  and  limits  of 
the  tw^o  juri.sdietions,  legal  and  eciuitable,  it  is  important  to  deter- 
mine   the    essential    elements    and    different    grades    of    contingent 

MVyman  v.  Fort  Dearborn  Nat.  Bank,  181  111.  279.  M  N.  E.  94(i.  72  Am.  St. 
Rep.  259;  Raesser  v.  National  Exchange  Bank.  112  Wis.  591,  88  N.  W.  618, 
B8   Am.   St.   Rep.   979. 

MTarrisnn    v.    Wright,    100    Ind.    .515,    50   Am.    lU^p.    805. 

'8    &    9    Vict.,    c.    lOG,    sec.    G. 


§  1287  EQUITY    JUIIISPIJUDENCE.  7GS 

interests,  expectancies,  and  possibilities.  It  should  be  carefully 
observed  at  the  outset  that  they  do  not  include  future  estates  which 
are  vested.  A  vested  remainder  is  as  truly  a  present  fixed  property 
or  ownership  as  is  an  estate  in  possession.  There  may  be  interests 
or  so-called  estates  in  land  or  chattels,  based  upon  some  existing- 
limitation,  conveyance,  or  will,  which  are  future  and  contingent,  as 
depending  upon  the  happening  of  some  uncertain  event,  or  limited 
to  some  uncertain  person,  but  which  are  nevertheless  interests,  and 
not  mere  hopes  or  expectancies  without  any  existing  legal  founda- 
tion. The  ordinary  contingent  remainders,  executory  devises,  con- 
ditional limitations,  and  the  like  are  illustrations.  Secondly,  a 
lower  grade  of  future  interests  may  be  called  the  potentialitij  of  ac- 
quiring future  property  from  the  performance  of  some  agreement 
or  arrangement  entered  into,  but  which  is  still  executory.^  Of 
course,  the  mere  hope  of  acquiring  future  property  without  any 
{tresent  source  from  which  it  maj'  be  obtained  is  neither  an  interest 
nor  right,  nor  anything  which  has  value  or  can  be  made  the  subject 
ot  legal  relations.  But  when  a  party  has  entered  into  a  contract 
or  arrangement  by  the  ordinary  and  legitimate  and  natural  opera- 
tion of  which  he  will  acquire  property,  his  existing  right  thereunder 
is  certainly  not  a  mere  naked  hope;  it  is  a  possibility  of  acquiring 
property  coupled  with  a  legal  interest  in  the  contract.  The  cargo 
to  be  obtained  or  the  freight  to  be  earned  by  a  ship  on  a  voyage 
already  contracted  for,  the  wages  to  be  earned  under  an  existing 
enq^Ioyment,  the  payment  to  become  due  under  an  existing  building 
contract,  are  familiar  examples.  Finally,  there  is  a  mere  expect- 
ancy arising  from  some  social  or  moral  relation,  and  not  based 
upon  any  limitation,  trust,  contract,  or  other  legal  relation,  such, 
as  the  hope  which  an  heir  apparent  or  presumptive  has  of  inheriting 
liis  ancestor's  estate,  or  the  hope  of  a  bequest  under  the  will  of 
i\  living  friend. 

§  1287.  Assignment  of  Possibilities.  —  Under  the  statutes  de- 
scribed  in  a  preceding  paragraph,  all  future  contingent  interests 
in  things  real  or  personal,  and  also  all  possibilities,  coupled  iviih  nti 
ihierest,  of  acquiring  property,  real  or  personal,  may  be  granted  or 
assigned  at  law,  so  that  the  grantee  or  assignee  acquires  a  legal 
right  or  interest,  the  enforcement  or  protection  of  which  comes 
within  the  jurisdiction  of  the  law.  So  far  as  this  legislation  has 
not  been  adopted,  such  interests  and  rights  are  assignable  only  in 

^  The  phrase  "potential  existence"  has  a  specific  and  teclinical  meaninij. 
in  formulating  the  general  doctrine  of  the  law  concerning  the  sale  of  personal 
property  not  yet  having  an  actual  existence:  See  ante.  §  1230.  As  used  in 
the  text  above,  the  word  "potentiality"  is  taken  in  a  more  general  sense; 
and   in   this  signification   it  has  been   employed  in   several   modern    decisions. 


7G9  ASSIGXMKXT    OF     I'UTUIJK     i  XTKKKSTS.  i5  1>!88 

eiiuitv;  and  fiirtlierniore,  possibilities  not  coupled  with  an  interest, 
— mere  possibilities  or  expectancies, — which  are  not  embraced  with- 
in these  statutes,  are,  according  to  the  general  course  of  decision, 
assignable  in  equity  for  a  valuable  consideration;  and  equity  will 
enforce  the  assignment  when  the  possibility  or  expectancy  has 
changed  into  a  vested  interest  or  possession.^  The  explanation  is 
fcometiraes  given  that  the  assignment  operates  as  a  contract  by  the 
assignor  to  convey  the  legal  estate  or  interest  when  it  vests  in  him,  and 
that  equity  will  specifically  enforce  such  contract  by  decreeing  a  con- 
veyance. 

§  1288.  Assignment  of  Personal  Property  to  be  Acquired  in  the 
Future. — Rationale  of  the  Doctrine. — A  particular  instance  of  this 
doctrine  is  that  which  deals  with  tlie  assignment  of  property  to  be 
acquired  in  the  future.  I  have  already  referred  to  this  subject  in 
one  of  its  phases, — the  equitable  lien  created  by  contract  upon 
such  property.^  It  is  elementary,  that  a  contract  for  the  sale  of 
chattels  Avhich  the  vendor  does  not  own  wall  not  take  effect  upon 
the  goods,  when  subsequently  acquired,  so  as  to  pass  a  legal  prop- 
erty in  them  to  the  purchaser,  without  some  new  act  of  the  vendor 
after  the  property  is  acquired.-  The  doctrine  of  equity  is  dift'erent. 
A  sale,  assignment,  or  mortgage,  for  a  valuable  consideration,  of 
cliattels  or  other  personal  property  to  be  acquired  at  a  future  time, 
operates  as  an  equitable  assignment,  and  vests  an  equitable  owner- 
ship of  the  articles  in  the  purchaser  or  mortgagee  as  soon  as  they 
are  acquired  by  the  vendor  or  mortgagor,  without  any  further  act 
<>n  the  part  of  either;  and  this  ownership  a  court  of  equity  will 
protect  and  maintain  at  the  suit  of  the  equitable  assignee."  It  is 
sometimes  said  that  the  sale,  assignment,  or  mortgage,  under  these 
circumstances,  operates  in  equity  as  a  contract,  which  a  court  of 
equity  will  specifically  enforce  by  decreeing  a  legal  conveyance  and 
delivery  of  the  property  to  the  purchaser  or  mortgagee,  when  it  is 
subsequently  acquired  by  the  vendor  or  mortgagor.     This  view  is 

MVarmstrej  v.  Lady  Tanfield,  1  Ch.  Kep.  2!J,  2  Lead.  Cas.  Eq..  4th  Am.  ed.. 
1530,  1559,  1605,  1  Scott  74.  The  expectancy  of  an  heir  to  the  estate  of  liis 
ancestor:  Hobson  v.  Trevor,  2  P.  Wms.  191,  1  Scott  75;  In  re  Gareelon.  104 
C'al.  570,  38  Pac.  414,  43  Am.  St.  Rep.  134,  32  L.  E.  A.  595,  1  Scott  77. 
The  interest  which  one  may  take  under  tlie  will  of  another  who  is  still  livini;: 
In  re  Wilson's  Estate,  2  Pa.  St.  325.  See  also  Bayler  v.  Conun.  40  Pa.  Si. 
37,  80  Am.  Dee.  551;   Shep.  217:  Rnple  v.  Bindley,  91  Pa.  St.  290 :   She]).  21'.r. 

^See  ante,  §    1236. 

=  yioody  V.  Wright,  13  Met.  17,  32.  46  Am.  Dee.  706;  Kirch  54.  Chattel 
mortgage  on  crops  not  sown,  held  void  in  Rochester  Distilling  Co.  v.  Rasoy. 
142  N.  y.  570,  37  X.  E.  632.  40  Am.  St.  Rep.  637.  With  reference  to  the 
excepted  case  of  chattels  having  a  "potential"  existence,  see  ante,  note  under 
§    12.36. 

^Holroyd  v.  Marshall.   10  IT.  L.  Cas.   101,  Kirch.  42;   Smithurst  v.   Edmunds, 

14  N.  .T.   Eq.  408,  KircH.  61. 
49 


§  1289  EQUITY    JUniSPRUDEXCE.  1110 

certainly  supported  by  the  very  high  authority  of  most  able  judges, 
such  as  Lord  Westbury,  and  it  is  undoubtedly  true  in  part.  In 
my  opinion,  however,  it  fails  to  wholly  explain  the  equitable  doc- 
trine and  jurisdiction,  since  transfers  of  personal  property  to  be 
acquired  in  future  are  constantly  enforced  under  the  operation  of 
this  doctrine  where  a  court  of  equity  would  hardly  have  decreed 
the  specilic  performance  of  the  contract  if  it  had  been  confined  to 
property  then  in  the  ownership  and  possession  of  the  vendor  or  as- 
signor/ In  other  words,  the  doctrine  of  equitable  assignment  of 
property  to  be  acquired  in  future  is  much  broader  than  the  juris- 
diction to  compel  the  specific  performance  of  contracts.  In  truth, 
although  a  sale  or  mortgage  of  propertv^  to  be  acquired  in  future 
does  not  operate  as  an  immediate  alienation  at  law,  it  operates  as' 
an  equitable  assignment  of  the  present  possiJjility,  which  changes 
into  an  assignment  of  the  equitable  oiouership  as  soon  as  the  prop- 
erty is  acfpiired  by  the  vendor  or  mortgagor ;  and  because  this  own- 
ership thus  transferred  to  the  assignee  is  e(iuitable,  and  not  legal, 
the  jurisdiction  by  Avhich  the  right  of  the  assignee  is  enforced,  and 
is  turned  into  a  legal  property,  accompanied  by  the  possession,  must 
be  exclusively  equitable;  a  court  of  law  has  no  jurisdiction  to 
enforce  a  right  which  is  purely  equitable.  This,  in  my  opinion,  is 
the  onlj^  correct -and  sufficient  rationale  of  one  of  the  most  dis- 
tinctively equitable  doctrines  in  the  whole  scope  of  the  equity  jiu"is- 
prudence. 

§  1289.  Assignment  of  Future  Cargo  or  Freig'ht. — A  particular 
instance  of  non-existing  property  to  be  acquired  in  future  which 
may  be  equitably  assigned  ii-:;  the  future  cargo  to  be  obtained,  or 
!  he  future  freight  to  be  earned,  by  a  ship  during  an  existing  voy- 
age, or  during  a  contemplated  voyage  on  which  she  is  about  to 
depart.  If  a  charter-party  or  other  form  of  agreement  has  already 
been  entered  into  for  th.e  contemplated  voyage,  the  potentiality  of 
obtaining  a  cargo  or  of  earning  freight  seems  to  be  a  possibility 
coupled  with  an  interest,  and  not  a  bare  expectancy;  and  as  such 
it  is  probably  assignable  even  at  law  under  statutes  and  decisions 
of  many  states.  Whatever  may  be  the  rule  at  law,  it  is  well  settled 
tliat  such  possibility  is  assignable  in  equity; 'that  an  equitable  own- 
ership vests  in  the  assignee  as  fast  as  the  cargo  is  obtained  or  the 
freight  is  earned;  and  that  his  interest  or  ownership  will  be  pro- 
tected and  enforced  by  a  court  of  equity.^  In  accordance  WMth 
this  doctrine,  it  has  been  held  that  a  mortgage  of  a  railroad  and  its 
franchises  operates   as   an   equitable    assignment   of   the   rolling   stock, 

■•The    Uipory    announced    by    Lord    Westbuiy    in    Tlolioyd    v.    ^Marshall,    siipia, 
-was    also    criticised    in    Tailby    v.    Otiicia!    Pa'ccivcv.    L.    R.    13    App.    Cas.    523. 
'MitchnM    v.    \A  inslow,    2    Story.    GrJO,    Fed.    Las.    No.    <),(;7J. 


1M  ASSIGN  JJKXT    OF     FUTURE     IXTHKKSTS.  §1290 

— locomotives,  cars,  and  the  like, — which  are  acquired  or  niaiiut'ac- 
turcd  by  the  company  after  the  execution  of  the  instrument,  and 
i)as.ses  an  equitable  owuersliip  in  or  lien  on  such  articles  to  the 
mortgagee.  Other  eases  take  a  diii'erent  view,  and  hold  that  the 
rolling  stock  are  fixtures,  and  become  part  of  the  realty  as  soon 
as  acquired,  and  that  being  so  annexed  to  the  soil,  the  legal  title 
thereto  is  vested  in  the  mortgagee,  or  that  the  lien  of  the  mortgage 
extends  to  them.'  Other  illustrations  of  the  doctrine  as  applied 
to  particular  transactions  are  given  in  the  foot-note.^ 

§  1290.  Requisites  of  an  Assignment  of  Property  to  be  Acquired 
in  the  Future. — It  has  been  assumed  through  all  the  foregoing  dis- 
cussion that  the  instrument  dues  amount  to  a  sale,  assignment,  or 
mortgage  of  future-acquired  property;  but  it  should  be  carefully 
observed  that  every  sale  or  mortgage  dealing  with  future  property 
tioes  not  necessarily  have  that  effect;  there  is  a  plain  distinction 
between  an  assignment  of  property  to  be  acquired  in  future  and  a 
mere  power  to  deal  wath  such  property.  In  order  to  create  an 
ecjuitable  assignment,  and  thus  let  in  the  operation  of  the  equitable 
doctrine,  there  must  be  on  the  face  of  the  instrument  expressly,  or 
collected  from  its  provisions  by  necessary  implication,  language  of 
present  transfer  directly  applying  to  the  future  as  well  as  to  the 
existing  property,  or  .else  language  importing  a  present  conlract  or 
agreement  between  the  parties  to  sell  or  assign  the  future  propert}', 
or  that  the  security  of  the  mortgage  should  immediately  attach  to 
the  future  property,  as  the  case  may  be.  Where  an  assignment  of 
existing  chattels  by  way  of  mortgage  contains  a  provision  which 
simply  amounts  to  an  authority  or  license  to  the  mortgagee  to  take 
possession  of  or  to  enter  and  seize  after-acquired  property,  this  does 
not  operate  as  an  equitable  assignment  of  the  after-acquired  pro- 
perty, nor  create  in  the  mortgagee  any  present  equitable  interest 
in  such  property.  It  creates,  at  most,  only  a  power;  and  a  power 
is  veiy  different  from  an  interest, — no  interest  in  the  property 
arises  until  the  power  has  been  exercised.^ 

^:Moriill  V.  Xoyes,  oG  :\Ie.  4.38,  471,  i)0  Am.  Dee.  48G,  Kiixli.  !)2 ;  Piercfi 
V.  Emery,   32  X.  H.  484,   Kircli.   SO. 

•''In  some  of  these  instances  the  assignments  are  evidentlj  valid  at  Uiw: 
Assignments  of  payments  to  become  due  from  tlic  performance  of  an  exist- 
ing contract:  Ruple  v.  liindley,  91  Pa.  tSt.  296,  ISheii.  219.  Assignment  of 
future  wages  under  existing  contract  of  employment:  Mallin  v.  VVenhaui, 
209  111.  252,  101  Am.  St.  Rep.  23:^..  70  X.  K.  5(i4.  See.  also,  Tailby  v,  Ofticial 
Receiver,  13  App.  Cas.  523,  Kii-cli.  100  (assignment  of  future  book-debts, 
though  not  limited  to  book-debts  in  any  particular  business,  valid)  ;  Collins' 
Ajjpeal,  107  Pa.  St.  590,  52  Am.  Rep.  474  (pledge  of  interest  in  a  partner- 
.ship    to    be    subsequenlly     fnvnicd.    valid). 

'  Eeeve   v.    ^Yhitmore,    4    Uc;   (W\,   J.   &    S.    1,    lG-18,    per    Lord    W'estbury. 


§    1291  EQUITY    JUKISPKUDEIfCE,  772 

§  1291.  Extent  of  the  Doctrine— To  What  Property  and  Persons 
It  Applies. — The  general  doctrine  concerning  sales  or  mortgages 
of  after-acquired  property  leads  to  the  further  conclusion,  that 
when  chattels  which  have  been  mortgaged  or  assigned  as  security 
are  sold  or  exchanged  by  the  owner,  the  lien  upon  the  original 
articles  will  extend  to  the  resulting  fund  or  the  substituted  goods; 
and  this  lien  will  be  valid  in  equity,  not  only  against  the  mortgagee, 
but  also  against  any  person  claiming  title  to  such  fund  or  goods 
under  him  as  a  volunteer.  According  to  the  general  doctrine  of 
equity  established  beyond  any  doubt  by  the  highest  judicial  author- 
ity, the  equitable  assignment  or  the  equitable  lien  upon  property 
to  be  acquired  in  the  future  is  valid  and  enforceable,  not  only 
against  the  contracting  party  himself,  but  also  against  subsequent 
judgment  creditors,  assignees  in  bankruptcy,  and  all  other  volun- 
teers holding  or  claiming  under  him,  and  against  subsequent  pur- 
chasers from  him  with  notice  of  the  assignment  or  lien.^  This  oper- 
ation of  the  equitable  doctrine  as  against  other  persons  than 
the  immediate  parties  is,  however,  very  much  restricted  and  limited 
in  most  of  the  states  by  statutes.^  The  doctrine  of  equitable  liens 
resulting  from  executory  contracts,  and  that  of  equitable  assign- 
ment of  non-existing  property,  constitute  two  of  the  most  remark- 
able and  distinctive  features  of  the  equity  jurisprudence.  The 
particular  rules  which  they  involve  are  all  drawn  from  the  funda- 
mental maxims  or  principles  of  equity  ;  they  exhibit  in  the  most 
striking  manner  the  opposing  theories  and  methods  of  equity  and 
of  the  law. ... 

'See   ante,   cases    cited   under    §§    1236,    1288. 

-  The  statutes  referred  to  are  those  concerning  transfers  and  mortgages 
made  with  intent  to  hinder,  delay,  or  defraud  subsequent  creditors  and  pur- 
chasers, and  those  concerning  tiie  filing  or  recording  of  chattel  mortgages. 
The  decisions  giving  a  construction  to  this  legislation  have  virtually  abrogated 
the  equitable  doctrine  in  its  application  to  subsequent  creditors  and  pur- 
chasers. For  example,  in  many  states  a  chattel  mortgage  which  purports 
to  cover  future-acquired  goods  in  place  of  those  which  have  been  sold,  and 
which  thus  expressly  or  impliedly  permits  the  mortgagor  to  sell  the  original 
chattels  embraced  in  the  instrument,  while  the  lien  is  extended  to  the  newly 
acquired  articles,  is  absolutely  void  as  against  subsequent  creditors  of  the 
mortgagor.  This  statutory  system  and  the  rules  created  by  it  belong,  how- 
ever, to  the  domain  of  the  law,  rather  than  to  equity. 


DOCTHINK    CONCl-li.NJ.Nti    CONTKACTS.  ^  l'i9?. 


CHAPTER   NINTH. 

CONTRACTS  IN  EQUITY. 


SECTION  I. 

GENEPxAL  DOCTRINE  COXCERXIKG  CONTRACTS. 

ANALYSIS. 

§  1292.  Object    of    this    chapter. 

§  1293.  What   constitutes   a    contract. 

§  1294.  Equitable    contract    by    representations    and    acts. 

§  1295.  Effects  of  a  contract  in  equity;   covenant  creating  an  equitable 

servitude. 

§  129G.  Effects    of    contracts    in    general. 

§  1297.  Enforcement    of    contracts    in    equity. 

§  1293.  What  Constitutes  a  Contract.— Very  little  need  he  said 
under  this  head.  The  essential  elements  of  a  contract  are  the  same 
in  eqnity  and  at  law.  In  general,  the  same  rules  prevail  in  botli 
jurisdictions  as  to  ])arties  and  their  capacity  to  contract,  as  to  con- 
sideration, and  as  to  the  assent  or  aggregatio  mentitim.  In  equity, 
as  Avell  as  at  law,  "an  agreement  is  the  result  of  the  mutual  assent 
of  two  parties  to  certain  terms,  and  if  it  be  clear  that  there  is  no 
consensus,  what  may  have  been  written  or  said  becomes  imma- 
tei'ial."^  To  this  general  agreement  between  the  equitable  and 
the  legal  rules  there  is  one  important  exception  and  one  modifica- 
tion. While  a  married  woman  is  as  incapable  of  binding  herself 
personally  in  equity  to  the  same  extent  as  at  law,  her  contracts  re- 
hiting  to  or  made  in  view  of  her  separate  estate  are  so  far  valid  and 
eflectual  that  they  are  enforceable  against  such  separate  estate. - 
■riie  modification  mentioned  relates  to  the  requirement  of  a  valu- 
able consideration.  Equity  will  never  enforce  an  executory  agree- 
numt  unless  there  was  an  actual  valuable  consideration  ;  and,  unliki' 
the  common  law,  it  does  not  permit  a  seal  to  supply  the  place  of  a 
i-eal  consideration.  Disregarding  mere  forms,  and  loolxiiig  at  the 
I'inility,    it   requires   an    actual    valuable    considei'atinn    as    (^ssiMitial 

'  Per  Lord  West  bury,  in  Chinnock  v.  ^Marchioness  of  Ely,  4  De  Oex,  J.  &  S. 
(;:?S,    643. 

=  See    ante,    SS    1121-1120. 


§  l^^MT)  EQUITY     JUIilSPRUDENCE.  77i 

ill  every  such  agreement,  and  allows  the  Avant'  of  it  to  be  shown, 
notwithstanding-  the  seal,  in  the  enforcement  of  eoveno/iits,  settle- 
ments, and  executory  contracts  of  every  description."'  In  constru- 
ing- and  applying  the  statute  of  frauds,  in  determining  what  con- 
tracts come  within  its  scope,  what  memoranda  are  sufficient  to  a 
sale  by  its  requirements,  and  all  other  matters  of  detail,  courts 
of  equity  and  of  law  adopt  and  follow  the  same  rules.*  Even  when 
equity  seems  to  depart  from  or  disregard  the  statute,  and  specially 
in  its  enforcement  of  verbal  contracts  for  the  sale  of  land  which 
have  been  part  performed,  it  is  only  invoking  the  aid  of  its  most 
salutary  principles  for  the  purpose  of  carrying  out  the  ultimate 
objects  of  the  statute.  As  the  primary  object  of  the  statute  is 
to  prevent  frauds,  mistakes,  and  perjuries,  by  substituting  written 
for  oral  evidence  in  the  most  important  classes  of  contracts,  courts 
of  equity  have  established  the  principle,  which  they  apply  under 
various  circumstances,  that  it  shall  not  be  used  as  an  instrument 
for  the  accomplishment  of  fraudulent  purposes ;  designed  to  prevent 
fraud,  it  shall  not  be  permitted  to  Avork  fraud.  This  principle  lies 
at  the  basis  of  the  doctrine  concerning  part  performance,  but  is 
also  enforced  wherever  it  is  necessary  to  secure  equitable  results.'' 

§  1295.  Effects  of  a  Contract  in  Equity — Covenant  Creating-  an 
Equitable  Servitude. — Before  describing  the  general  effects  of 
contracts,  I  shall  notice  some  particular  agreements  which  create 
.special  rights  in  eqnity,  where  no  such  rights,  or  perhaps  no  rights 
at  all,  between  the  same  parties,  exist  at  law.  "When  the  owner  of 
land  enters  into  a  covenant  concerning  it,  when  in  a  deed  the 
grantor  or  the  grantee  covenants,  or  in  a  lease  the  lessor  or  the 
lessee  covenants,  concerning  the  land,  concerning  its  use,  restrict- 
ing certain  specified  uses,  stipulating  for  certain  specified  uses, 
subjecting  it  to  easements  or  servitudes,  and  the  like,  and  the  land 
is  afterwards  conveyed,  or  sold,  or  passes  to  one  who  has  actual  or 
constructive  notice  of  the  covenant,  the  grantee  or  purchaser  will 
take  the  premi.ses  bound  by  the  covenant,  and  will  be  compelled 
in  equity  either  to  specifically  execute  it,  or  will  be  restrained  from 
violating  it.  at  the  suit  of  the  original  covenantee  or  of  any  other 
person  who  has  a  sufficient  equitable  interest,  although  perhaps 
without  any  legal  interest,  in  such  performance.  It  makes  no 
difference  whatever,  with  respect  to  this  equitable  liability,  and 
this  right  to  enforce  the  covenant  in  equity,  whether  the  covenant 
is  or  is  not  one  Avhich  in  law  "runs  with  the  land."^     Subsequent 

^  See   ante,    §    370. 

*  See  Pomeroy  on  Specific  Performance  of  Contracts,  sees.  Tl-O.J.  and  cases 
cited. 

"^See  ante,  §  021  ;  post.  5;   1409  et  seq. 

■•Tiilk  V.  Moxliav,  2  Plull.  C'li.   774.  777.   1   Amc  Eq.  .Tur.    147.  2   Keener  54.5, 


775  DocTiaxK  co.\ci:i;xix(i  cox  tracts.  §  12Ud 

o^^•uel•.s  deriving  title  under  deeds  containing  sucli  covenants  would,  of 
course,    have    constructive    notice    tliereof.      This    equitable    right 

2  iScptt  486;  and  see  ante,  §  (589.  This  doctrine  may  bo  regarded  as  an  equitable 
substitute  for  or  addition  to  the  legal  rule  concerning  covenants  running  Avitli 
the  land;  or  it  may  be  explained  by  regarding  the  covenant  as  creating  an 
equitable  easement.  The  latter  theory  has  been  adopted  by  many  able  Ameri- 
can courts.  In  either  view,  the  covenant  confessedly  creates  an  equitable 
burden  on  the  land,  which  follows  it  into  the  hands  of  subsequent  holders, 
with  the  single  qualification  that  a  subsequent  owner  who  acquires  the  legal 
estate  for  value  and  without  notice  takes  it  free  from  this  burden.  A  subse- 
<iuent  holder  who  acquires  only  an  equitable  estate  takes  it  subject  to  tlie 
burden,    even    in    the    absence    of    any    notice. 

The  most  frequent  condition  of  facts  to  which  the  doctrine  has  been  applied 
in  the  United  States  is  the  following:  A,  the  owner  of  a  block  of  land,  divides 
it  into  lots  for  sale,  and  sells  all  thei^e  lots  to  different  grantees.  In  the  deed 
of  lot  Xo.  1  are  covenants  of  the  grantee  not  to  build  nearer  the  street  than 
a  certain  line,  or  not  to  build  certain  kinds  of  buildings,  or  not  to  use 
the  lots  for  certain  purposes,  or  not  to  build  so  as  to  cut  off  a  certain 
l)rospect,  or  other  negative  or  affirmative  covenants.  The  deeds  of  all  the 
other  lots  contain  similar  covenants.  Finally,  the  whole  land  is  sold,  so 
that  A  retains  no  interest  whatever.  The  lots  are  aftei-wards  conveyed  t6 
subsequent  grantees.  Each  subsequent  grantee  would  be  charged  with  con- 
structive notice  of  the  covenants  in  the  original  deed  under  which  he  claimed 
title.  If  the  subsequent  grantee  of  any  lot — say  No.  1 — should  violate  the 
covenants  in  the  deed  of  his  lot,  then  plainly  there  would  be  no  right  of 
action  at  lair  against  him  in  favor  of  the  owner  of  any  other  lot;  for  there 
would  be  no  legal  privity  what.^oever  between  them.  Even  if  the  covenants 
did  run  with  the  land,  there  would  be  no  action  at  law%  because  the  grantee 
of  |ot  Xo.  2  would  not  be  in  any  sense  an  assignee  of  the  reversion, — that  is, 
of  tlie  cniginal  covenantee's  (A's)  rights  under  the  covenant.  Although  no 
action  at  law  would  lie.  it  is  well  settled  that  a  suit  in  equity  may  be 
maintained  by  the  original  grantee  or  by  the  subsequent  owner  of  any  lot. 
tn  prevent  a  violation  of  the  covenants  by  the  owner  of  any  other  lot.  The 
following  cases  illustrate  the  doctrine:  Schwoerer  v.  Boylston  Market  Ass'n., 
on  ]Mass.  28.5,  2  Keener  48.3  (a  covenant  that  a  strip  of  land  should  not  be 
subject  to  fences,  and  should  be  used  as  a  way,  was  enforced  by  the  subse- 
quent grantee  of  gtber  land  l)enefited  thereby)  :  Peck  v.  Conway,  119  Mass. 
.^4f).  1  Ames  Eq.  Jur.  162,  2  Scott  527.  2  Keener  509  (a  covenant  not  to  erect 
a  building  on  the  land  conveyed  was  enforced  against  a  subsequent  grantee 
of  the  covenantor  by  a  subsequent  grantee  of  the  original  covenantee;  the 
defendant  had  constructive  notice  from  his  title  deeds)  ;  Whitney  v.  Union  R'y. 
11  Gray,  359;  71  Am.  Dec.  715.  2  Keener  547  (a  covenant  not  to  use  the 
land  in  a  certain  manner  enforced  against  a  subsequent  grantee  charged  with 
notice)  ;  Parker  v.  Xightingale.  6  Allen  341.  83  Am.  Dec.  632.  2  Keener  475 
(in  conveyances  of  adjoining  lots  by  same  grantor,  each  grantee  covenanted 
that  the  lot  should  only  be  used  for  dwelling-houses;  held  binding  on  all 
subsequent  grantees,  and  enforceable  by  any  subsequent  grantee  against  an- 
other) . 

Where  the  benefit  of  the  covenant  made  by  the  grantee  of  a  lot  or  parcel  is 
claimed  by  the  prior  or  subsequent  grantee  of  another  lot  or  parcel,  it  must 
clearly  appear,  from  tlie  construction  of  llie  covenant  in  connection  witli 
surrounding  circumstances,   that  it  was  intended  for  the  benefit   of  such   other 


§  1295  EQUITY  JUEISPRUDEXCE.  776 

"would  arise  where  no  similar  legal  right,  or  perhaps  no  legal 
right  at  all,  would  exist  between  the  same  parties,  in  the  following 

grantees,  and  was  not  merely  personal  to  the  grantor.  The  covenant  may  ex- 
plicitly state  such  intent:  Rogers  v.  Hosegood  (1900),  2  Ch.  388,  1  Ames  Eq. 
Jur.  165;  and  in  the  case  of  a  general  scheme  or  plan  for  the  improvement 
of  property',  like  that  described  above,  such  intent  will  readily  be  inferred ; 
see  Nottingham,  etc.,  Co.  v.  Butler,  L.  R.  16  Q.  B.  D.  778,  1  Ames  Eq.  Jur.  169, 
2  Scott  530,  2  Keener  519;  Collins  v.  Castle,  L.  R.  36  Ch.  D.  243,  2  Keener 
523;  Spicer  v.  Martin,  L.  R.  14  App.  Cas.  12,  2  Keener  533;  Barrow  v.  Richard, 
8  Paige  351,  35  Am.  Dec.  713,  1  Ames  Eq.  Jur.  173,  2  Scott  521,  2  Keener 
461;  De  Gray  v,  Monmouth  Beach  Clubhouse  Co.,  50  N.  J.  Eq.  329,  24 
Atl.  388,  2  Scott  534.  In  the  following  additional  cases  there  was  sufficient 
evidence  of  intent  to  benefit  other  grantees:  Child  v.  Douglas,  Kay  560,  2 
Keener  467;  Tobey  v.  Moore,  130  Mass.  448,  2  Keener  516;  Peck  v.  Conway, 
supra.  In  the  folloAving  the  evidence  of  such  intent  was  not  sufficient:  Keates 
V.  Lyon,  L.  R.  4  Ch.  218,  2  Keener  493;  Renals  v.  Cowlishaw,  L.  R.  9  Ch.  D. 
125.  1  Ames  Eq.  Jur.  159,  2  Scott  501,  2  Keener,  512;  Jewell  v.  Lee,  14 
Allen  145,  92  Am.  Dec.  744,  2  Keener  479;  Badger  v.  Boardman,  16  Gray 
559,  2  Keener  473;  Sharp  v.  Ropes,  110  Mass.  381,  2  Keener  504;  Lowell  In'st. 
V.  City  of  Lowell,   153  Mass.   530,   27  N.  E.  518,  2  Keener   562. 

It  is  not  necessary  that  a  party,  to  be  bound  by  the  restriction,  should  have 
actual  notice  thereof;  constructive  notice,  such  as  that  derived  from  his  chain 
of  title,  is  sufficient:  Whitney  v.  Union  Ry.  Co.,  11  Gray  359,  71  Am.  Dec. 
715,  2  Keener  547;   Carter  v.  Williams,  L.  R.  9  Eq.  678,  2  Keener  565. 

\\'hen  a  party  knowingly,  and  against  remonstrances,  l)uil(ls  in  violation  of  a- 
restrictive  covenant,  a  mandatory  injunction  may  issue  to  compel  the  removal 
of  such  portions  of  the  building  as  are  in  violation  of  the  covenant,  even  thougli 
such  violation  is  slight:  Attorney  General  v.  Algonquin  Club,  153  Mass. 
447,  27  N.  E.  2,  11  L.  R.  A.  .500,  2  Keener  319. 

On  the  question  what  covenants  relate  so  directly  to  the  use  of  the  land 
that  they  are  capable  of  being  attached  to  it,  the  cases  are  in  conflict.  Thus, 
it  is  held  that  an  agreement  to  give  to  a  certain  railroad  the  exclusive  priv- 
ilege of  transporting  the  products  of  the  land  does  not  bind  a  purchaser 
Avith  notice:  Kettle  River  R.  Co.  v.  Eastern  R.  Co.,  41  Minn.  461,  43  X.  W. 
469,  6  L.  R.  A.  Ill,  2  Scott  489;  contra,  Bald  Eagle  Val.  R.  Co.  v.  Nittany 
Val.  R.  Co.,  171  Pa.  St.  284,  .50  Am.  St.  Rep.  807,  33  Atl.  239,  29  L.  R.  A. 
423;  and  that  a  covenant  by  a  grantor  not  to  open  a  quarry  on  his  remaining 
land  will  not  be  enforced  against  a  subsequent  grantee  Avith  notice  of  such 
remaining  land;  Norcross  v.  James,  140  Mass.  188,  2  X.  E.  946,  1  Ames 
Eq.  Jur.  182,  2  Scott  .504,  2  Keener  591 ;  contra,  on  A'ery  similar  facts,  Hodge 
v.  Sloan,  107  N.  Y.  244,  1  Am.  St.  Rep.  816,  17  N.  E.  33.5,  1  Ames  Eq.  Jur. 
184.  2  Scott  50S,  2  Keener  5S5. 

In  BrcAver  v.  Marshall,  19  N.  J.  Eq.  537,  97  Am.  Dee.  679,  2  Keener  557, 
there  was  a  covenant  by  the  grantor  not  to  sell  off  any  marl  from  the 
premises  adjoining  the  lot  conA'eyed.  The  court  fully  recognized  and  accepted 
the  doctrine  of  the  text,  but  held  that  this  particular  covenant  Avas  one  Avhich 
equity  Avould  not  enforce;  if  not  absolutely  illegal,  it  closely  resembled  cove- 
nants in  restraint  of  trade,  AA'hich  are  confessedly  illegal. 

The  equitable  jurisdiction  to  enforce  such  eoA'enants  is  subject  to  one  most 
important  limitation.  It  is  not  absohite.  but  is  governed  by  the  same  general 
rules  Avhich  control  the  equitable  relief  of  specific  performance  of  contracts. 
Jf.  tlierefore,  the  restrictive  covenants  in  deeds  of  lots  AA-ere  made  Avith  evident. 


777  DocTiiixK  cu\ci;i;.\].\G   tuxiKvcTs.  §  r21i5 

instances:  1.  AYhere  tlie  covenant  is  not  one  which  runs  with  the 
Jand,  because  in  such  case  no  legal  liability  whatever  would  rest 
upon  the  subsequent  grantee  or  owner;  2.  Where  the  rocciiuntee 
having  parted  with  all  interest  in  the  premises,  there  is  no  lerjal 
privity  of  estate  or  of  contract  between  the  plaintifil"  who  seeks  to 
enforce  the  covenant  and  the  subseciucnt  owner  against  whom  the 
enforcement  is  sought,  because  in  such  case  no  action  at  law  for 
a  broach  would  lie:  3.  Where  the  stipulations  of  the  covenant  and 
the  breach  thereof  are  of  such  a  nature  that  there  is  no  basis  upon 
Avhich  to  estimate  damages.-     In  all  these  cases,  howevei-.  the  cov- 

rcfi-rence  to  the  continuance  of  the  existing  general  condition  of  the  property  and 
its  surroundings,  but  in  the  hipse  of  time  there  has  been  a  complete  change 
in  the  character  of  the  neigliborhood,  so  as  to  defeat  the  purposes  of  the  cove- 
nants and  to  render  their  enforcement  an  inequitable  and  unjust  burden  on 
the  owner  of  tlie  lots,  then  the  equitable  relief  will  not  be  granted,  and  the 
plaintiff  will  be  left  to  his  remedy  at  law.  For  example,  if  the  covenants 
restricted  tlie  grantees  of  lots  to  use  for  purjjoses  of  resiliences,  and  since  their 
execution  the  whole  ne'igliborhood  had  ceased  to  be  used  for  such  jnirposes. 
and  had  been  wholly  given  up  to  business,  manufacturing,  and  tlie  like: 
Trustees,  etc.,  v.  Thacher,  87  N.  Y.  311,  317,  318,  41  Am.  Rep.  365,  2  Keener  1038; 
.see.  also,  Amerman  v.  Deane,  132  N.  Y.  355,  28  Am.  St.  Rep.  584.  30  X.  E. 
741,  2  Keener  1050;  Jackson  v.  Stevenson,  156  Mass.  496,  32  Am.  St.  Rep. 
476.  31  N.  E.  691,  1  Ames  Eq,  Jur.  179;  Duke  of  Bedford  v.  British  Museum, 
2  Myine  &  K.  552,  2  Keener  1010.  The  right  to  equitable  relief  may  also 
be  lost  by  acquiescence:  Ocean  City  Ass'n  v.  Schurch,  57  N.  J.  Eq.  268. 
41  Atl.  914,  1  Scott  215;  Whitney  v.  Union  Ry.  Co.,  11  Gray  359.  71  Am. 
Dec.  715,  2  Keener  547:  Child  v.  Douglas,  Kay  560,  2  Keener  467  (no  ac- 
quiescence shown)  ;  Western  v.  JIacdermott,  L.  R.  2  Ch.  App.  72,  2  Scott 
511  (plaintill's  \iolations  of  his  own  covenants,  where  not  substantial,  do  not 
8how  acquiescence). 

In  tlie  interesting  case  of  Lewis  v.  Gollner,  129  N.  Y.  227,  26  Am.  St. 
Rep.  516,  29  X.  E.  81,  1  Ames  Eq.  Jur.  l.-)2.  2  Scott  496,  2  Keener  612.  it 
was  held  that  tlie  restriction  applied  to  land  siihsequently  acquirefj  by  the 
covenantor,  and  bound  it  in  the  hands  of  a  purchaser  from  him  with  notice. 
In  the  same  state  the  courts  have  extended  the  doctrine  of  restrictive  cove- 
nants to  pergonal  pToperti/  in  some  instances,  so  that  the  party  purchasing 
"the  chattel,  with  notice,  becomes  burdened  with  contracts  made  by  its  owner 
in  reference  thereto:  New  York  Bank  Note  Co.  v.  Hamilton  Bank  Note  Co., 
83  Hun.  593.  31  N.  Y.  Supp.  1060.  2  Keener  618:  Murphy  v.  Christian,  etc.. 
Co.,  38  App.  Div.  (N.  Y.)  42(5.  1  Ames  Eq.  Jur.  157.  2  Scott  000  (contract 
that  books  printed  from  certain  plates  should  be  sold  at  a  specified  price, 
binding  upon  a  purchaser  of  the  plates). 

-"The  injunction  in  this  class  of  cases  is  granted  almost  as  a  matter  of 
course  upon  a  breach  of  the  covenant.  The  amount  of  damages,  and  even  the 
fact  that  the  plaintiff  has  sustained  any  pecuniary  damages,  are  wholly  im- 
material. In  the  Avords  of  one  of  the  ablest  of  modern  equity  judges:  'It  is 
clearly  established  by  authority  that  there  is  sufficient  to  justify  the  court 
interfering,  if  there  has  been  any  breach  of  the  covenant.  Tt  is  not  for  the 
court,  but  for  the  plaintifTs.  to  estimafc  the  ninount  of  damages  that  arises 
from   the   injurv   inflicted   upon   them.     The   moment    the   court    finds   that    there 


§  1297  EQUITY  JUKISPRUDEXCE.  778 

enant  may  be  enforced  in  equity.  I  have,  as  it  will  be  seen,  con- 
tinued to  state  the  doctrine  in  its  most  general  form  as  applying 
to  affirmative  as  well  as  to  restrictive  covenants,  and  as  rendering 
the  owner  liable  to  the  affirmative  duty  of  specifically  performing 
the  covenant,  as  well  as  to  the  negative  remedy  of  restraint  from 
violating  it,  notwithstanding  the  very  recent  decisions  by  the 
English  court  of  appeal  holding  that  the  doctrine  applies  only  to 
restrictive  covenants,  and  does  not  extend  to  those  which  stipulate 
for  affirmative  acts."  In  my  opinion,  the  doctrine  has  been  fully 
established,  in  its  most  general  form,  without  such  limitation,  by 
the  overwhelming  weight  of  authority,  English  and  American. 

§  1296.  Effects  of  Contracts  in  General.^— 

§  1297.  Enforcement  of  Contracts  in  Equity. — In  the  enforcement 
of  contracts,  equity  may  be  governed  by  very  different  considera- 
tions from  those  which  are  indispensably  requisite  at  law.  The  law 
holds  parties  strictly  and  literally  to  the  very  terms  of  their  agree- 
ments, and  demands  from  the  plaintiff  an  exact  performance  of  all 
the  stipulations  on  his  part  which  are  essential  to  a  recovery,  or  else 
no  legal  right  of  action  can  accrue  to  him  on  the  contract.  Also, 
no  action  at  law  can  be  maintained  upon  a  contract  which  is  not 
valid  in  compliance  with  rules  of  the  common  law  or  of  statute. 
Both  of  these  stringent  requirements  are  relaxed  in  equity,  and 
(Hmtracts  mav  be  enforced,  where,  from  some  default,  or  some  lack 


lias  been  a  broach  of  the  covenant,  that  is  an  injury,  and  the  court  lias  no 
ri^ht  to  measure  it,  and  no  right  to  refuse  to  the  plaintiff  the  specitic  per- 
formance of  his  contract,  although  his  remedy  is  that  which  I  have  described, 
namely  an  injunction."  Pom.  Eq.  .Tur.,  S  1342.  and  note,  quoting  Sir  George 
•lessel,  M.  R.,  in  Leech  v.  Schweder,  L.  E.  9  Ch.  403.  To  the  same  effect,  see 
(Collins  v.  Castle,  L.  R.  30  Ch.  J).  243,  2  Keener  .523:  Peck  v.  Conway,  110 
JMass.  546,  1  Ames  Eq.  Jur.  102,  2  Scott  .527,  2  Keener  .509. 

■=*  Haywood  v.  Brunswick,  etc.,  Soc.,  L.  R.  8  Q.  15.  Div.  403  (covenant  to  build 
and  keep  in  repair  some  houses),  1  Ames  Eq.  Jur.  170,  2  Scott  51.5,  2  Keener 
580.  Earlier  English  cases  contain  no  such  limitation.  These  and  American 
cases  to  the  same  effect,  show,  as  it  seems  to  me,  that  the  rule  in  its  general 
scope  as  stated  in  the  text  had  been  fully  settled.  T  doubt  whether  American 
courts  would  feel  themselves  bound  to  follow  these  latest  English  decisions  which 
put  a  limitation  upon  the  rule  hitherto  unknown.  It  is  proper  to  remark  that 
the  case  in  which  the  limitation  was  for  the  first  time  laid  down,  was  an  action 
at  law  for  damages,  decided  by  a  court  composed  of  judges  trained  h\  legal 
rather  than  in  equitable  doctrines.  Finally,  the  limitation,  in  my  opinion,  is 
wholly  arbitrary,  for,  on  principle,  there  seems  to  be  no  distinction  between 
tlie   equitable   operation   and   effect   of   affirmative   and   of   restrictive  covenants. 

'  With  regard  to  the  distinctive  feature  of  equity  jurisprudence,  that  an 
executory  agreement  creates  specitic  equitable  interests  in  the  property  which 
is  its  subject-matter,  see  ante,  §§  305-300;  on  conversion  by  contracts, 
ante,  §§  1159,  1101,  1163;  on  liens  created  by  contract,  ante,  §§  1235-1237. 


ii'j  DOCTRIXK    CONCKHXIXG    CONTKACT.S.  ^    l"29Y 

of  legal  formality  or  condition,  no  action  at  law 'can  be  maintained. 
'Inhere  are  two  general  classes  of  such  eases.     The  tirst  embraces 
those  contracts  in  which  the  plaintiff,   by   reason  either  of  some 
extrinsic  circumstances  or  of  his  own  default,  has  not  performed, 
or  even  cannot  perform,  all  the  conditions  on  his  part  necessary  to 
be  performed  in  order  that  an  action  at  law  may  be  maintained 
thereon,  but  Avhich  nevei'theless  a  court  of  equity  regards  as  bind- 
ing and  will  enforce.^     The  second  class  embraces  contracts  which 
are  not  valid  in  law,  which  the  law  does  not  treat  as  contracts  at 
all,  but  which  equity  regards  as  binding  in  conscience,  and  enforces 
by  its  remedy  of  specific  performance.     The  legal  invalidity  may 
result  from  the  non-observance  of  some  statutory  requirements  con- 
cerning the  mode  of  making  the  agreement,  or  from  certain  doc- 
trines  of  the    common   law,    irrespective   of   statute,    affecting   its 
terms  or  its  subject-matter.    By  far  the  most  important  and  numer- 
ous species  of  contracts  contained  in  this  class  are  those  which, 
being  void  at  law  under  the  statute  of  frauds,  have  been  part  per- 
formed by  the  plaintiff",  and  will  therefore  be  wholly  executed  in 
specie,  at  his  suit  and  for  his  benefit,  by  courts  of  equity.-    Among 
the  agreements  which  the  original  common  law  treated  as  invalid, 
irrespective   of  statutes,   but  which   equity,   in   the   application   of 
its  conscientious  principles,  regards   as  binding,   and   enforces  by 
granting  its  relief  of  specific  performance,  are  the  following:  Agree- 
ments for  the  assignment  or  disposition  of  a  possibility,  expectancy, 
or  hope  of  succession  ;^  agreements  to  assign  things  in  action  ;*  exe- 
cutory agreements  made  between  a  man  and  a  woman  who  after- 
Avards  marry,  which  then  became  absolutely  void  at  common  law, 
but  Avhich  equity  may  specifically  enforce   against  either  the  hus- 
band or  wife  at  the  suit  of  the  other;''  contracts  made  by  an  owner 
i(,  convey  his  land  at  some  future  day  named,  who  dies  before  the 
time    for    completion    arrives."      In    all    of    these    cases,    however, 
modern  statutes  have  changed  the  legal  rules,   so  that  such  con- 
tracts would  be  valid  at  law. 

'  See  IMortlock  v.  Buller,  10  Ves.  202,  305,  306. 
See  post,  §  1409  et  i^eq :  Mundy  v.  Jolliffe,  5  Myhio  e^  C.  177,  1  Ames  Eq.  Jur. 
289;  Jervis  v.  Smith,  Hoff.  Ch.  470,  1  Ames  Eq.  .Tnv.  313. 

■•See   ante,    §1287. 

'  See  post,  §  1402. 

M^annel  v.  Buckle.  2  P.  Wms.  243,  1  Scott  100;  Acton  v.  Acton,  Free.  Ch. 
237.   Kirch.   202. 

•^  At  common  law  this  contract  is  rendered  impossible;  the  administrator 
cannot  convey,  because  he  acquires  no  interest  whatever  in  the  land,  and  no 
lej?al  oblij^ation  devolves  upon  the  heir.  Equity  enforces  the  contract  against 
the  heir:  Milnes  v.  Gery,  14  Ves.  400,  403,  2  Keener  111,  in  argument  of 
counsel;    Newton  v.   Swazey,  8  X.  H.  9,   1    Scott  109. 


;l;JO-^  EQUITY     JLiasPKUDENCE.  '^BO 


SECTION  II. 

EQUITABLE  DEBTS. 

ANALYSIS. 

§   1298.  General    nature. 

§   1299.  Husband's    liability    for    wife's    necessaries. 

§   1300.  Liability    for    money    advanced    to    pay    debts    of    a    person    in- 
capable  of   contracting. 
§   1301.  On  death  of  one  joint  debtor. 
§   1302.  On   death  of  a   joint  surety. 

§  1301.  On  Death  of  One  Joint  Debtor.— ^ 
§  1302.  Death  of  a  Joint  Surety.—^ 

1  See    ante,    §   409. 
'  See    ante,    S   409. 


781  i^TANxy.  §  1303 


CHAPTER  TENTH. 

PERSONS  NOT  SUI  JURIS. 


SECTION   I. 

INFANTS. 

ANALYSIS. 

§   1303.  Questions   stated. 

S   1304.  Origin  of  the  equitable  jurisdiction  over  infants. 

S   1305.  How  jurisdiction  is  acquired;   infant  made  a   ''ward  of  court." 

SS   130(5-1307.  Extent  oi  the  jurisdiction. 

§   1306.  Appointment    of    guardians. 

"    S   1307.  Custody   of   infants;    custody  of  parents,   when   controlled. 

SS   1308-1310.  How   the    jurisdiction    is   exercised. 

§   1308.  Supervision  of  the  guardian. 

§   1300.  Management  of  the  property. 

§   1310.  Marriage  of   infant  ward. 

§  1303.  Questions  Stated. — I  sliall  not  in  this  chapter  enter  npon 
any  discission  of  the  rig'hts.  powers,  capacities,  and  liabilities  of 
infants;  nor  shall  T  treat  of  the  different  kinds  of  ^nardians.  their 
modes  of  appointment,  their  powers,  duties,  and  liabilities.^  I 
purpose  merely  to  describe  in  a  very  brief  manner  the  inherent 
orisrinal  jurisdiction  of  eqnity.  as  a  part  of  its  general  jurispru- 
dence, and  independent  of  the  statutory  legislation  eoncernins:  the 
same  subject-matters,  over  the  persons  and  estates  of  infants,  the 
2'eneral  nature  and  extent  of  that  jurisdiction,  how  it  is  acquired, 
and  how  and  for  what  purposes  it  is  exercised."    In  England  this 

^The  general  jtirisdiction  of  eqviity  over  all  guardians  as  fiduciarv  persons.. 
for  the  purpose  of  compelling  them  to  account,  has  already  been  stated  i 
Ante.  §  1097. 

-Throughout  the  Unfted  States  the  modes  of  appointing  guardians,  and 
their  rights,  powers,  and  duties,  are  generally  regulated,  and  in  many  states 
very  minutely  regulated,  by  statutes.  A  special,  and  often  coinplete,  statu- 
tory jurisdiction  over  them  is  given  to  the  probate  courts,  under  whatever 
name,  as  a  part  of  the  general  statutory  system  for  the  administration  and 
settlement  of  decedents'  estates.  Tn  this  manner,  the  original  jurisdiction  of 
equity,  like  that  over  administrations,  has  been  to  a  great  extent  superseded, 
and  in  some  states  probably  abrogated,  by  the  special  statutoiy  system. 
On  the  other  hand,  as  to  all  matters  not  included  within  the  statutes,  and 
in    many   states   concurrently    witli    this    siatutory    system,    the   original    equity 


§  1306  EQUITY     JURlSPRUDEXCi:.  '^SJS 

particular  jurisdiction  is  one  of  the  most  important  branches  of 
the  eqnity  jurisprudence,  and  hardly  any  other  is  more  frequently 
exercised  by  the  courts  of  chancery.  In  this  country,  by  reason  of 
statutory  legislation,  it  is  relatively  of  much  less  importance." 

§  1304.  Origin  of  This  Equitable  Jurisdiction. — It  is  also  wholly 
unnecessary  to  enter  upon  any  discussion  of  the  mooted  questions 
as  to  the  origin  of  the  jurisdiction.  It  may,  in  its  very  inception, 
have  belonged  to  the  king  as  a  part  of  his  executive  power  as 
parens  patriae  to  protect  his  subjects,  and  may  by  him  have  been 
transferred  to  the  court  of  chancery.  It  is,  however,  firmly  es- 
tablished as  a  judicial  function  of  the  court;  it  does  not  belong 
to  the  chancellor  alone  as  the  personal  delegate  and  representa- 
tive of  the  crown;  it  is  exercised  by  all  the  judges  composing  the 
eourt  of  chancery,  in  the  same  manner,  and  governed  by  the  same 
regulations,  as  all  other  confessedly  judicial  functions.^  The  same 
inherent  jurisdiction  is  possessed,  although  not  exercised  so  freeh- 
and minutely,  by  the  American  courts,  unless  curtailed  or  taken 
away  by  statute, — a  fact  very  difficult  of  explanation,  on  the  as- 
sumption that  the  jurisdiction  is  a  part  of  the  executive  functions 
of  the  crown. - 

§  1305.  How  Acquired. — In  order  that  the  jurisdiction  may  be 
acquired  in  any  particular  case,  the  infant  must  be  made  a  ''ward 
of  the  court."  He  thus  becomes  a  ward  of  the  court  whenever  he 
is  brought  before  the  court  for  any  purpose,  as  a  party  plaintiff  or 
defendant  to  a  suit,  petition,  order,  application,  or  an}'  other  pro- 
ceeding.^ 

§  1306.  Its  Extent — Appointment  of  Guardians. — The  jurisdic- 
tion having  thus  attached,  we  may  next  inquire  as  to  its  extent,  or 
what  acts  may  be  done  in  virtue  of  it.  In  the  first  place,  it  is  a 
firmly  settled  doctrine  that  the  court  of  equity  can  and  will  ap- 
jurisdiction  over  infants,  like  that  over  administrations,  still  remains  in  full 
force,    to    be    exercised    whenever    occasion    calls    for    its    being    set    in    motion. 

■■  For  a  full  and  detailed  discussion  of  the  jurisdiction  in  all  its  phases, 
see  tlie  English  and  American  notes  to  Eyre  v.  Countess  of  Shaftsbury,  2 
J.ead.  Cas.  Eq.  4th  Am.  ed.,  141G,  144fi,  1487. 

'  Although  the  theory  that  the  jurisdiction  had  its  origin  in  the  king's 
])()\ver  as  i)arens  patriae  has  been  accepted  by  many  of  the  English  judges, 
and  has  been  constantly  repeated  by  text-writers,  English  and  American, 
there  seem  to  be  almost  insuperable  difficulties  involved  in  it,  and  it  has 
been  rejected  by  some  of  the  ablest  English  jurists.  In  this  country,  ac- 
cording to  our  system  of  government,  the  power  of  parens  patriae  belongs 
exclusively  to  the  legislature  of  each  state,  and  is  not  possessed  by  the  courts. 
With  regard  to  the  nature  and  origin  of  the  jurisdiction,  see  Eyre  v.  Countess 
of  Shaftsbury,  2  P.  Wms.  103;  2  Lead.  Cas.  Eq.,  4th  Am.  ed.  1416,  1446, 
1487. 

-(loodman  v.  \Mnler,  64  Ala.  410,  ."8  Am.  Eep.   13. 

^  McGowan  v.  Luf borrow,  82  Ca.  523,  14  Am.  St.  Rep.  178,  9  S.  E.  427. 


S'SS  iNFAXXy.  §1308 

point  a  guardian  of  the  person  and  estate  of  the  infant,  when  there 
is  no  other  guardian,  or  none  who  will  or  can  aet.^  This  is  ordi- 
narily the  first  step  which  is  taken,  and  the  further  control  of  the 
infant's  person  or  property  is  usually  exerted  upon  and  through 
this  guardian.     .     .     . 

§  1307.  The  Same.  Custody  of  Infants. — In  addition  to  its  pow- 
er to  ai^point  guardians,  the  court  of  equity  will  also  exercise  its 
jurisdiction,  in  a  proper  case,  and  to  promote  the  highest  welfare 
of  the  infant,  where  there  is  already  a  guardian,  natural  or  legal, 
by  controlling  the  person  of  the  infant,  and  by  removing  it  per- 
sonally from  the  custody  of  its  natural  or  legal  guardian,  even 
from  the  custody  of  its  own  parents.  By  the  common  law,  as  well 
as  by  the  law  of  nature,  the  father  is  the  natural  guardian  of  his 
infant  children.  It  is  not  only  the  father's  right,  but  his  impera- 
tive dutij,  to  have  custody  of  the  persons  of  his  infant  children,  and 
to  educate  and  train  them  so  as  to  promote  their  future  well-being 
as  members  of  society.  The  equitable  jurisdiction  over  the  persons 
of  infants  is  based  upon  this  parental  duty,  and  is  an  indirect 
means  of  enforcing  it  by  furnishing  a  remedy  for  its  violation.  The 
jurisdiction  is  a  delicate  one;  it  rests  in  the  highest  degree  upon 
the  enlightened  discretion  of  the  court,  and  will  only  be  exercised 
when  plainly  demanded  as  the  means  of  securing  the  infant's  pres- 
ent and  future  well-being.  It  is  well  settled,  therefore,  that  a 
court  of  equit^^  may  interfere  on  behalf  of  infants,  and  remove 
them  from  the  custody  and  control  of  their  father  or  mother,  when- 
ever the  habits,  practices,  instruction,  or  example  of  the  parent. 
exerting  a  personal  influence  on  the  infants,  tend  to  corrupt  their 
morals  and  undermine  their  principles;  or  when  the  parent  is  neg- 
lecting their  education  suitable  for  their  condition  in  life;  or  is 
endangering-  their  property;  or  is  guilty  of  ill-treatment  or  cruelty 
towards  them.^  The  court  will,  of  course,  under  like  circumstances, 
remove  infants  from  the  custody  of  a  legal  or  appointed  guard- 
ian.      .     .     . 

§1308.  How  Exercised — Supervision  of  the  Guardian. — An  infant 
having  been  made  a  ward  of  the  court,  and  a  guardian  being  ap- 

*  This  power  to  appoint  guardians  exists  in  tlie  American  states,  so  far  as 
it  has  not  been  taken  away  or  restricted  by  statute.  In  the  Matter  of  Hubbard, 
82  A".   Y.  90,  92. 

'  In  this  country  the  tendency  of  the  decisions,  and  especially  of  the  modern 
statutes,  is  to  place  the  mother's  rigiits  upon  an  equalitj'  with  those  of  tin- 
father.  There  is  one  fundamental  vu\e.  viz.,  that  the  exercise  of  the  juris- 
diction depends  upon  the  soimd  and  cnliirhtened  discretion  of  the  court,  and  has 
for  its  sole  object  the  highest  well-being  of  the  infant;  it  should  never,  thei'efore, 
be  influenced  by  any  sentimental  considerations  in  behalf  of  either  mother 
or  father.  See  Agar-EUis  v.  Lascelles,  24  Ch.  Div.  317;  Richards  v.  Collins, 
45  N.  J.   Kq.  283.  14  Am.  St.  Rep.  726,   17  Atl.  831. 


^  i;)]0  EQUITY    ju];j81'i;i:denck.  784 

pointed,  the  further  jurisdiction  concerning  the  ward  is  ordinarily 
exercised  by  supervising,  directing,  and  controlling  the  acts  of  the 
guardian  in  the  management  of  his  trust.  The  supervision  and 
control  may  be  summed  up  as  directed  chiefly  to  three  distinct 
matters:  1.  The  intellectual,  moral,  and  religious  training  of  the 
u  ard ;  2.  The  protection  and  management  of  his  property,  includ- 
ing his  maintenance;  3.  His  marriage.     .     .     . 

§  1309.  The  Same.  Management  of  Property. — The  court  wili 
exercise  a  constant  supervision  over  the  guardian  in  the  manage- 
ment of  the  ward's  property.  The  guardian  not  only  may,  but 
]iiust,  use  a  sound  discretion  in  applying  a  reasonable  amount  of 
the  income,  or  even,  if  necessary,  of  the  principal,  of  the  personal 
(^state  for  the  maintenance  and  education  of  the  infant  in  a  manner 
suitable  to  his  prospects  and  condition.^  ...  It  seems  to  be  a 
doctrine  sustained  by  a  preponderance  of  autliority,  that  a  court 
of  equity  has  no  power,  as  a  part  of  its  jurisdiction  over  infants, 
to  order  a  sale  of  the  infant's  real  estate  for  purpose  of  mainte- 
nance, education,  or  investment."  The  powers  and  duties  of  guard- 
ians in  their  management  of  the  property  of  infant  wards,  and  the 
powers  of  courts  to  direct  a  sale  of  their  lands,  are  so  much  regu- 
lated by  statutes  in  the  various  states,  that  these  general  rules  of 
the  purely  equitable  jurisdiction  can  have  little  practical  applica- 
tion throughout  the  United  States. 

§  1310.  Marriage. — The  English  courts  of  equity  exercise  a  very 
strict  and  stern  control  over  the  marriage  of  their  infant  wards. 
This  special  phase  of  the  jurisdiction  is  based  upon  the  notion 
that  a  suitable  settlement  should  always  accompany  a  marriage; 
and  especially  that  the  property  of  the  wife,  when  she  is  the  ward, 
should  be  settled  to  her  sole  and  separate  use.  The  marriage  of 
an  infant  ward,  even  where  the  parents  are  living.  mu.st  receive 
the  approval  and  sanction  of  the  court.  An  apprehended  mar- 
riage, of  which  the  court  does  not  approve,  will  be  restrained 
by  injunction.     A  marriage  of  an   infant  ward  without  obtaining 

'  The  amount  allowed  for  maintenance  will  depend  upon  the  circumstances 
of  each  case.  .  See  Pitts  v.  Rhode  Island  Hospital  Trust  Co.,  21  R.  I.  544, 
7!)  Am.  St.  Rep.  821.  4'5  Atl.  5.53.  48  L.  R.  A.  78.3  (allowance  made,  though 
will   directed  an  accumulation  of  income). 

A  father  is.  in  general,  bound  to  maintain  his  infant  children.  Where 
the  infants  have  property  of  their  own,  an  allowance  out  of  it  for  their  main- 
tenance will  not,  therefore,  be  ordinarily  allowed,  even  though  there  is  a 
provision  for  their  maintenance  in  the  will  or  deed  conferring  the  property; 
the  father,  if  able,  must  maintain  them  out  of  his  own  estate.  See  as  to  this 
rule  and  its  exceptions,  National  Valley  Bank  v.  Hancock.  100  Va.  101,  107, 
03  Am.  St.  Rep.  033,  938,  57   L.  R.   A.  720.  40  S.  E.  611.  and  cases  cited. 

-See  Nortliwestern  Guaranty  Loan  Co.  v.  Smith.  15  INlont.  101.  48  Am. 
St.  Rep.  r.fi2,  38  Pac.  224.  Contra,  see  Hale  v.  Hale,  14G  111.  227.  3:^  X.  K 
858.   20    L.    R.   A.   247.  and   cases  cited. 


"iSo  PEHSONS    OF    L.X.SOLND    MIND.  §   loll 

the  consent  of  the  court  is  a  gross  contempt,  and  will  be  pun- 
ished as  such,  although  the  marriage  itself  cannot  be  avoided. 
If  an  infant  female  ward  is  thus  married,  the  husband  and  all 
who  aided  in  procuring-  it  may  be  punished  by  fine  and  imprison- 
ment; and  the  husband  will  be  compelled  to  execute  a  settlement 
on  his  wife,  to  be  approved  by  the  court,  even  though  the  wife 
should  expressly  waive  her  right  to  such  settlement/  This  control 
over  the  marriage  of  wards,  if  it  ever  existed  in  theory,  has  be- 
come practically  obsolete  in  the  American  states;  it  is  not  in  har- 
mony with  our  social  habits,  customs,  and  modes  of  thought. 


SPXTION   II. 
PERSONS    OF    UNSOUND    MIND. 

ANALYSIS. 

§  1311.  Oripn  of  this  jurisdiction. 

§  1312.  Mode   of   exercising   the   jurisdiction   in   England. 

J?  1313.  .Jurisdiction    in    the    United    States. 

§  1314.  -lurisdictinn    in    cases    of    weak    and    unsoiuid    mind. 

§  1311.  Origin  of  This  Jurisdiction. — Whatever  be  the  correct 
theory  with  respect  to  the  jurisdiction  over  infants,  it  is  absolutely 
certain  that  the  corresponding  jurisdiction  over  the  person  and 
property  of  lunatics  and  idiots,  and  all  others  who  may  be  adjudi- 
cated non  compotes  mentis,  was  derived  by  delegation  from  the 
croAvn;  it  was  a  portion  of  the  king's  executive  power  as  parens 
patriae,  and  did  not  belong  to  the  court  of  chancery  by  virtue 
of  its  inherent  and  general  judicial  functions.  This  branch  of  the 
regal  authority  was  delegated  to  the  chancellor  as  the  personal 
representative  of  the  crown,  by  means  of  an  official  instrument 
called  the  Sign  Manual,  signed  by  the  king's  own  signature,  and 
sealed  with  his  own  privy  seal,  and  Avas  exercised  by  the  chan- 
cellor alone,  and  not  by  the  court  of  chancery.^  After  this  special 
jurisdiction  had  thus  been  exercised  in  any  particular  case,  by  ad- 
judicating an  individual  to  be  a  lunatic,  and  by  appointing  a  com- 
mittee of  his  person  and  property,  a  further  jurisdiction  then  arose 
in  the  court  of  rlutncery  to  supervise  and  control  the  official  con- 
duct of  the  committee:  but  this  supplementary  jurisdiction  of  the 
'■ourt  seems  to  have  been  a  part  of  its  general  authority  over  trusts, 
trustees,   and    fiduciary   persons.-     The   jurisdiction    in   matters   of 

J  See   Smith   v.    Smith.   3    Atk.    304. 

'Hamilton  v.  Traher,  78  Md.  2fi,  44  Am.  St.  Eep.  2.58.  27  Atl.  229. 
^'As    1o    maintenance,    see    In    re    Plenderleith     (1893),    3    CIi.    3.32     (creditors 
not  paiil   until    innnlic  is  jirovided   for). 

SO 


§  1314  EQUITY     JUKISPIIUDENCE.  786 

lunacy  and  all  the  proceedings  thereon  in  England  are  now  regula- 
ted by  statute." 

§  1313.  Jurisdiction  in  the  United  States. — It  necessarily  fol- 
lows from  its  origin  that  this  special  jurisdiction  over  the  persons 
and  property  of  lunatics  is  not  generally  possessed  by  the  courts 
of  equity  in  the  United  States  as  a  part  of  the  original  inherent  equi- 
table jurisdiction.  There  are  a  few  apparent  exceptions,  but  these  ex- 
ceptions in  realit}^  onh^  confirm  the  truth  of  my  statement.  In 
a  very  few  states  the  constitutions  or  statutes,  in  their  general 
grants  of  jurisdiction  to  courts  of  equity,  confer  jurisdiction  over 
lunatics,  idiots,  and  persons  non  compotes  mentis.  The  powers 
of  the  American  courts  are  conferred  and  regulated  by  statutes.  .  .  . 
They  extend  not  only  to  lunatics  and  idiots,  but  to  confirmed  drunk- 
ards, and  other  persons  who  are  so  non  compotes  mentis  that  they 
are  incapable  of  managing  their  own  affairs.^  AVhen  the  special 
statutory  jurisdiction  has  been  exercised,  a  person  has  been  ad- 
judged or  "found"  a  lunatic  or  otherwise  non  compos  mentis, 
and  a  committee  or  guardian  has  been  appointed,  the  general  juris- 
diction of  ecjuity  extends  over  such  committee  or  guardian,  for  the 
purpose  of  calling  him  to  an  account  of  his  trust,  in  the  same 
manner  as  over  all  other  strictly  fiduciary  persons. - 

§  1314.  Jurisdiction  in  Cases  of  Weak  or  Unsound  Mind. — The 
special  jurisdiction  above  described  is'  confined  to  persons  who  may 
be  and  are  adjudicated  or  found  to  be  lunatics,  idiots,  or  non 
compotes  mentis.  The  very  first  step,  in  order  that  the  court  may, 
through  a  committee,  control  the  person  or  property  of  the  partic- 
ular individual  is  a  proceeding  by  which  he  is  judicially  determined 
to  belong  to  the  status  of  lunatics  or  non  compos  mentis.  In  addi- 
tion to  this  peculiar  authority,  a  court  of  equity  may,  in  appro- 
priate cases,  in  pursuance  of  its  inherent  general  powers,  protect 
the  property  of  persons  of  weak  or  unsound  mind,  who  have  not 
been  and  who  even  cannot  be  judicially  "found"  non  compotes 
mentis.^  These  two  jurisdictions  are  wholly  distinct.  The  former 
is  special ;  the  latter  is  the  general  jurisdiction  of  equity  exercised, 
"not  by  reason  of  the  incompetency,  but  notwithstanding  the  in- 
competency." The  court  can  only  exercise  such  equitable  juris- 
diction as  it  could  under  the  same  circumstances  have  exercised 
at  the  suit  of  the  person  himself,  if  he  were  of  sound  mind. 

^See  IG  &  17  Vict.,  c.  70;  18  &  19  Vict.,  c.  13:  25  &  20  Vict.,  c.  80.  Also, 
Lunacy  Act  of  1890,  53  &  54  Vict.,  e.  5. 

^  For  a  brief  historical  sketch  of  the  jurisdiction  and  procedure  both  in 
England  and  in  New  York,  see  Hughes  v.  Jones,  IIG  N.  Y.  75,  15  Am.  Rt.  Rep. 
386,  22  N.  E.  44fi,  5  L.  R.  A.  632;  in  Maryland,  see  Hamilton  v.  Traber, 
78  McI.  26,  44  Am.  St.  Rep.  258,  27  Atl.  229. 

-■  See  ante,  §  1097. 

VBeall  V.  Smith.  L.  R.  9  Ch.  85,  91:  .Tones  v.  Lloyd.  L.  R.  IS  Eq.  265.  274.  275, 


PART   FOURTH. 

n-HE  EE^ilEDIES  AND  KE.MEDIAL  RIGHTS  WHICH  ARE  CON- 
FERRED BY  THE  EQUITY  JURISPRUDENCE. 


PRELIMINARY  SECTION. 

ANALYSIS. 

§   1315.  General    object. 

§   131G.  Classilication. 

§   1317.  Remedies    acting    in    rem    or    in    personam. 

§    1318.  Remedies  in   personam   beyond  the  territorial   jurisdiction. 

§1315.  General  Object. — The  general  nature,  kinds,  and  classes 
of  equitable  remedies,  both  those  belonging  to  the  exclusive  and 
to  the  concurrent  jurisdictions,  have  been  fully  described.^  The 
main  purpose  of  the  discussions  in  this  Part  Fourth  is  to  determine 
under  what  circumstances,  for  the  protection  of  Avhat  primary  rights 
and  interests,  legal  or  equitable,  on  the  occasion  of  what  wrongs 
or  violation  of  duty,  and  between  what  parties,  equity  will  exercise 
its  jurisdirtion  by  granting  either  those  remedies  which  are  pecu- 
liar to  courts  of  equity,  or  those  which  are  essentially  legal  in  their 
nature  and  are  administered  concurrently  by  courts  of  law  and  of 
equity.  In  other  words,  my  object  is  to  show  what  remedies  may 
be  conferred  by  equity,  and  ivlien  its  jurisdiction  will  be  exercised 
by  granting-  them.  The  entire  discussion  is  based  upon  the  general 
principles  and  doctrines  which  define  the  equitable  jurisdiction 
and  determine  its  exercise,  as  explained  in  a  previous  volume.- 

§  1316.  Classification. — The  classification  presented  in  the  former 
volume,  and  referred  to  in  the  preceding  paragraph,  was  intended 
merely  for  purposes  of  general  description,  and  in  order  to  present 
the  active  remedial  system  in  one  body.  For  the  discussions  of 
this  Part  Fourth  I  shall  adopt  the  following  classification,  by 
which  ail  equitable  remedies  are  collected  and  arranged  in  eight 
separate  groups:  1.  The  First  Group  contains  those  remedies  which 
are  purely  ancillary  and  provisional,  which  do  not  affect  any 
primary  right  nor  confer  any  nltimate  relief.^  2.  The  Second 
Group  consists  of  remedies  purely  preventive.-    3.  The  Third  Group 

^See  ante,   §§112-116,   13-1.    13,-,.   and    170-172. 

'See   pt.    1,   c.    1.   2. 

*  These  are  interpleader  and  receivers. 

-It    inchides   ininnctions   for   all    possible   purposes. 


§  1317  EQUITY     JL'KISPRUDEXCK.  "^SS 

consists  of  remedies  which  indirectly  establish  or  protect  interests 
and  primary  rights,  whether  those  interests  and  rights  are  legal 
or  equitable.'"  -4.  The  Fourth  Group  consists  of  remedies  by  which 
estates,  interests,  and  primary  rights,  either  legal  or  equitable,  are 
directly  declared,  established,  or  recovered,  or  the  enjoyment  there- 
of IS  fully  restored.*  5.  The  Fifth  Group  consists  of  remedies  by 
which  equitahle  ohligaiions  are  specifically  and  directly  enforced."* 
6.  The  Sixth  Group  consists  of  remedies  in  which  the  final  relief 
is  pecuniary,  but  is  obtained  by  the  enforcement  of  a  lien  or  charge 
upon  some  specific  property  or  fund.*^  7.  The  Seventh  Group  con- 
sists of  remedies  in  which  the  final  relief  is  wholly  pecuniary,  and 
is  obtained  in  the  for)n  of  a  general  pecuniary  recovery."  8.  The 
Eighth  Group  contains  certain  additional  remedies  which  have 
been  created  and  conferred  by  statute  in  several  of  the  states, 
and  which  therefore  do  not  belong  to  the  original  jurisprudence 
of  equity  nor  to  the  general  ecpiitable  jurisdiction.'^ 
§  1317.     Remedies  Acting  in  Personam  or  in  Rem.^ — 

"They  are  reformation  and  re-execution,  and  cancellation,  snrrendet  ujj  or 
discharge   of   instruments. 

^fhis  entire  group  contains  three  main  chisses :  1.  Suits  by  which  purely 
legal  estates  are  established,  and  the  enjoyment  thereof  is  recovered;  including 
assignment  of  dower;  establishment  of  disputed  boundaries;  partition  of  land, 
and  partition  of  personal  property.  2.  Suits  by  which  some  general  right, 
either  legal  or  equitable,  is  established;  including  bills  of  peace;  bills  quia 
timet;  quieting  title;  suits  to  establish  a  will:  suits  to  construe  a  will. 
.3.  Suits  by  which  some  pariicular  estate,  interest,  or  right,  legal  or  equitable, 
is  established;  including  statutory  suit  to  quiet  title;  removing  a  cloud  from 
title;  strict  foreclosure  of  a  mortgage  or  pledge;  redemption  of  mortgages  or 
pledges. 

^  This  group  contains  three  main  classes:  1.  Specific  performance  of  con- 
tracts. 2.  Specific  enforcement  of  obligations  arising  from  trusts.  3.  Specific 
enforcement  of  obligations  arising  from  relations  analogous  to  trusts;  includ- 
ing suits  against  fiduciary  persons;  suits  against  corporations  and  their 
olficers;    administration    suits  against  executors   and   administrators. 

"Embracing  forecluosure  of  mortgages  of  real  and  jx-rsonal  pro})erty  and 
of  pledges  by  judicial  sale:  enforcement  of  equitable  liens;  marshaling  of 
securities;  enforcement  of  the  equitable  contracts  of  married  women;  and  credi- 
tor's suits. 

'This  grou|)  contains  tlie  following  ])arti(ular  suits:  T5y  assignees  of  things 
in  action,  equitable  assignees  of  a  fund,  etc.;  by  persons  entitled  to  participate 
ill  a  common  fund:  for  contribution  in  general;  suits  growing  out  of  suretyship, 
for  exoneration,  contribution,  or  subrogation;  suits  growing  out  of  partnership; 
suits  for  an  accounting  in  general :   recovery  of  damages. 

Mn  this  statutory  group  should  be  placed  suits  for  divorce;  proceedings  in 
the  nature  of  an  inquisition  for  the  appointment  of  committees  over  lunatics, 
])ersons  of  unsound  mind,  and  habitual  drunkards;  statutory  suits  to  dissolve 
and  wind  up  cor])orations ;  or  to  remove  corporate  ollicers  for  cause,  or  for 
the  ap])ointment  of  olficers. 

M)n  this  subject,  see  ante.   S§  42S-4.31. 


789  INTKUrLKADKK.  §  ioi' 


FIRST   GROUP. 

REMEDIES  PURELY  ANCILLARY  AND  PROVISIONAL. 


CHAPTER   FIRST. 

INTERPLEADER. 

ANALYSIS. 

§  1319.  Description  of  tliis  group. 

§  1320.  General    nature   and   objects    of   interpleader. 

§  1321.  The    claims,    legal    or    equitable. 

§  1322.  Essential  elements. 

§  1323.  First.     The  same  thing,  debt,  or  duty. 

§  1324.  Second.     Privity    between    the    opposing    claimants. 

§  1325.  Third.     Plaintiff    a    mere    stakeholder. 

§  132G.  Fourth.     No    independent    liability    to    i^iic    claiinant. 

§  1327.  By   bailees,  agents,  tenants,   and   parties   to   contracts. 

§  1328.  Pleatlings  and  other  procedure. 

§  1329.  Interpleader  in  legal  actions  by  statute. 

§  1319.  Description  of  This  Group. — The  distinouishin^'  charac- 
teristic of  the  remedies  belonging  to  this  group  is,  that  they  deter- 
mine no  primary  rights,  and  grant  no  final  reliefs,  either  directly 
or  indirectly.  They  are,  in  fact,  instruments  and  means  by  which 
the  court  is  enabled  more  conveniently  and  perfectly  to  adjudicate 
upon  the  ultimate  rights  and  interests  of  the  parties,  and  to  award 
the  final  reliefs,  in  the  further  judicial  proceedings  to  which  they 
are  auxiliary,  and  of  which  they  are  really  the  preliminary  stage. 
These  remedies  are  therefore,  in  every  sense  of  the  terms,  ancillary 
and  provisional. 

§  1320.  Interpleader — General  Nature  and  Object. — 1  purpose  in 
this  chapter  to  descril)e  the  general  e(|uitable  jurisdiction  to  grant 
the  remedy  of  interpleader  independent  of  statute;  and  afterwards 
to  notice  briefly  the  modern  statutes,  some  of  which  may  perhaps 
have  enlarged  that  jurisdiction,  but  most  of  which  have  simply 
conferred  a  similar  jurisdiction  upon  courts  of  law.  to  be  exercised 
in  certain  kinds  of  legal   actions.'      Where   two   or   more   persons. 

'  Under  the  ancient  common  law.  the  relief  of  interpleader  was  allowed  in 
two  special  ca.ses  in  a  legal  action  by  a  court  of  law:  when  two  or  more  persons 
had  made  a  joint  bailment  and  then  brought  separate  actions  of  detinue  against 


§  1320  EQUITY     JURISPRUDENCE.  790 

whose  title  are  connected  by  reason  of  one  being  derived  from  the 
other,  or  of  both  being  derived  from  a  common  source,  claim  the 
/"jame  thing,  debt,  or  duty,  by  different  or  separate  interests,  from 
a  third  person,  and  he,  not  knowing  to  which  of  the  claimants  he 
ought  of  right  to  render  the  debt  or  duty,  or  to  deliver  the  thing, 
fears  he  may  be  hurt  by  some  of  them,  he  may  maintain  a  suit 
and  obtain  against  them  the  remedy  of  interpleader.  In  his  bill 
of  complaint  he  must  state  his  own  rights  and  their  several  claims, 
and  pray  that  they  may  interplead,  so  that  the  court  may  adjudge 
to  whom  the  thing,  debt,  or  duty  belongs,  and  he  may  be  indemnified. 
If  any  suits  at  law  have  been  brought  against  him,  he  may  also 
pray  that  such  proceedings  be  restrained  until  the  right  be  deter- 
mined.-    The  ob.jeet  of  the   suit   is,  that  the   conflicting   claimants 

the  depositary  for  Ihc  tliinsj  bailed;  and  when  the  thing  came  into  tlir  Iiolder's 
possession  by  linding,  and  two  or  more  persons  ehximing  to  be  owners  sued  Jiini 
in  separate  actions  of  detinue.  ^Modern  statutes,  English  and  American,  have 
enabled  courts  of  law  to  grant  a  similar  relief,  in  a  summary  manner,  in  certain 
legal  actions,  but  this  legislation  has  no  connection  with  the  ancient  common-' 
law  jurisdiction  above  mentioned. 

-This  description  is  taken,  with  some  additions  and  alterations  to  conform 
to  later  decisions,  from  Alitford's  p]quity  Pleading,  58,  59.  As  to  the  general 
nature  of  the  remedy,  see  Crawshay  v.  Thornton,  2  Mylne  &  C.  1,  2  Ames 
Eq.  ,lur.  18,  1  Keener  220:  J^rudential  Ass.  Co.  v.  Thomas,  L.  R.  3  Ch.  7-!, 
1  Keener  2S7 ;  Farley  v.  Blood,  :)0  N.  H.  354,  2  Ames  Eq.  Jur.  4:  Dorn  v. 
Eo\,  (il  N.  V.  2G4,  1  Keener  240;  Shaw  v.  Coster,  8  Paige  339,  35  Am.  Dec. 
690,  1  Keener  235;  Crane  v.  McDonald,  118  X.  Y.  ()48,  23  N.  E.  991,  1  Keener 
2(52;    Bassett   v.   Leslie,   123   N.   Y.  396,  25   X.   E.   386,   1    Keener  266,  Sliep.  319. 

Rdfionale  of  the  Remedy. — It  is  sometimes  su]>posed  that  the  remedy  of 
interpleader  is  allowed  to  avoid  the  risk  of  two  recoveries.  This  is  entirely  a 
mistaken  view.  If  a  party  has  in  any  way  made  himself  liable,  even  for  the 
same  demand,  to  two  claimants,  he  is  not  entitled  to  an  interpleader.  It  is  the 
essential  fact  that  he  should  actually  be  liable  to  only  one  of  the  claimants. 
The  true  rationale  of  interpleader  is,  that  the  party  thereby  avoids  the  risk  of 
being  vexed  by  two  or  more  suits.  Kvcn  though  there  is  no  danger  of  his  being 
compelled  to  pay  the  same  demand  twice,  the  danger  of  two  suits  against  him, 
with  the  consequent  trouble  and  expense,  is  the  sufficient  ground  for  the 
remedy:  Crawford  v.  Fisher,  1  Hare  436,  441;  Y'arborough  v.  Thompson, 
3  Smedes  &  M.  (^Nliss.)  291,  41  Am.  Dec.  626,  1  Keener  278.  In  Crawford  v. 
Fisher,  Wigrain,  V.  C,  said:  "The  oflice  of  an  interpleading  suit  is.  not  to 
protect  a  party  against  a  double  liahiUfii,  but  against  double  vexation  in  re- 
spect of  one  liability.  ff  the  circumstances  of  a  case  show  that  the  plaintiff 
is  liable  to  both  claimants,  that  is  no  case  for  interpleader.  It  is  of  the 
essence  of  an  interpleading  suit  that  the  ])laintifl'  shall  be  liable  to  one  only 
of  the  claimants;  and  the  relief  which  the  court  affords  him  is  against  the 
vexation  of  two  proceedings  on  a  matter  ^\■hich  may  be  settled  in  a  single 
suit."  The  supreme  object  of  an  interpleader  is  to  protect  the  plaintiff — the 
stakeholder — and  not  the  claimants  against  him;  to  protect  him  from  tht 
danger  and  vexation  of  two  opposing  suits  for  the  same  demand  by  those 
claimants,  while  he  is  ready  and  willing  to  pay  the  demand  to  the  one  who 
is  judicially   ascertained   to   be  entitled   to   it:      Farley  v.   Blood,  30  X.   IT.  354, 


^idl  INTERPLEADER.  i5  1321 

shall  litigate  the  matter  amoug  themselves,  without  involving  the 
stakeholder  in  their  controversy,  with  which  he  has  no  interest. 
It  is  plain,  therefore,  that  the  plaintiff  can  obtain  no  specific  relief. 
So  far  as  he  is  concerned,  upon  his  filing  the  bill,  and  surrendering 
up  the  thing  or  money  into  the  custody  of  the  court,  his  remedy 
is  exhausted  by  the  decree  that  the  defendants  do  interplead  with 
each  other,  and  that  he  be  freed  from  or  indemnified  against  their 
demands,  and  that  he  recover  his  costs;  with  the  result  of  their 
dispute  he  has  no  concern.  The  ground  of  the  jurisdiction  is 
plain.  The  party  seeking  the  remedy  is  exposed  to  the  hazard, 
vexation,  and  expense  of  several  actions  at  law  for  the  same 
demand,  while  he  is  ready  and  willing  to  satisfy  that  demand  in  fa- 
vor of  the  claimant  who  establishes  his  right  thereto.  For  this  lia- 
bility the  law  furnishes  no  adequate  remedy,  and  in  most  instances 
no   remedy   whatever. 

§1321.  The  Claims,  Legal  or  Equitable. — The  equitable  juris- 
diction exists,  although  both  or  all  the  conflicting  claims  against 
the  stake-holder  are  legaV  since  it  depends  upon  the  fact  that 
distinct  claims  are  made,  rather  than  upon  their  intrinsic  nature 
as  being  legal  or  equitable.  It  is  not  necessary,  however,  that  all 
the  claims  should  be  legal;  the  remedy  is  granted  when  one  of 
them  is  legal   and  the  other   equitable.-     Indeed,  if  one   or  more 

2  Ames  Eq.  Jur.  4.  Such  danger  must  be  real;  a  mere  suspicion  of  risk  will 
not  be  sufficient  to  support  a  bill:  Baltimore  &  O.  R.  Co.  v.  Arthur,  90 
N.  Y.  234,  2  Ames  Eq.  Jur.  13,  1  Keener  293.  That  the  risk  may  depend  upon 
a   doubtful   question   of   law,   see   Dorn   v.    Fox   and   Crane   v.   McDonald,    supra. 

Such  being  the  theory  of  the  remedy,  it  is  not  essential  that  any  suit  should 
have  been  actually  commenced  by  either  claimant  against  the  plaintiff:  Angell 
V.  Hadden,  15  Ves.  244,  1  Keener  214;  JMorgan  v.  Marsack,  2  Mer.  107,  1 
Keener  273;  Farley  v.  Blood,  30  N.  H.  354,  2  Ames  Eq.  Jur.  4.  It  is  enough 
that  the  conflicting  claimants  make  their  respective  claims  and  th'reaten  suit: 
Yarborough  v.  Thompson,  3  Smedes  &  M.  291,  41  Am.  Dec.  626,  1  Keener  278. 

That  the  plaintiff  cannot  interplead  claimants  who  have  reduced  their 
claims  to  judgments,  as  this  would  be  to  increase  instead  of  diminish  tlie 
number  of  suits,  and  because  of  the  rule  (post,  §  13B1 )  that  a  court  of 
equity  cannot  give  relief  when  the  party  might  have  made  defense  at  law, 
see  Yarborough  v.  Thompson,  supra,  and  Larabrie  v  Brown,  26  L.  J.  Rep.  Eq., 
N.  S.,  605,  1  Keener  284. 

'Lowndes  v.  Cornford,   18  Ves.  209. 

-Lowndes  v.  Cornford,  .supra;  Morgan  v.  Marsack,  2  ■\lor.  107,  1  Keener  273; 
Wright  V.  Ward,  4  Russ.  215,  1  Keener  217;  Hamilton  v.  Marks,  5  De  Gex 
&  R.  638,  1  Keener  280;  Prudential  Ass.  Co.  v.  Thomas,  L.  R.  3  Ch.  74,  1 
Keener  287;  Farley  v.  Blood,  30  N.  H.  354,  2  Ames  Eq.  Jur.  4.  In  England 
the  necessity  of  a  resort  to  equity  is  removed,  although  the  equity  jurisdiction 
is  not  at  all  affected,  by  the  statute  of  1  &  2  Wm.  IV.,  c.  58,  sec.  1,  as 
amended  and  enlarged  by  the  common-law  procedure  act  (23  &  24  Vict.,  c.  126, 
sec.  12).  which  enabled  a  court  of  law,  on  motion,  to  direct  what  amounts 
to  an  interpleader  in  actions  of  debt,  assumpsit,  trover,  and  dciiinic.  Tender 
the    present    system    of    procedure,    equitable    claims    may    be    adjudicated    upon 


g  1323  EQUITY    JUrj^PRUDKXCE.  7it2 

of  the  conflicting  claims  are  purely  equitable,  there  is  the  stronger 
reason  for  a  resort  to  the  equity  juri>diction;  and  prior  to  recent 
legislation  in  England  and  in  the  United  States,  such  a  resort  was 
indispensable  under  those  circumstances. 

§  1322.  Essential  Elements. — From  the  description  given  in  a 
previous  paragraph,  and  from  the  whole  course  of  authorities,  it  is 
clear  that  the  equitable  remedy  of  interpleader,  independent  of 
recent  statutorj^  regulations,  depends  upon  and  requires  the  exist- 
ence of  the  four  following  elements,  which  may  be  regarded  as  its 
essential  conditions:  1.  The  same  thing,  debt,  or  duty  must  be 
claimed  by  both  or  all  the  parties  against  whom  the  relief  is  de- 
manded; 2.  All  their  adverse  titles  or  claims  must  be  dependent, 
cr  be  derived  from  a  common  source;  3.  The  person  asking  the 
i-elief — the  plaintiff— must  not  have  nor  claim  any  interest  in  the 
subject-matter;  4.  He  must  have  incurred  no  independent  liability 
to  either  of  the  claimants;  that  is,  he  must  stand  perfectly  indiffer- 
ent betAveen  them,  in  the  position  merely  of  a  stake-holder.  As 
the  original  equitable  jurisdiction  is  founded,  to  a  great  extent, 
iqion  these  four  propositions,  I  shall  examine  them  separately. 

§  1323.  First.  The  Same  Thing,  Debt,  or  Duty. — The  same  thing, 
debt,  or  duty  must  be  claimed  by  both  the  parties  against  whom  the 
interpleader  is  demanded.^  This  requisite  results  from  the  very 
r.ature  and   object  of  the   remedy.     If  the  subject  in   dispute  has 

ill  an  interpleader  issue  connected  with  a  legal  action.  Analogous  statutes 
have   been   passed    in   many   American    states. 

^  Desborough  v.  Plarris,  5  De  Gex,  'SI.  &  G.  430.  4.5.5.  In  Glyn  v.  Duesbury, 
n  Sim.  139,  148,  Shadwell.  V.  C,  said:  '•IVhcre  the  chiiiiis  made  hij  fhe 
defendants  are  of  different  amounts,  thei/  can  never  be  identieal;  but  where 
they  are  the  same  in  amount,  that  circumstance  goes  far  to  determine  their 
identity.  The  amount,  however,  may  not  be  sufficient  of  itself  to  determine 
the  identity?  for  the  amount  may  be  the  same  and  the  debt  may  be  diff^^rent." 
This  dictum  was  approved  in  Pfister  v.  Wade.  56  Cal.  43.  In  my  opinion,  how- 
ever, that  portion  of  the  dictum  which  is  italicized — the  statement  that  claims 
of  dilferent  amounts  can  never  be  identical — is  incorrect:  it  seems  alike  o])- 
]iosed  to  principle  and  to  authority.  \^'here  both  defendants  claim  one.  single, 
undivided  debt,  technically  so  called,  the  statement  is  undoubtedly  true;  a 
ditlerence  in  their  amounts  would  be  fatal  to  their  identity.  But  it  is  clearly 
not  necessarily  so  where  the  claims  are  for  unliquidated  damages.  Where, 
for  example,  a  chattel  is  in  the  plaintifi''s  hands,  to  which  both  defendants 
claim  title,  they  do  not  sue  to  recover  the  article  itself,  but  allege  a  technical 
conversion,  and  seek  to  recover  damages — tlie  value  of  the  chattel.  Here 
the  claim  of  the  defendants  would  not  be  for  a  "thing."  nor  for  a  "debt."  but 
it  would  be  for  a  "duty" — a  chose  in  net  inn.  If  each  defendant  alleged  a 
diflerent  value,  and  claimed  a  difl'erent  amount  of  damages,  the  dufi/  asserted 
Mould  still  be  identically  the  same  in  each  demand.  Another  instance  of  dif- 
ference in  the  amounts  claimed  by  the  diffei'ent  defendants,  where  the  debt 
or  duty  may  still  be  the  same,  occurs  in  cases  where  a  fund  being  in  plaintiff's 
hands,  the  whole  of  it  is  claimed  by  one  defemlant,  and  parts  of  it  are  claimed 


']\)o  INTEKPLICADER.  §  lo"-'4 

a  bodily  existence, — is  a  thing. — there  can  be  no  doubt  nor  ques- 
tion as  to  the  identity.  The  difficulty  in  applying  the  rule  arises 
where  the  subject  is  a  chose  in  action;  and  then  the  identity  must 
be  determined  in  each  particular  case,  not  by  any  general  rules, 
but  by  the  nature,  constitution,  and  incidents  of  the  debt,  demand, 
or  duty  itself. 

§  1324.  Second.  Privity  between  the  Opposing  Claimants. — A 
second  requisite  is,  that  the  adverse  titles  of  the  claimants  must  be 
C(>nnected,  or  dependent,  or  one  derived  from  the  other,  or  botli 
derived  from  a  common  source.  It  is  not  every  instance  of  con- 
flicting' claims  against  a  person  for  the  same  thing,  debt,  or  duty 
v.liich  will  entitle  him  to  the  remedy  of  an  interpleader.  Where 
there  is  no  privity  between  the  claimants,  wdiere  their  titles  are  in- 
dependent, not  derived  from  a  common  source,  but  each  asserted 
as  wholly  paramount  to  the  other,  the  stake-holder  is  obliged. 
in  the  language  of  the  authorities,  to  defend  himself  as  weW  as 
he  can  against  each  separate  demand;  a  court  of  equit}'  will  not 
grant  him  an  interpleader.^ 

by  the  others.  With  regard  to  such  cases,  Christiancy,  J.,  said,  in  School  Dis- 
trict V.  Weston,  31  Mich.  85:  "Upon  the  great  weight  of  authority,  both 
English  and  American,  a  much  more  liberal  and  reasonable  nUe  has  been 
established,  and  bills  of  interpleader  have  been  frequently  maintained,  where 
the  several  claimants,  instead  of  claiming  the  whole  fund  or  matter  in  dispute, 
have  claimed  different  portions  of  the  fund,  when  the  aggregate  of  all  the 
claims  exceeded  the  full  amount  of  the  fimd ;  and  the  claimant  being,  as  in 
the  present  case,  virtually  a  stakeholder,  and  iinable  to  determine  to  whom 
or  in  what  proportions  the  payments  should  be  made."  In  tliis  case  the 
plaintiff  had  let  a  contract  for  building  a  school  house  for  a  specified  sum 
to  a  contractor,  and  portions  of  this  contract  price  were  claimed  by  suIj- 
contractors  and  material  men,  the  total  amount  of  their  claims  exceeding  the 
whole  contract  price.  Where  the  same  ]n-operty  had  been  taxed  '.o  the 
owner  in  two  counties,  in  some  cases  for  different  amounts,  in  others  for 
the  same  amount,  a  bill  of  interpleader  liy  the  owner  to  determine  whicli 
of  the  counties  was  entitled  to  the  tax  has  been  maintained:  See  Dorn  v.  Fox, 
r»l  N.  V.  2()4,  1  Keener  249;  but.  i>er  contra,  see  (Treene  v.  Mumford.  4  11.  1. 
:}].■?.  It  is  diflicult  to  perceive  how  the  tax  levied  by  two  different  cdunties, 
even  though  the  amount  of  each  tax  is  fhe  same,  is  one  and  the  same  debt 
or  duty,   so  as  to  sustain   a   bill   of   interpleader. 

^^'here  a  chose  in  action  is  the  subject-matter,  it  is  impossible  to  lay  down 
any  general  rule  bj'  which  its  identity  shall  be  determined.  The  circumstances 
of  each  case  can  alone  disclose  whether  the  same  debt  or  duty  is  claimed  by  all 
the  defendants.  See  National  Life  Ins.  Co.  v.  Pingrey,  141  Mass.  411,  2  Ames 
Kq.  .)ur.  .37,  1  Keener  2.'50  (insurance  company  issued  a  policy  on  the  sur- 
render of  a  previous  policy;  question  whether  tlie  company  has  incurre<l 
a  single  or  double  liability)  ;  Packard  v.  Stevens.  .58  N.  .T.  Eq.  489,  4G  Atl. 
2.50;    Hassett  v.   Leslie,   123  N.   Y.   300.  25  X.   E.   380,   1   Keener  200,   Shep.   319. 

in  oilier  cases,  one  defendant  claiming  rent  for  certain  premises,  and  the 
other  claiming  dainages  for  Iheir  use  and  occupation,  the  demands  were  held 
not  to   be  the  same:     -Tohnson   v.   Atkinson.   3   Anstr.   798,  2  .Ames   Eq.  Jur.    10. 

'Pearson    v.    Cardon.   2   Russ.    &    .M.    000.    009-012:    ('rawshav   v.   Thornton.   2 


§  13-^5  EQUITY     JUIJISPUUDEXCK.  T94 

§  1325.  Third.  Plaintiff  a  Mere  Stake-holder.— The  person  seek- 
ing the  relief  must  not  Juive  nor  claim  any  interest  in  the  subject- 
matter.  He  must  occupy  the  position  of  a  stake-holder.  He  must 
stand  entirely  indifferent  between  the  conflicting  claimants,  and 
be  ready  and  willing  to  surrender  the  entire  thing  in  dispute,  or 
to  pay  the  entire  debt,  or  render  the  entire  duty,  without  any 
charge,  deduction,  or  commission  as  against  the  one  rightfully  en- 
titled. He  cannot  mingle  up  a  demand  of  his  own  upon  the  prop- 
erty or  fund,  with  the  demand  that  the  other  persons  shall  inter- 
plead. As  soon  as;  the  decree  is  made  that  the  defendants  do  inter- 
plead, and  that  he  be  indemnified,  the  plaintiff  must  be  wholly 
without  the  controversy.'  ...  To  sum  up  the  doctrine,  the  plain- 

JMylnc  &  C.  1,  19-24,  2  Ames  Eq.  Jur.  18,  1  Keener  220;  Third  Nat.  Bank  v. 
Lumber  Co.,  132  Mass.  410,  2  Ames  Eq.  Jur.  27,  1  Keener  257.  This  doctrine, 
■\vliieh  was  left  somewhat  doubtful  by  the  previous  cases,  was  finally  settled  l)y 
the  decision  of  Lord  Broughham  in  Pearson  v.  Cardon,  and  of  Lord 
Cottenham  in  C'rawshay  v.  Thornton.  It  finds  its  most  frequent  ap])licati()n  in 
cases  of  a  tenant  interpleading  his  landlord  and  a  third  person  claiming 
under  paramount  title,  of  a  bailee  interpleading  his  bailor  and  an  adverse 
claimant  asserting  a  paramount  title,  and  of  an  agent  interpleading  his  principal 
and  an  adverse  paramount  claimant.  Examples  of  these  cases  are  given 
in  a   sul)sequeiit   paragraph. 

Such  being  the  doctrine,  it  is  a  manifest  imperfection  of  the  c(piity  jurisdic- 
tion that  it  should  be  so  limited.  A  person  may  be,  and  is,  exposed  to  danger, 
vexation,  and  loss  from  conflicting  independent  claims  to  the  same  thing,  as  well 
as  from  claims  which  are  dependent:  and  there  is  certainly  nothing  in  the  nature 
of  the  remedy  which  need  prevent  it  from  being  extended  to  both  classes  of  de- 
mands. See  Crane  v.  McDonald,  118  N.  Y.  048.  057,  2,3  N.  E.  9i11.  1  Keener  202. 
Jt  is  not  surprising,  therefore,  that  courts  have  sometimes  ignored  tliis 
doctrine  in  their  decisions,  or  have  been  ready  to  admit  exceptions  to  its 
operati(jii.  In  the  common-law  procedure  act  of  1800,  which  provides  for 
a  summary  interjileader  by  motion  in  legal  actions,  it  was  enacted  that 
the  order  of  interpleader  may  be  made  "though  the  titles  of  the  claimants 
have  not  a  common  origin,  but  are  adverse  to  and  independent  of  each  other." 
In  Attenborough  v.  London,  etc.,  Dock  Co..  L.  R.  3  G.  P.  D.  450.  which 
was  an  interpleader  proceeding  in  a  legal  action,  the  court  of  appeal  held 
tliat  the  statute  above  quoted  had  abrogated  this  doctrine  as  laid  down  in 
Crawshay  v.  Thornton,  at  all  events  in  the  proceedings  authorized  by  the 
statute.  Bra'mwell,  L.  J.,  wlio  was  one  of  tlie  commissioners  who  drew  up  the 
statute,  said  (p.  450)  :  "From  my  own  knowledge  as  one  of  the  common-lav\' 
commissioners,  1  can  say  that  it  was  intended  to  do  away  with  the  effect  of 
that"(Tecision."  Baggallay,  L.  J.,  a  very  eminent  equity  ]a\\->'er,  said  (p.  458)  : 
"I  may  go  further,  and  say  that,  in  my  opinion,  if,  after  the  common-law 
procedure  act  of  1800,  a  bill  of  interpleader  had  been  filed,  raising  facts  like 
tiiose  in  Crawshay  v.  Thornton,  any  .judge  of  the  court  of  chancery  would 
liave  felt  himself  no  longer  bound  by  the  somewhat  narrow  principle  laid  down 
by  Lord  Cotteniiam,  Init  would  have  acted  upon  the  fuller  powers  contained  in 
that    statute." 

MMitchell  v.  Hayne,  2  Sim.  &  St.  03.  2  Ames  Eq.  -Tur.  12.  1  Keener  292; 
Shaw  V.  Coster,  8   Paige  339,  35  Am.  Dec.   690,  1  Keener  235;   Baltimore  &  0. 


T95  INTKIiPLKADKR.  >^  Vo'ld 

tiff  can  only  obtain  the  remedy  of  an  interpleader;  and  the  cir- 
cumstances must  be  such  that  the  entire  rights  of  both  defendants 
to  the  thing,  fund,  debt,  or  duty  can  be  fully  adjusted  and  deter- 
mined in  the  one  suit. 

§  1326.  Fourth.  No  Independent  Liability  to  One  Claimant. — 
The  party  seeking  the  relief  must  have  incui'rcd  no  in(lei)cnd(Mit 
liability  to  either  of  the  clainmnts.  Such  an  independent  liability 
may  be  incurred  in  two  classes  of  cases:  1.  In  the  first  place,  the 
agent,  depositary,  bailee,  or  other  party  demanding  an  interpleader, 
in  his  dealings  with  one  of  the  claimants,  may  have  expressly  ac- 
knowledged the  latter 's  title,  or  may  have  bound  himself  by  con- 
tract, so  as  to  render  himself  liable  upon  such  independent  under- 
taking, Avithout  reference  to  his  possible  liability  to  the  rival  claim- 
ant upon  the  general  nature  of  the  entire  transaction.  Under  these 
circumstances,  as  the  plaintiff*  is  liable  at  all  events  to  one  of  the 
defendants,  whatever  maj-  be  their  own  respective  claims  upon  the 
subject-matter  as  between  themselves,  he  cannot  call  upon  these 
defendants  to  interplead.  He  does  not  stand  indiff'erent  between 
the  claimants,  since  one  of  them  has  a  valid  legal  demand  against 
him  at  all  events.^     Even   if  the   acknowledgment  or  promise   has 

R.  Co.  V.  Arthur,  90  X.  Y.  234.  2  Ames  Eq.  Jur.  13,  1  Keener  293;  Wing  v. 
Spaulding,  64  Vt.  83,  23  Atl.  615,  1  Keener  308;  Stone  v.  Reed,  152  Mass. 
179,  25  M.  E.  49,  1  Keener  304;  Crass  v.  Memphis  &  C.  R.  Co.,  96  Ala.  447, 
11  youth.  480,  1  Keener  311.  A  frequent  application  of  the  principle  is  fur- 
nished by  cases  where  the  plaintiff  claims  the  right  to  retain  a  portion  of  the 
fund  in  controversy  as  commission  or  charge  for  his  services  rendered  in 
connection  with  the  fund:  Mitchell  v.  Hayne.  supra  (auctioneer's  commission)  ; 
Baltimore  &  ().  R.  Co.  v.  Arthur,  supra  (freight  charges)  ;  Crass  v.  Memphis 
&  C.  R.  Co.,  supra  (carrier's  lien  for  freight).  It  necessarily  follows  from 
the  doctrine  of  the  text  that  if  the  plaintiff  expressly  denies  his  liability  in 
whole  or  in  part  to  one  of  the  defendants,  he  strikes  at  the  very  foundation 
of  the  remedy,  and  shows  that  he  is  not  indifferent:  Williams  v.  IMatthews, 
47  N.  J.  Eq.  196.  20  Atl.  261,  1  Keener  301. 

The  stakeholder — the  person  in  possession  of  the  thing  or  fund,  or  from 
whom  the  debt  or  duty  is  owing,  and  against  whom  two  or  more  conflicting 
claimants  assert  their  demands — must  necessarily  be  the  plaintiff.  Xo  in- 
terpleader suit  can  be  maintained  by  one  of  the  contestants  against  tlie  other 
contestant  and  tlio  stakeholdov:  See  Spragne  v.  West.  127  iMass.  471.  1 
Keener   255. 

Hirawshay  v.  Thornton.  2  INIylne  &  C.  1,  19-24.  2  Ames  Eq.  Jur.  18,  1  Keener 
220;  Jew  v.  Wood,  Craig  &  P.  185,  1  Keener  240;  Lindsay  v.  Barron,  60  E.  C. 
L.  291,  2  Ames  Eq.  Jur.  39;  Plalte  Valley  State  Bank  v.  Xational  Livestock 
Ass'n,  155  III.  250.  40  X.  E.  621.  2  Ames  Eq.  -lur.  29  (no  indejjendent  under- 
taking, within  the  meaning  of  the  texl ) .  Anotlior  instance  of  the  doctrine 
is,  where  the  plaintiff,  in  stating  the  case  in  his  bill,  is  obliged  to  admit 
himself  to  be  a  wrong-doer  to  either  one  of  tlie  defendants:  he  thus  shows  an 
independent  liability  to  that  defendant,  and  is  not  entitled  to  an  interpleader; 
Siingsby  v.  Boulton,  1  Ves.  &  B.  334.  2  Ames  Eq.  Jur.  33.  1   Keener  21f). 


§  13-)7  L-QUITY     JLliLSPKUDEXCK.  ^Dfi 

been  obtained  by  fraud  or  mistake,  the  right  of  the  party  thus 
deceived  to  be  relieved  in  equity  from  his  liability  cannot  be  con- 
sidered and  sustained  in  an  interpleader  suit.  2.  In  the  second  class 
()<■  cases,  the  independent  liability  of  the  plaintiff  to  one  of  the 
defendants  arises  from  the  very  nature  of  the  original  relation 
subsisting  between  them,  without  reference  to  any  collateral  ac- 
knowledgment of  title,  or  promise  to  be  bound.  The  most  important 
examples  of  such  relations  are  those  subsisting  between  a  bailee 
:ind  his  bailor,  an  agent  or  attorne}^  and  his  principal,  a  tenant  and 
his  landlord,  and  the  like.  In  pursuance  of  the  doctrine  above 
stated,  if  a  bailee  is  sued  by  his  bailor,  or  an  agent  by  his  princi- 
pi\\,  or  a  tenant  by  his  landlord,  and  at  the  same  time  a  third  person 
asserts  a  claim  of  title  adverse  and  paramount  to  that  of  the 
bailor,  principal,  or  landlord,  a  suit  of  interpleader  cannot,  in  gen- 
eral, be  maintained  against  the  two  contiicting  claimants,  since, 
from  the  very  nature  of  the  relation,  there  is  an  independent  per- 
sonal liability,  with  respect  to  the  subject-matter,  of  the  bailee 
to  his  bailor,  of  the  agent  to  his  principal,  and  of  the  tenant 
to   his   landlord. - 

§  1327.  By  Bailees,  Agents,  Tenants,  and  Parties  to  Contracts.— ^ 
The  general  doctrine  which  determines  the  rights  of  bailees,  agents, 
tenants,  and  contracting  parties  to  interplead  their  principals,  bail- 
ors, landlords,  and  the  like,  and  claimants  who  assert  antagonistic 
])aramount  titles,  has  been  stated  in  the  preceding  paragraph.^    The 

-  For  cases  illustrating  this  conclusion,  see  the  next  following  paragraph  aii<l 
notes  thereunder.  Since  the  cases  of  bailees,  agents,  and  tenants  are  so 
inipoi'tant,  and  since  the  chief  ditficulties  connected  with  the  remedy  of  inter- 
])leader  have  arisen  in  its  application  to  such  pei'sons,  I  have  given  a  separate 
])ui'agraph    to    the   examination    of   these   relations. 

'  1  have  collected  and  arranged  in  this  note  some  of  the  most  important 
cases  which  deal  with  such   classes  of  persons. 

Bailees  and  agents. — A  bailee  or  agent  cannot  maintain  an  interpleader 
suit  against  tiie  bailor  or  the  princii)al  and  a  thii'd  person  who  asserts  an 
independent,  antagonistic,  and  paramount  title  to  the  fund:  Ci'awshay  v, 
Thornton,  2  iMylne  &  C.  1,  li)-24,  2  Ames  Eq.  -lur.  IS,  1  Keener  220;  First  Xat. 
I»ank  V.  Bininger,  26  X.  J.  Eq.  34.5,  2  Ames  Eq.  Jur.  24.  On  the  other  hand, 
tiicre  are  cases  in  which  a  l)ailee  or  an  agent  nia\'  interplead  liis  bailor  or 
his  principal  with  third  persons  claiming  adversely.  Wherever  the  third 
person  claims  the  thing,  fund,  debt,  or  duty  from  the  bailee  or  agent  under  a 
title  derived  from  the  bailor  or  the  ])rincipal,  created  by  the  latter's  own 
act  subsequently  to  the  bailment  or  agency — such  as  his  assignment,  agree- 
ment, sale,  mortgage,  trust,  or  lien  given  by  him — the  bailee  or  agent  may 
compel  the  parties  to  interplead.  Theie  is  in  such  a  case  no  denial  of  the 
original  title;  the  only  dispute  is  concerning  the  eifect  of  the  subsequent  act, 
and  as  to  which  of  the  claimants  is  thereby  entitled  to  the  thing  or  fund. 
On  this  ground,  where  money  is  in  the  hands  of  an  agent,  and  the  principal 
has  created  a  lien  or  charge  on  the  fund,  in  favor  of  a  third  person,  in  respect 
to  which  a  controversj'  has  arisen,  the  agent  may  compel  his  ))rincipal  and  the 


79T  IXTKiU'LKADKK.  §  llj-.'l 

rule  is  not,  however,  of  universal  application.  There  are  cases  in 
Avhich  a  bailee,  agent,  or  tenant  may  interplead  his  bailor,  principal, 

other  claimant  to  interplead:  Wright  v.  Ward,  4  Russ.  215-220,  1  Keener  217. 
And  where  the  prineiijal  has  assigned  the  fund  in  the  agent's  hands,  or  the 
bailor  has  transferred  his  interest  in  the  thing  bailed:      Wright  v.  \\'ard. 

Tenant  and  landlord. — The  general  doctrine  is  familiar,  that  a  tenant  can- 
not deny  his  landlord's  title;  he  cannot  therefore  maintain  a  suit  for  inter 
pleader  against  his  landlord  and  a  stranger  who  claims  under  a  title  antago 
nistic  and  paramount  to  that  of  the  lessor:  Dungey  v.  Angove,  2  Ves.  304,  310. 
1  Keener  205;  Johnson  v.  Atkinson,  3  Anstr.  798,  2  Ames  Eq.  Jur.  10;  Craw- 
shay  V.  Thornton,  supra.  But  the  tenant  is  entitled  to  interplead  his  landlord 
and  an  opposing  claimant  wherever  there  is  some  privity  between  the  two — 
when  the  title  of  the  other  claimant  is  derivative  from  that  of  the  lessor — 
as,  for  example,  when  the  relation  of  mortgagor  and  mortgagee,  trustee  and 
cestui  que  trust,  assignor  and  assignee,  etc.,  has  been  created  between  the  two. 
In  such  a  case  the  tenant  does  not  dispute  his  landlord's  title:  Ikuigey  v. 
Angove,  supra:  Metcalf  v.  Hervey,  1  Ves.  iSr.  248,  1  Keener  203;  Cowtan  v. 
Williams,  9  \'es.  107,  2  Ames  Eq.  Jur.  8,  1  Keener  213;  Johnson  v.  Atkinson, 
supra. 

Parties  to  contracts. — As  a  general  rule,  where  A  and  B  are  bound  by  ex- 
press contract,  A  cannot  maintain  an  interpleader  suit  against  B  or  a  person 
iiolding  or  claiming  under  him,  and  a  stranger  who  asserts  and  claims  under 
an  antagonistic  and  pai'amoimt  title.  A  is  under  an  independent  liability 
to  B:  Ante,  §  1320.  On  the  other  hand,  as  in  cases  of  bailee,  agents,  and 
tenants,  a  party  to  a  contract  may  interplead  his  co-contractor  and  dthci- 
])ersons  in  privity  with  him.  or  distinct  claimants  all  of  whom  are  in  privity 
with  his  CO— contractor — that  is.  may  interplead  his  co-contractor  and  persons 
who  derive  their  title  under  him,  or  several  claimants  all  of  whom  thus  hold 
by  derivative  title.  As  example:  One  owing  a  sum  of  money  under  a  contract 
may  interplead  the  legal  assignee  of  his  co-contractor  with  one  claiming 
the  fund  either  l)y  equitable  assignment  from  the  co-contractor  or  by  attach- 
ment levied  upon  the  fund:  Crane  v.  McDonald.  118  N.  Y.  648,  23  N.  E. 
991.  A  vendor  of  land  may  interplead  the  husband  of  the  deceased  vendee 
and  her  heirs,  where  both  claimed  to  be  entitled  to  a  conveyance:  Farley 
v.  Blood.  30  N.  H.  354.  2  Ames  Eq.  Jur.  4.  Insurance  companies  may  com])('l 
opposing  claimants  of  the  insurance  money  to  interplead  when  they  claim  by 
assignment  from  the  insured,  or  by  mortgage,  or  by  attachment,  etc. — that  is. 
when  the}'  claim  derivatively:  Hamilton  v.  Marks,  5  De  Gex  &  8.  038.  1 
Keener  280:  Prudential  Assur.  Co.  v.  Thomas,  L.  R.  3  Ch.  74.  1  Keener  287. 
A  common  class  of  interpleader  suits  is  that  where  a  bank,  holding  the  relation 
of  debtor  to  its  depositor,  interpleads  the  depositor  and  one  claiming  under  liiiii. 
or  two  opposing  claimants  under  the  same  depositor:  Platte  Valley  Slate 
Bank  v.  National  Livestock  Bank,  155  111.  250,  40  N.  E.  021,  2  Ames  Eq.  Jur. 
29:  but  if  one  of  the  claimants  asserts  a  title  superior  to  that  of  the  de- 
positor, interpleader  is  not  allowed:  Third  Nat.  Bank  v.  Lumber  Co..  132 
Mass.  410.  2  Ames  Eq.  Jur.  27,  1  Keener  257.  Independently  of  statute,  it 
has  generally  been  held  that  a  sheriti'  levying  on  good.s  by  execution  against  A. 
which  are  claimed  by  B  to  be  his  property,  cannct  compel  the  execution 
creditor  and  B  to  interplead:  Slingsby  v.  P>ou!ton,  1  Ves.  &  B.  334.  2  Ames 
Eq.  Jur.  33.  1  Keener  216:  Shaw  v.  Coster.  8  Paige  339.  35  Am.  Dec.  690, 
1  Keener  235.  Nor  can  the  sherilV  compel  tiie  opposing  claimants  of  a  surplus 
in    his    hands    after    satisfying    an    execution    to    interplead;    such    claims    van 


5j  13-38  EQUITY     JlRISl'lIUDEXCK.  T98   • 

or  landlord,  and  a  third  person  setting  np  an  opposing  claim  to 
the  thing,  fund,  or  duty.  These  cases  may  be  described  by  one 
general  formula,  as  those  in  which  the  title  of  the  opposing  claim- 
ant is  derivative  under,  and  not  antagonistic  and  paramount  to.  that 
of  the  bailor,  principal,  or  landlord.  An  interpleader  is  allowed 
wherever  the  adverse  claim  originates  from  some  act  of  the  bailor, 
principal,  or  landlord,  done  or  suffered  after  the  commencement 
of  the  bailment,  agenc}^,  or  tenancy,  and  causing  a  dispute  as  to  , 
A\hieh  of  the  parties  is  entitled  to  the  thing,  fund,  or  duty.  The 
claim  of  the  third  person,  instead  of  being  under  an  independent, 
antagonistic,  paramount  title,  must  be  made  under  a  title  derived 
from  that  of  the  bailor,  principal,  or  landlord;  it  must  acknowledge, 
and  not  deny,  such  original  title. 

§  1328.  Pleadings  and  Other  Procedure. — The  bill  of  complaint 
must  contain  allegations  which  show  that  all  of  the  requisites 
entitling  the  plaintiff'  to  the  remedy  exist  in  the  case.  It  must  al- 
lege positively  that  conflicting  claims  to  sul)stantially  the  same 
thing,  fund,  debt,  or  duty  are  set  up  by  the  defendants;  that  plain- 
tiff' claims  no  interest  in  the  subject-matter;  that  he  is  indiff'erent 
between  the  claimants,  and  is  ready  and  willing  to  deliver  the  thing 
or  fund,  or  pay  the  debt,  or  render  the  duty  to  the  rightful  claim- 
ant, but  that  he  is  ignorant  or  in  doubt  which  is  the  rightful  one, 
and  is  in  real  danger  or  hazard  by  means  of  such  doubt,  from  their 
conflicting  demands.^  The  bill  need  not  show  an  apparent  title 
in  either  of  the  defendants.  On  the  contrary,  if  the  bill  should 
show  that  plaintiff'  was  fully  informed  of  the  defendant's  rights 
and  of  his  own  liability,  or  if  it  should  show  that  one  of  the  de- 
fendants was  certainly  entitled,  on  the  facts  alleged,  to  the  thing, 
debt,  or  duty,  in  either  case  it  would  be  demurrable:  there  would 
be  no  ground  for  an  interpleader.-  It  is  the  settled  practice  that 
the  bill  of  complaint  must  be  accompanied  by  an  affidavit  of  the 
plaintiff,    stating   that   the   suit   is   not   brought    in    collusion    with 

1)0  adjusted  by  tlie  court:  Parkev  v.  Barker,  42  X.  H.  78.  77  Am.  Dec.  780. 
But  see  Child  i^  Mann,  L.  R.  3  Eq.  806,  2  Ames  Eq.  Jur.  35.  1  Keener  240. 
Statutes  in  England  and  in  many  of  the  F-tates  have  authorized  the  sheriff  to 
interplead   the   claimants   of   property   seized    by   him   under   process. 

'Farley  v.  Blood,  30  N.  H.  354,  2  Ames  Eq.  Jur.  4;  Killian  v.  Ebbinghaus, 
no  r.  8.  568,  4  Sup.  Ct.  232,  28  L.  ed.  246,  2  Ames  Eq.  Jur.  47.  I  Keener  295: 
Crane  v.  McDonald.  118  X.  Y.  648,  654.  23  X.  E.  991,  1  Keener  262;  Stone  v. 
Reed,   152  Mass.    179,   25  X.  E.  49,   1   Keener  304. 

-Crass  V.  Memphis  &  C.  R.  Co..  96  Ala.  447.  11  South.  480,  1  Keener  311; 
Bassett  v.  Leslie.  123  X.  Y.  396.  25  X.  E.  386,  1  Keener  266,  Shep.  319; 
Shaw  V.  Coster.  8  Paige  339.  35  Am.  Dec.  690.  1  Keener  235.  And  if  the 
])laintiif  denies  liis  liability  to  either  of  the  defendants,  he  is  not  entitled 
to  the  remedy;  he  destroys  tlie  very  foimdation  on  which  it  rests:  ^McHenry 
V.  Hazard,  45  X.  Y.  580,  2  Ames  Eq.  .Jur.  118. 


1^99  IMKin'I.KADKlL.  §  l:)-!) 

either  of  the  defeudauts;  and  the  oinissiou  of  such  affidavit  Jiiay 
generally  be  taken  advantage  of  by  demurrer.^  The  plaintiff'  must 
also  bring  or  pay,  or  offer  to  bring  or  pay,  the  entire  thing,  fund, 
or  money  in  controversy  into  court;  an  omission  to  do  so  renders 
the  bill  demurrable.*  If  the  bill  was  properly  filed,  and  if  the 
plaintiff*  has  acted  in  good  faith,  he  is  generally  entitled  to  his  costs 
out  of  the  fund  in  controversy,  which  costs,  as  between  the  de- 
iiendants,  must  ultimately  be  paid  by  the  unsuccessful  party.'' 

§1329.  Interpleader  in  Legal  Actions. — In  England  and  in  many 
of  the  American  states  a  summary  mode  of  interpleader  by  motion 
and  order  in  certain  legal  actions  is  authorized.^  These  statutes 
substantially  provide  that  in  actions  specified  the  defendant  may 
show  by  affidavit  that  the  same  thing  or  money  is  claimed  by  an- 
other person  besides  the  plaintiff';  that  he  has  sued  or  threatens  to 
sue ;  that  defendant  is  not  in  collusion  with  him ;  and  that  defendant 
is  ready  and  willing  to  bring  the  thing  or  money  into  court.  The 
court  on  motion  may  order  such  claimant  to  be  substituted  as  de- 
fendant in  the  action  in  place  of  the  original  defendant.  It  is  uni- 
versally held  that  these  statutes  do  not  at  all  limit  nor  affect  the 
equitable  jurisdiction  by  suit;  they  merely  furnish  another  special, 

=■  Hamilton  v.  Marks,  5  De  Gex  &  S.  638,  1  Keener  280;  Farley  v.  Blootl, 
30  N.  H.  354,  2  Ames  Eq.  Jur.  4.  The  plaintiff's  affidavit  is  conclusive;  de- 
fendants cannot  contradict  it,  even  though  the  plaintifi'  has  filed  supplemental 
affidavits:  Stevenson  v.  Anderson,  2  Ves.  &  B.  407,  2  Ames  Eq.  Jur.  4.3,  1 
Keener  270. 

*It  was  held  in  Farley  v.  Blood,  30  K.  H.  354,  2  Ames  Eq.  Jur.  4,  that  in  a 
suit  concerning  the  defeiulants'  rights  to  a  conveyance  under  a  land  contract, 
the  plaintifi"  must  ofl'er  to  convey,  and  must  have  the  deeds  executed  ready 
for  delivery. 

*Co^^•tan  v.  Williams,  9  Ves.  107,  2  Ames  Eq.  Jur.  8,  1  Keener,  213:  Farley 
V.  Blood,  30  N.  H.  354,  2  Ames  Eq.  Jur.  4. 

Bill  in  the  nature  of  a  hill  of  interpleader. — A  "bill  in  the  nature  of  a 
bill  of  interpleader"  is  one  in  which  the  complainant  seeks  some  relief  of 
an  equitable  nature  concerning  the  fund  or  other  subject-matter  in  dispute, 
in  addition  to  the  interpleader  of  conflicting  claimants;  as,  for  exami)le, 
the  redemption  of  a  mortgage  or  other  encumbrance  on  property  where  tliere 
are  conflicting  claimants  to  the  debt  secured.  The  complainant  is  not  required, 
as  in  strict  interpleader,  to  be  an  indifferent  stakeholder,  without  interest, 
in  the  subject-matter.  it  is  essential,  however,  that  the  facts  on  wliidi 
he  relies  entitle  him  to  equitable,  as  distinguished  from  legal,  relief:  he  is 
not  permitted,  under  the  guise  of  a  bill  in  (>(|Hity.  to  litigate  a  i)urcly  legal 
claim  or  interest  in  the  subject-matter:  Killian  v.  Ebbinghaus,  110  U.  f^. 
568,  4  Sup.  Ct.  232,  28  L.  ed.  246.  2  Ames  Eq.  Jur.  47,  1  Keener  295;  Aleck 
V.  Jackson.  49  N.  J.  Eq.  507.  23  Atl.  760.  2  Ames  Eq.  Jur.  45;  Crass  v. 
Memphis  &   ('.    R.   Co.,  06  Ala.   447.   11    Soutli.   480,    1   Keener  311. 

^  The  English  statute  of  1  &  2  Wm.  IV.,  c.  58.  sec.  1,  allowed  this  proceed- 
ing in  actions  of  assumpsit,  debt,  trover,  and  detinue.  For  the  amendment 
made  by  the  common-law  procedure  act  of   1860,   see  ante,  note  under   §  1324, 


§  lo-;?l»  EQUITY     J  UiaSPIiUDEXCi:.  Sl»0 

cumulative,  and  concurrent  remedy.  The  ordinary  type  of  these 
statutes  does  not  alter  the  settled  doctrines  concerning  interpleader. 
The  statutory  remedy  is  a  mere  substitute  for  the  equitable  rem- 
edy by  suit,  in  the  kinds  of  actions  to  which  it  applies,  and  is  gov- 
t'lened  by  the  same  rules."  Of  course,  the  statutes  may  change 
the  equitable  doctrines;  may  enlarge  their  scope  of  operation;  and  a 
few  of  them  may  have  doubtless  produced  this  effect,  as  in  the 
clauses  introduced  by  amendment  into  the  statutes  of  England  and 
California,  already  noticed." 

-JSlaney  v.  Sidney,  14  Mees.  &  W.  800,  2  Ames  Eq.  -lur.   11. 
'  See  ante,  note  under  §  1324. 


SOI  RECKIVEUS.  5  looO 


CHAPTER   SECOND. 

RECEIVERS. 

ANALYSIS. 

§  1330.  Definition,  general  nature,  and  objects. 

§  1331.  The  appointment   discretionary. 

^§   1332-1335.  Cases  in  which  a  receiver  may  be  appointed. 

§  1332.  First  chiss. 

§  1333.  Second   class. 

§  1334.  Third  class. 

§  133.5.  Fourth   class. 

§  1336.  Their   ])0\vers,   rights,   duties,   and   liabilities. 

§  1330.  General  Nature  and  Objects. — I  purpose  in  this  chap- 
ter to  give  a  mere  sketch  of  the  general  doctrines  concerning  this 
peculiar  subject.^  A  receiver  is  a  person  standing  indifferent  be- 
tween the  parties,  appointed  by  the  court  as  a  quasi  officer  or  repre- 
.«!cntative  of  the  court,  to  hold,  manage,  control,  and  deal  with  the 
property  which  is  the  subject-matter  of  or  involved  in  the  contro- 
versy, under  the  direction  of  the  court,  during  the  continuance  of 
the  litigation,  either  where  there  is  no  person  entitled  competent 
to  thus  hold  it, — as.  for  example,  in  the'  case  of  an  infant,  or  in  the 
interval  before  an  executor  or  administrator  of  a  deceased  owner 
is  appointed;  or  where  two  or  more  litigants  are  equally  entitled, 
but  it  is  not  just  and  proper  that  either  of  them  should  retain  it 
luider  his  control.- — as,  for  example,  in  some  suits  between  partners; 
or  where  a  person  is  legally  entitled,  but  there  is  danger  of  his 
misapplying  or  misusing  it. — as,  for  example,  in  some  suits  against 
an  executor  or  administrator,  or,  under  some  particular  circum- 
stances, in  .suits  for  the  enforcement  of  a  mortgage;  or  he  is  ap- 
pointed in  like  manner  and  under  like  circumstances  for  the  pur- 
pose of  carrying  into  efiPect  a  decree  of  the  court  concerning  the 
property, — as,  for  example,  a  decree  for  the  winding  up  and  s(M- 
tlement  of  a  corporation,  or  the  decree  in  a  creditor's  suit.- 

'  The  subject  of  receivers  has  come  to  be  one  of  great  iiiiporlance.  owing 
especially  to  its  vastly  increased  application  of  late  in  the  winding  up  of 
corporations  both  in  England  and  in  this  country.  The  remedy  is  so  peculiar, 
and  the  rules  regulating  it  in  all  its  phases  and  ajiplications  are  so  special, 
that  my  limits  of  time  and  space  will  only  jievmit  a  meager  statemerd  of  i(s 
most  general  doctrines. 

^  Often  cited  definitions  of  (he  nature  of  tlie  receiver's  office  are  found  in 
51 


I  1332  EQUITY     JURISl'KUDEXCE.  ''Oi 

§  1331.  The  Appointment  Discretionary. — The  appointment  of  a 
receiver  is,  as  a  general  rule,  discretionary/  The  discretion  is  not 
arbitrary  or  absolute;  it  is  a  sound  and  judicial  discretion,  taking 
into  account  all  the  circumstances  of  the  case,  exercised  for  the 
purpose  of  promoting  the  ends  of  justice,  and  of  protecting  the 
rights  of  (///  the  parties  interested  in  the  controversy  and  the  sub- 
ject-matter, and  based  upon  the  fact  that  there  is  no  other  adequate 
remedy  or  means  of  accomplishing  the  desired  objects  of  the  judi- 
cial proceeding.  One  of  the  most  material  circumstances,  without 
which  the  court  would  hardly  make  the  appointment,  is  the  reason- 
able probability  that  the  plaintiff  asking  for  a  receiver  will  ultimate- 
ly succeed  in  obtaining  the  general  relief  sought  for  by  his  suit - 

§  1332.     Cases  in  Which  a  Receiver  may  be  Appointed. — As  stated 

tlie  leading  cases:  Booth  v.  Clark,  17  How.  322,  331,  15  L.  ed.  1G4;  Beverley  v. 
Brooke,  4  Gratt  (Va.),  187,  208;  Mays  v.  Rose,  Freem.  Ch.  (Miss.)  718, 
tShep.   32. 

^  The  discretion  is  not  so  absolute  that  it  may  not  be  reviewed,  and  its 
exercise,  if  improper,  reversed:  Le  fSociete  Francaise  v.  Dist.  Court,  53  Cal. 
495;  Milwaukee,  etc.,  R.  R.  v.  Soutter,  2  Wall.  521. 

-In  Owen  v.  Homan,  3  :Macn.  &  G.  378,  412,  allirmed  4  H.  L.  Cas.  997,  Shep. 
324,  the  court  said:  '"It  is  unnecessary  to  do  more  than  to  state  that  the 
granting-  a  receiver  is  a  matter  of  discretion  to  be  governed  by  a  view  of  the 
wliole  circumstances  of  the  case;  one  most  material  of  which  circumstances  is 
the  probability  of  the  plaintiff  being  iiltimately  entitled  to  a  decree."  In  Bain- 
brigge  v.  Baddeley,  3  ]Macn.  &  G.  413,  419,  the  court,  speaking  of  the  general 
grounds  for  the  appointment  of  a  receiver,  said:  "There  are,  I  apprehend, 
two  grounds,  and  two  only:  1.  That  there  is  a  reasonable  probability  of  suc- 
cess on  the  part  of  the  plaintiff;  and  2.  That  the  property,  the  subject  of  the 
suit,  is  in  danger."  In  Blondheim  v.  Moore,  11  Md.  3(55,  Shep.  321,  the  following, 
rules  controlling  the  exercise  of  the  discretion  were  laid  down,  which  have  been 
frequently  quoted  as  a  correct  generalization:  "1.  Tliat  the  power  of  appoint- 
ment is  a  delicate  one,  and  is  to  be  exercised  with  great  circumspection; 
2.  That  it  nuist  appear  the  claimant  has  a  title  to  the  property,  and  the 
court  must  be  satisfied  by  aflidavit  that  a  receiver  is  necessary  to  preserve 
tlie  property;  3.  That  tliere  is  no  case  in  which  the  court  ajipoints  a  receiver 
merely  because  the  measure  can  do  no  harm:  4.  That  fraud  or  inuninent  dan- 
ger, if  the  interinetliate  possession  should  not  be  taken  by  the  court,  must 
be  clearly  proved;  and  5.  That  unless  the  necessity  be  of  the  most  stringent 
character,  tlie  court  will  not  appoint  a  receiver  until  the  defendant  is  fii'st 
heard  in  response  to  the  application."  These  rules,  however,  must  be  taken 
with  some  reservations;  they  are  certainly  too  strong  to  be  of  universal  ap- 
plication, especially  the  fourth.  There  are  classes  of  cases  in  which  a  receiver 
is  appointed  almost  as  a  matter  of  course,  although  no  fraud  nor  imminent 
danger  is  proved.  See,  on  the  general  matter  of  discretion.  Mays  v.  Rose. 
Freem.  Ch.  (Miss.)  703,  Shep.  322;  American  Biscuit,  etc.,  Co.  v.  Klotz,  44 
Fed.  721,  H.  &  B.  891  (will  not  aid  improper  or  illegal  scheme)  ;  Simmons 
Hardware  Co.  v.  Waibel,  1  S.  Dak.  488,  36  Am.  St.  Rep.  755,  47  N.  W.  418, 
814;  11  L,  R.  A.  267,  H.  &  B.  817;  Bank  of  Florence  v.  U.  S.  S.  &  L.  Co.,  104 
A\a..  297,  16  South.  110,  H.  &  B.  897  (as  to  reasonable  probability  of  plain- 
■titr's  success) . 


803  REC!i:iVERS.  §  1333 

i:;  a  previous  parao-raph,  the  cases  in  which  a  receiver  may  be  np- 
pt>inted,  subject  to  the  general  rules  regulating  the  exercise  of 
the  judicial  discretion,  may  be  reduced  to  four  general  classes. 
The  tirst  class  contains  those  cases  where  there  is  no  person  enti- 
tled to  the  property  who  is  at  the  same  time  competent  to  hold  and 
manage  it  during  the  judicial  proceeding.  In  instances  of  this 
class  a  receiver  is  appointed  more  readily  and  without  proof  of 
imminent  danger,  perhaps,  than  in  any  other.  It  includes, — 1.  In- 
fants' estates.^  A  court  of  equity  exercises  control  over  the  prop- 
erty of  its  infant  ward,  where  there  is  no  trustee,  by  means  of  a 
receiver,  even  though  there  is  a  guardian.  2.  Lunatics'  estates. 
The  control  of  the  court  over  the  property  of  a  lunatic  is  ordinarily 
oxereised  by  means  of  a  committee ;  but  instead  of  a  committee, 
and  especially  where  no  person  will  act  as  a  committee,  the  court 
may  appoint  a  receiver.-  3.  Estates  of  decedents.  During  the  litiga- 
tion concerning  the  admission  of  a  will  to  probate,  and  during  the 
interval  before  an  executor  or  administrator  is  appointed,  a  court 
of  equity  has  power  to  ai)point  a  receiver  of  the  personal  property 
a  lid  of  the  rents  and  profits  of  the  real  estate,  where  there  is  any 
danger  of  their  loss,  misuse,  or  misapplication.  The  necessity  of 
such  a  receiver  has  been  greatly  lessened  by  modern  statutes  au- 
thorizing the  probate  court  to  appoint  an  administrator  ad  litem, 
and  enlarging  his  powers."' 

§  1333.  The  Same.  Second  Class. — The  second  class  of  cases 
is  leased  upon  the  fact  that  all  of  the  parties  are  equally  entitled 
to  the  possession  of  the  property  w^hich  is  the  subject-matter  of 
the  controversy,  but  it  is  not  just  and  proper,  from  the  nature  of 
the  dispute  and  of  their  relations  with  each  other,  that  either  one 
of  them  should  be  allowed  to  retain  possession  and  control  during  the 
litigation.  While  the  foundation  of  the  remedy  is,  of  course,  the 
danger,  yet  it  is  not  always  essential  that  there  should  be  any  ele- 
ment of  actual  fraud  or  breach  of  trust.  The  most  important  in- 
stances which  do  or  may  belong  to  this  class  are:    1.  Suits  between 

'CJardner  v.  Blane  1  Hare  381;  Butler  v.  Freeman,  Amb.  301,  303;  Duke 
of  Beaufort  v.  Berty,  1  P.  Wins.  703.  The  main  reason  for  appointing  a 
receiver,  in  the  absence  of  a  trustee,  was  that  the  guardian  at  common  law 
had  not  full  power  of  control  and  management.  The  necessity  of  a  receiver 
in  sucli  cases  may  have  been  obviated  in  many  states  by  statutes  enlarging 
the    ]K)W('rs    of   guardians. 

-  See  ante.  S  1312,  as  to  appointment  of  committees. 

■'While  this  jurisdiction  is  well  settled,  the  recent  English  decisions  holil 
that  it  will  not  be  exercised  if  tlie  probate  court  has  already  appointed 
an  administrator  ad  litem;  but  if  no  such  temporary  administrator  has  been 
a])pointed,  the  coui't  of  equity  will  still  n])))oint  a  receiver:  Whitworth  v. 
Wliyddon.  2  Macn.  &  CJ.  52,  55;  Veret  v.  Duprez,  L.  R.  6  Eq.  320:  Parkin  v. 
.Seddons,  L.   Pv.    10   Eq.   34. 


§1334  EQUITY     JL'ltLSPnUDEXCE.  804 

partners/  In  suits  for  a  dissolution  or  winding  up  of  a  partner- 
ship, and  even  in  some  very  special  cases  without  a  dissolution,  the 
court  may  appoint  a  receiver  of  the  firm  assets,  when  there  is 
any  misconduct  on  the  part  of  the  defendants,  and  even,  perhaps, 
wh.ere  the  partners  themselves  are  wholly  unable  to  agree  as  to 
the  management  of  the  property  and  the  settlement  of  the  partner- 
ship affairs.  The  jurisdiction  is,  however,  always  exercised  with 
great  carefulness  and  caution.  2.  In  suits  for  partition  between 
c«-owners.-  In  suits  between  co-owners  of  mines  and  collieries  the 
I^uglish  courts  grant  a  receiver  upon  the  same  grounds  and  under 
the  same  circumstances  as  in  those  between  partners;  but  in  all  or- 
dinary cases  of  partition  between  legal  co-owners  of  land,  a  re- 
ceiver is  not  generally  appointed  unless  some  of  the  parties  are 
in  sole  possession,  to  the  exclusion  of  the  others.  3.  In  suits  be- 
tween confiieting  claimants  of  land,  especially  between  parties 
claiming  under  legal  titles,  a  receiver  will  not  ordinarily  be  aj)- 
pointed.  The  remedy',  however,  may  be  granted  under  special 
cii'cumstances,  in  cases  of  gross  fraud,  or  great  danger,  or  whei-e 
possession  is  maintained  by  violence,  and  the  like,  In  such  cases 
the  court  acts  with  great  caution,  only  where  the  plaintiff's  rights 
arf^  reasonably  certain,  and  the  danger  is  apparent.^ 

§  1334.     The  Same,     Third  Class. — The  third  class  embraces  those 

'  My  limits  do  not  permit  a  disciission  of  the  particular  circumstances 
under  which  a  receiver  will  or  will  not  be  appointed ;  the  cases  cited  furnish 
many  illustrations,  in  general,  a  dissolution  must  have  occurred,  or  must 
be  asked;  although  in  extreme  cases  of  misconduct  and  danger  therefrom, 
an  ad  interim  receiver  may  be  appointed  -without  a  dissolution.  A  disagree- 
ment among  the  partners  themselves  is  essential:  See  Allen  v.  Hawley.  0 
Fla.  164,  63  Am.  Dec.  198  (in  exceptional  cases  only,  the  business  may  be 
continued  by  the  receiver  during  the  pendency  of  the  action  for  dissolution)  ; 
Harding  v.  Glover,  18  Ves.  281:  Goodman  v.  Whitcomb,  1  Jac.  &  W.  589; 
Const  V.  Harris,  Turn.  &  R.  517  (exclusion  of  partner  from  participation 
in  the  business  a  strong  ground).  In  case  of  dissolution  by  death  of  a  partner, 
the  control  of  the  surviving  partner  will  not  be  wrested  from  liim  except 
upon  a  clear  showing:  Huggins  v.  Huggins,  117  Ga.  151.  43  S.  E.  750:  and 
the  same  is  true  wiiere,  after  dissolution,  one  partner,  by  agreement,  is 
winding  up  the  affairs:  Walker  v.  Trott,  4  Edw.  Ch.  38;  but  in  the  absence 
of  such  agreement,  a  receiver  is  readily  appointed  after  dissolution  in  case 
of   a   dispute   between   the  partners:    McElvey  v.   Lewis,   76   N.   Y.   373. 

"  Mines  and  collieries.  The  working  of  a  mine  or  colliery  by  co-o^^^1ers  is 
necessarily  a  business  analogous  to  a  pai-tnership:  Jefferys  v.  Smith,  1 
.lacob  &  W.  298.  Partition  between  ordinary  co-OA\Tiers:  receiver  is  granted 
only  in  extreme  cases:     Freeman  Co-ten.  §  327. 

^•Owen  V.  Homan,  3  Macn.  &  G.  378.  4  H.  L.  Cas.  907.  Shep.  324;  Bainbrigge 
v.  Baddeley,  3  JNIacn.  &  G.  413;  Earl  Talbot  v.  Hope  Scott.  4  Kay  &  J.  96. 
As  to  receivei-s  of  mining  property,  the  title  to  which  is  in  litigation,  see  Bigbee 
V.  Summerour,  101  Ga.  201.  28  S.  E.  642;  Tornanses  v.  Melsing.  106  Fed. 
775,  784.  45  C.   C.  A.   61.1. 


805  RiXKivKiJs.  §  l->;)-l: 

eases  in  which  the  person  hoUlinii'  title  to  the  property  is  iu  a  po- 
sition of  trust  or  of  (luasi  trust,  and  is  violating  his  fiduciary  duties 
by  misusing,  misapplying,  or  wasting  the  property,  and  is  thereby 
endangering  the  rights  of  other  persons  beneficially  interested.  In 
many,  but  not  in  all,  the  instances  falling  within  this  class,  the 
])laintift'  has,  and  is  seeking  to  enforce,  some  equitable  estate  or 
interest;  but  whatever  be  the  nature  of  his  right,  the  ground  of  the 
remedy  is  always  the  misconduct  of  the  party  holding  the  title, 
and  the  consequent  danger  of  loss.  Among  the  more  important 
instances  of  this  class  in  which  a  receiver  may  be  appointed  are 
the  following:  1.  Suits  against  trustees  who  have  been  guilty  of 
a  breach  of  trust  ;^  2.  Suits  under  like  circumstances  against  ex- 
ecutors or  administrators;-  3.  Suits  to  enforce  a  mortgage  when  the 
security  is  inadequate,  the  mortgagor  is  insolvent,  or  is  committing- 
acts  of  waste,  and  the  like,  depreciating  the  value  of  the  property ;' 
4.  Suits  under  like  circumstances,  to  enforce  equitable  liens,  in- 
cluding those  by  judgment  creditors  in  the  nature  of  an  equitable 


'  Courts  will  not  interfere  with  trustees'  possession  by  a  receiver  unless 
there  is  real  danger  from  their  misconduct:  tSee  Latham  v.  Chafee,  7  Fed. 
525.  Receiver  in  place  of  assignee  for  creditors,  see  Haggarty  v.  Pitman,  1 
Paige  298,  19  Am.  Dec.  434. 

-In  administration  suits  a  receiver  will  not  be  appointed  unless  the  executor 
or  administrator  has  been  guilty  of  misconduct,  waste,  misuse  of  assets,  and 
the  like,  and  there  is  real  danger  of  loss:  Randle  v.  Carter,  62  Ala.  95;  Ex 
parte  Walker,  25  Ala.  81. 

^  In  England  an  equitable  mortgagee  alone  was,  prior  to  1860,  entitled  to  a 
receiver,  because  a  legal  mortgagee  could  at  any  time  gain  possession,  and 
thus  secure  the  rents  and  profits:  Berney  v.  8ewell,  1  Jacob  &  W.  647.  In  this 
country  no  distinction  is  7nade  between  legal  and  equitable  mortgages.  Th(> 
general  rule  is,  that  a  receiver  of  the  rents  and  profits  will  be  appointed 
upon  the  commencement  of  a  foreclosure  suit,  on  a  showing  of  two  things: 
First,  that  the  mortgaged  property  is  an  inadeqviate  seciirity  for  the  payment 
of  the  debt ;  and  second,  that  the  moi-tgagor  is  insolvent,  or  beyond  the  juris- 
diction, or  of  doubtful  financial  responsibility:  Schreiber  v.  Carey,  48  Wis. 
208.  4  N.  W.  124;  Pasco  v.  Gamble,  15  Fla.  562:  Lindsay  v.  American  Mort- 
gage Co.,  97  Ala.  412,  11  South.  770.  This  rule  is  usually  adhered  to  even  under 
statutes  entitling  the  mortgagor  to  possession  after  default  and  before  tlie 
foreclosure  saje:  Schreiber  v.  Carey,  supra;  but  see  contra,  Wagar  v.  Stone. 
36  Mich.  367.  Other  circumstances  may  aid  the  mortgagee's  application  for  a, 
receiver,  such  as  the  mortgagor's  neglect  to  pay  taxes,  etc.:  Schreiber  v. 
(\arey,  supra.  As  to  the  effect  of  a  stipulation  in  the  mortgage  that  the  mort- 
gagee may  have  a  receiver  appointed  on  the  mortgagor's  default,  the  cases 
are  in  conflict.  See  First  Nat.  Bank  v.  Illinois  Steel  Co..  174  111.  140,  51 
N.  E.  200,  H.  &  B.  871;  Baker  v.  Varney,  129  Cal.  564,  79  Am.  St.  Rep.  140, 
62  Pac.  100.  As  to  receiver  after  the  foreclosure,  see  First  Nat.  Bank  v. 
Illinois  Steel  Co..  supra:  as  to  receiver  of  a  mortgaged  homestead.  Marshall, 
etc..  Bank  v.  Cady.  75  Minn.  241,  77  N.  W.  831,  H.  &  B.  864:  as  1o  receiver 
in  behalf  of  a  chattel  mortgagee,  Wiedemann  v.  Saun  (N.  J.  Eq.),  31  All. 
211.  11.  .V  H.  867. 


§  1331  EQUITY     JUKISPKUDEXCE.  806 

execution  ;^  5.  Suits,  under  like  circumstances,  and  for  a  like  reason, 
by  a  vendor  to  enforce  the  specific  performance  of  a  contract  for 
the  sale  of  land  against  a  vendee  who  is  in  j^ossession ;''  6.  In  suits 
by  creditors,  although  not  strictly  creditors'  actions  by  judgment 
creditors,  brought  to  enforce  their  demands  from  the  debtors'  prop- 
erty, under  some  very  special  circumstances  involving  great  danger 
of  loss,  such  as  the  debtors'  non-residence,  insolvency,  and  the  like;" 
7.  Suits  for  the  rescission  of  a  contract  for  the  sale  of  land  under 
special  circumstances;^  8.  Suits  to  enforce  payment  of  the  arrears 
of  annuicies;*  9.  Suits  for  the  protection  of  remaindermen  against 
the  life  tenant  or  other  holder  of  the  particular  estate ;''  10.  Suits, 
under  many  circumstances,  against  corporations;^"  11.  Suits  and 
proceedings  in  bankruptcy.^^ 

*  Receiver  in  a  creditor's  suit,  where  execution  has  been  returned  unsatisfied 
(see  post,  S  141")),  is  appointed  very  much  as  a  matter  of  course:  Bloodgood 
V.  Clark,  4  Taige  574;  and  see  Mays  v.  Rose,  Freem.  Ch.  (Miss.)  718,  Shep. 
322.  The  same  is  true  of  statutory  proceedings  supplemental-}-  to  execution; 
see  Coates  v.  Wilkes,  92  X.  C.  376  (an  admiraljle  description  of  such  proceed- 
ings) . 

''In  such  a  suit,  or  in  the  suit  b}'  the  vendor  to  foreclose  his  "lien"  (see 
ante,  §1202),  a  receiver  is  usually  appointed  in  accordance  with  the  rule  re- 
lating to  receivers  in  mortgage  foreclosure  (see  supra,  note  3)  ;  Belding  v. 
JNleloche,  113  Mich.  223,  71  N.  W.  592,  H.  &  B.  8G2. 

"  A  creditor's  suit  on  a  demand  not  reduced  to  judgment  lies  only  in  very 
special  circumstances:  See  post,  §  1415,  note;  Blondheim  v.  Moore,  11  Md. 
3()5,  iShep.  321.  In  a  few  states,  however,  it  is  authorized  by  statutes;  for  re- 
ceiver under  such  statutes,  see  Fechheimer  v.  Baum,  37  Fed.  167,  2  L.  R.  A, 
153,  H.  &  B.  837. 

•Loaiza  v.  Sui.erior  Court,  85  Cal.  11,  20  Am.  fSt.  Rep.  197,  9  L.  R.  A. 
37t).  24  i'ac.  707.  end  of  opinion. 

*  In  Enghuid  only  when  the  payment  cannot  be  enforced  by  distress:  Sollory 
V.  Leaver,  L.  R.  9  Eq.  22. 

'■■See  St.  Paul  Trust  Co.  v.  Mintzner,  65  Minn.  124,  60  Am.  St.  Rep.  444.  07 
-\.  W.  657,  32  L.  R.  A.  756. 

'"  In  appointing  a  receiver  to  displace  the  management  of  the  board  of 
directors  of  a,  corjioration  the  court  should  act  with  great  caution:  Consoli- 
(hited,  etc.,  Co.  v.  Consolidated,  etc.,  Co.,  43  Fed.  204.  It  cannot,  unless 
authorized  by  statute,  ajjpoint  a  receiver  on  tlie  petition  of  the  corporation 
itself:  State  V.  Ross,  122  Mo.  435,  25  S.  W.  947,  23  L.  R.  A.  534;  nor, 
Avithout  such  authority,  for  the  purjioso  of  dissolving  the  corporation  and 
Avinding  up  its  affairs:  Walhice  v.  Pierce-Wallace  Pub.  Co.,  101  Iowa  313, 
03  Am.  St.  Rep.  389,  70  N.  W.  216.  38  L.  R.  A.  122;  but  see  Miner  v.  Belle 
Isle  Ice  Co.,  93  Mich.  97,  53  N.  W.  218.  Subject  to  these  limitations,  it 
is  now  genei-ally  conceded  that  the  court  has  inherent  power,  imaided  by 
statute,  to  appoint  receivers  of  corpor.it ions;  a  power  which  is  most  fre— 
cjuently  invoked:  1.  In  suits  by  stockliolders  seeking  a  remedy  for  breach 
of  fiduciary  duty  by  the  directors  or  officers,  see  ante,  §  1095;  State  v.  Second 
Judicial  Dist.  Ct.,  15  Mont.  324,  48  Am.  St.  Rep.  682,  39  Pac.  316,  27  L.  R.  A. 
392;  Haywood  v.  Lincoln  Lumber  Co.,  64  Wis.  039,  20  N.  W.  184;  see  Ala- 
bama Coal  &  C.  Co.  v.  Shackelford,  137  Ala.  224,  97  Am.  St.  Rep.  23.  34  South. 


807  RECKiVKKs.  §  i;536 

§  1335.  The  Same.  Fourth  Class. — Tliis  class  contains  those  cases 
in  which  a  receiver  is  appointed  alter  judgment  for  tlie  pur])Ose  of 
carrying  the  decree  into  effect.  In  some  instances  the  receiver  ap- 
pointed on  motion  pending  the  action  is  continned  in  his  office 
alter  the  decree;  in  others,  he  is  appointed  after  the  decree,  when 
no  appointment  would  be  made  before  the  final  hearing-.  In  all 
instances  the  object  of  a  receiver  is  to  carry  into  effect  a  special 
decree,  which  woukl  not  otherwise  be  efficiently  executed  by  ordi- 
nary process.  Among  the  most  im])ortant  cases  in  which  a  receiver 
may  thus  be  appointed  are  creditors'  suits  and  suits  to  enforce 
other  equitable  liens,  suits  to  enforce  the  contracts  of  married 
women  against  their  separate  estates,  and  suits  or  proceedings  gen- 
erally statutory  for  the  winding  up  of  corporations.  In  the  states 
adopting  the  reformed  procedure,  the  codes  of  procedure  generally 
contain  provisions  regulating  the  appointment  of  receivers. 

§  1336.  Powers,  Rig-hts,  Duties,  and  Liabilities.— The  appointment 
of  a  receiver  during  the  ])cndency  of  a  suit  does  not  determine  any 
rights  or  title  of  tlie  litigant  parties:  it  is  made  for  the  benefit  of 

83.3  (no  sufficient  grounds  for  recoiver).  2.  After  dissolution,  for  tlie  purpo^;e 
of  winding  up  the  affairs  of  the  corporation,  a  matter  whicli  is  now  generally 
resiilated  by  statute.  3.  \Mien  the  corporation  has  no  properly  constituted 
governing  hody.  or  there  are  sucli  dissensions  in  its  governing  body  as  to 
make  it  impossible  for  the  corporation  to  carry  on  its  business  with  advantage, 
a  temporaaiy  receiver  may  be  appointed:  Sternberg  v.  ^^■olfl■,  56  N.  J.  Eq. 
389,  67  Am.  St.  Rep.  494,  30  Atl.  397,  39  L.  R.  A.  762.  Compare  Republican 
JNIountain  Silver  JMines  v.  Brown.  .58  Fed.  647,  7  C.  C.  A.  412,  24  L.  R.  A. 
776   (ilissatisfaction  of  minority  stoci<holders  not  sufficient  groimd  for  receiver.) 

4.  In  suits  by  judgment  creditors  of  the  corporation,  see  Hollins  v.  Brierfield, 
otc,   Co.,   150   U.   8.   371,   14   ,Sup.   Ct.    127,   37   L.   ed.    1113,   and  post,   §    1415. 

5.  In  suits  for  the  foreclosure  of  mortgages  or  other  liens  upon  the  corporate 
property.  Receivers  of  railroads  are  usually  appointed  as  an  incident  of  fore- 
closure proceedings  by  bondliolders,  on  default  in  payment  of  interest.  The 
api)ointment  of  a  receiver  in  sucli  proceedings  has  become  the  usual  j)ractice, 
for  reasons  explained  in  Central  Trast  Co.  v.  Chattanooga,  etc.,  Co.,  94  Fed. 
27.5.  ?,G  C.  C.  A.  24];  i\lercantile  Trust  Co.  v.  Missouri,  K.  &  T.  R.  Co.,  36 
Fed.  221,  1  L.  R.  A.  397 :  though  in  theory  the  appointment  "can  only  l)e 
justified  by  the  presence  of  an  absolute  necessity":   Milwaukee  &  i\I.   R.   Co.  v. 

\Soutter,  2  Wall.  510,  17  L.  ed.  860;  see  Pom.  Eq.  Rem.  SS  128.  129,  and  notes. 
There  is  a  vast  mass  of  legislation  relating  to  corporation  receivers.  Its 
general  objects  are  well  descril)ed  in  Havemeyer  v.  Superior  Coui't,  84  Cal.  327, 
363.  18  Am.  St.  Rep.  192,  24  Pac.  121,  10  L.  R.  A.  627  (see  passage  quoted, 
Pom.  Eq.  Rem.  §  127).  A  common  provision  is  that  allowing  the  court  to 
appoint  a  receiver  "in  the  cases  where  a  corporation  has  been  dissolved,  c'^ 
is  insolvent,  or  in  imminent  danger  of  insolvency,  or  has  forfeited  its  corpori>*!fc 
rights";  a  provision  which  has  received  varying  interpretations;  see  Have- 
meyer V.  Superior  Court,  supra.:  Texas  Trunk  R.  Co.  v.  State,  83  Tex.  1,  18 
«.  W.   199. 

"See  P.ankruptey  Act  of  1898,  sec.  2,  clauses  3  &  5;  Loveland  Baid<;rui)lcy, 
§  77a. 


§   1336  EQUITY   JURISPRUDENCE.  80S 

all.  His  possession,  though  impartial  while  the  controversy  is  un- 
deeided,  is  regarded  as  on  behalf  of  the  one  who  is  ultimately 
found  to  be  entitled  to  the  property.  He  is  in  reality  an  officer  of 
the  court,  and  will  be  protected  by  it  from  interference  by  third 
persons  in  the  discharge  of  his  duties;  indeed,  such  interference 
without  permission  of  the  court  would  be  a  contempt.  The  re- 
ceiver, in  all  important  matters,  acts  under  special  direction  of  the 
court.  He  must,  in  general,  obtain  its  permission  to  bring  suits, 
and  suits  cannot  be  properly  brought  against  him  without  permis- 
sion. Although  not  strictly  a  trustee,  because  the  legal  title  to  the 
property  is  not  vested  in  him,  he  occupies  a  fiduciary  position,  and 
must  act  with  perfect  good  faith,  and  is  liable  to  account.  The 
exact  nature  of  his  duties  depends  upon  the  particular  case.^ 

'  Rrceiver  not  appointed  unthout  notice  to  defendant. — By  the  settled  practice 
of  the  court,  a  receiver  cannot  be  appointed  ex  parte,  before  the  defendant  has 
had  an  opportunity  to  be  heard  in  relation  to  his  rights,  except  in  those  cases 
■where  he  is  out  of  the  jurisdiction  of  the  court  or  cannot  be  found,  or  where, 
for  some  other  reason,  it  becomes  absolutely  necessary  for  the  court  to  interfere, 
before  there  is  time  to  give  notice  to  the  opposite  pai-ty,  to  prevent  the  destruction 
or  loss  of  the  property:  Verplanck  v.  Mercantile  Ins.  Co.,  2  Paige  438.  See, 
also.  Mays  v.  Rose,  Freem.  Ch.  (Miss.)  703,  Shep.  322;  Blondheim  v.  Moore, 
11  Md.  365,  Shep.  321;  St.  Louis,  K.  &  S.  R.  Co.  v.  Wear,  1.3,5  Mo.  2.30.  33 
I..  R.  A.  341,  36  S.  W.  357,  658,  H.  &  B.  823;  Bank  of  Florence  v.  U.  S.  Sav. 
&   L.  Co,  104  Ala.  297,  16  South.   110,  H.  &  B.  897. 

Who  may  br  appointed. — The  selection  of  a  receiver  is  a  matter  for  the  wise 
discretion  of  the  court.  As  a  general  rule  he  should  not  be  personally 
interested  in  the  result  of  the  suit.  See  Merchants',  etc.,  Nat.  Bank  v.  Kent 
Cir.  J.,  43  Mich.  292.  5  N.  W.  627.  H.  &  B.  855  (partner  of  attorney  for 
one  of  the  parties)  :  Olmstead  v.  Distilling,  etc.,  Co.,  69  Fed.  24  (stockliolder 
of  the  company).  While  it  is  preferable  to  take  an  insolvent  company  entirely 
out  of  the  management  which  has  resulted  in  its  misfortune;  Finance  Co. 
of  Penn.  v.  Charleston,  etc..  R.  Co.,  45  Fed.  436;  courts  have  frequently  felt 
constrained  to  depart  from  the  general  iiile  and  appoint  an  officer  of  the  com- 
])any  familiar  with  the  details  of  its  business:  Fowler  v.  Jarvis-Conklin,  etc., 
(^o.,  63  Fed.  888,  66  Fed.  14. 

The  receiver's  possession,  and  interference  therririfh. — In  support  of  tlie 
text,  see  Pom.  Eq.  Rem.  §  154,  and  quotations;  esp.  Morrell  v.  Noyes,  56  Me. 
458,  96  Am.  Dec.  486.  The  court  receives  the  property  into  its  custody  im-  , 
pressed  with  all  the  existing  rights  and  equities,  and  the  relative  rank  of 
claims  and  liens  remain  unaffected  by  the  receivership  (but  see  infi-a  for  an 
important  exception  to  this  rule  in  case  of  railroad  receiverships)  ;  Am.erican 
Trust,  etc.,  Bank  v.  McGettigan,  152  Ind.  582,  71  Am.  St.  Rep.  345,  52  N.  E. 
793;  McRae  v.  Bowers  Dredging  Co.,  86  Fed.  344;  Duryee  v.  United  States, 
etc.,  Co.,  55  N.  J.  Eq.  311,  37  Atl.  155.  In  most  proceedings,  the  receiver's  title 
relates  back  to  the  time  of  the  order  appointing  him;  In  re  Schuyler  Steam 
Towboat  Co.,  136  N.  Y.  169,  32  N.  E.  623,  20  L.  R.  A.  391;  Connecticut 
River  Banking  Co.  v.  Rockbridge  Co.,  73  Fed.  709;  but  see  Bank  of  Woodland 
V.  Heron,  120  Cal.  614,  52  Pac.  lOOB.  The  court  may  order  parties  to  the  suit 
or  their  agents  to  surrcTider  possession  to  the  receiver,  and  treat  their  dis- 
obedience as  a  contempt:   Brandt  v.  Allen,  76  Iowa  50,  40  N.  W.  82,  1  L.  R.  A. 


801)  KKCEIVKRS.  §  1036 

(55;{;  compare  Musgrove  v.  Gray,  123  Ala.  37G,  82  Am.  St.  Rep.  124,  2G  South. 
043.  The  appointing  court  jealously  guards  its  exclusive  authority  over  tlie 
fund  or  property  in  the  receiver's  custody.  VV'iswall  v.  Sampson,  14  How. 
o2,  65,  14  L.  ed.  322,  Shep.  334 ;  any  disturbance  of  that  possession,  by  force, 
by  legal  proceedings,  or  in  any  other  manner,  without  the  permission  of  the 
appointing  court,  constitutes  a  contempt;  Russell  v.  East  Anglian  Ry..  3 
Alacn.  &  G.  104;  Ryan  v.  Kingsberry,  88  Ga.  361,  14  S.  E.  59G;  Sercomb  v. 
Catlin,  128  ill.  556.  15  Am.  St.  Rep.  147,  21  N.  E.  606:  and  may  be  restrained 
by  injunction:  Davis  v.  Gray,  16  Wall.  203,  21  L.  ed.  447,  H.  &  B.  804, 
Shep.  325.  Thus,  the  property  in  his  hands  is  not  subject,  without  leave 
of  the  coud,  to  attachment:  Texas  Trunk  R.  Co.  v.  Lewis,  81  Tex.  1,  26 
Am.  St.  Rep.  776.  16  S.  ^^'.  647;  or  garnisliment;  Holbrook  v.  Ford,  153 
III.  633.  46  Am.  St.  Rep.  917,  39  N.  E.  1091.  27  L.  R.  A.  324;  or  execution 
sale  (by  weight  of  authority,  such  sale,  even  on  a  lien  arising  prior  to  the 
receiver's  appointment,  not  only  is  a  contempt,  but  passes  no  title  to  the 
property;  see  Wiswall  v.  Sampson,  14  How.  52,  14  L.  ed.  322,  Shep.  334; 
Ellis  v.  Vernon,  etc..  Co..  80  Tex.  109,  23  S.  W.  858;  Pelletier  v.  Greenville  L. 
(^o..  123  X.  C.  596.  68  Am.  St.  Rep.  837,  31  S.  E.  855;  but  see  State  v.  Superior 
Court.  8  Wash.  210,  35  Pac.  1087.  25  L.  R.  A.  354;  or  even  to  levy  and 
sale  for  taxes:  In  re  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  785,  13  L.  ed.  689. 
Tiie  interference  by  striking  workmen  with  the  operation  of  a  railroad  in  a 
receiver's  hands  is  punishable  as  contempt:  Thomas  v.  Cincinnati,  etc.,  R. 
Co.,  62  Fed.  803. 

Suits  agairifit  the  receiver. — Bringing  suit  against  the  receiver  without  the 
permission  of  the  appointing  court  is  a  contempt  of  that  court :  Thompson 
V.  Scott,  4  Dill.  508,  Fed.  Cas.  No.  13,975;  and  it  is  even  the  prevailing  rule 
that  the  court  in  which  such  suit  is  brought  has  no  jurisdiction  to  hear  and 
determine  it:  Barton  v.  Barbour,  104  U.  S.  126,  26  L.  ed.  673;  contra,  see  dis- 
senting opinion  of  Miller,  J.,  in  the  last  case;  St.  Joseph  &  D.  C.  R.  R. 
v.  Smith,  19  Kan.  225,  231,  per  Brewer,  J.  This  rule  was  productive  of 
great  hardship  in  many  cases:  Dow  v.  Memphis,  etc.,  R.  R.  Co..  20  Fed.  260, 
268,  and  was  abrogated,  as  respects  acts  or  transactions  of  federal  receivers 
in  carrying  on  their  business,  by  act  of  congress  in  1887  (1  U.  S.  Comp.  Stat. 
p.  582).  see  Central  Trust  Co.  v.  East  Tenn.,  etc..  Co.,  59  Fed.  523;  Dil- 
lingham V.  Hawk.  60  Fed.  494,  9  C.  C.  A.  101,  23  L.  R.  A.  517;  Pom. 
Kq.  Rem.  §§  173,  174.  Apart  from  statute,  the  granting  or  withholding  of  the 
leave  to  sue  the  receiver,  by  petition  or  intervention  in  the  suit  in  wliich 
he  was  appointed,  or  by  an  independent  action,  is  entirely  within  the  discretion 
of  the  court,  but  leave  is  not  arbitrarily  refused.  See  Minot  v.  Mastin.  95  Fed. 
734,  37  C.  C.  A.  234 :  Pacific  Ry.  Co.  v.  Wade,  91  Cal.  449,  450,  25  Am.  St.  Rep. 
201.  27  Pac.  768,  13  L.  R.  A.  754.  The  receiver's  liabilities  are  ofTicial,  not  per- 
sonal:    McXuIta  V.  Lockridge,  141  U.  S.  327,  12  Sup.  Ct.  11. 

fruits  by  the  receiver,  also,  can  only  be  brought  by  the  permission,  either 
special  or  general,  of  the  appointing  court:  Screven  v.  Clark,  48  Ga.  41; 
Phoenix  Ins.  Co.  v.  Schultz,  80  Fed.  337,  25  C.  C.  A.  453,  but  this  rule 
has  been  changed  by  statute  in  many  states.  In  siu'h  suit  the  regularity  of 
his  appointment  cannot  be  attacked  collaterally;  Bai'bour  v.  Nat.  Exch. 
Bank,  45  Ohio  St.  133,  12  N.  E.  5.  A  defense  good  against  the  original  party 
whom  the  receiver  represents  is  good  ngaiTist  the  receiver:  Hyde  v.  Lyiidt', 
4  N.  Y.  387.  As  to  set  off,  see  Colton  v.  Drovers'  Ass'n,  90  ^]d.  85,  78  Am. 
>^t.  Rep.  431,  45  Atl.  23,  46  L.  R.  A.  388.  H.  &  B.  899.  But  the  statutory 
receiver  of  an  in'^olvent  corporation  is  usual  1\-  held  to  represent  not  only  the 
coi-poration.  but  its  creditors  as  well :  Peal)ody  v.  New  England  W.  Co.,  184 
111.  625,  15  Am.  St.  Rep.  195,  56  N.  K.  957. 


§  looG  EQUITY    JURISPRUDENCE.  810 

Receiver's  management  of  the  property. — While  it  is  the  duty  of  t  ^t  re- 
ceiver to  keep  and  manage  the  property  according  to  the  directions  and  ordeb 
of  the  covirt,  lie  is  allowed  a  discretion  in  many  matters  of  administrative 
detail.  «ee  Vanderbilt  v.  Little,  43  N.  J.  Eq.  U(i9,  12  Atl.  188.  He  has  no 
authority  to  continue  a  business  unless  directed  to  do  so  by  order  of  the  court; 
by  such  order  he  is  impliedly  authorized  to  enter  into  necessary  contracts ; 
as,  to  hire  necessary  employees :  Continental  Trust  Co.  v.  Toledo,  etc.,  R.  Co., 
59  Fed.  514.  He  is  not  bound  to  complete  unfinished  contracts,  or  leases, 
unless  he  sees  tit  to  adopt  them:  Dayton  H.  Co.  v.  Felsenthall,  116  Fed.  9fil^ 
54  C.  C.  A.  537.  As  to  his  right  to  employ  attorneys,  see  Henry  v.  Henry, 
103  Ala.  582,  15  South.  916.  When  the  interests  of  the  parties  make  ic 
desirable,  a  sale  of  the  property  may  be  ordered:  First  Nat.  Bank  v.  Shedd, 
121  U.  S.  74,  7  Sup.  Ct.  807,  30  L.  ed.  877.  Receivers  of  railroad  corpora- 
tions, which  owe  a  peculiar  duty  to  the  public  to  keep  their  properties  in  opera- 
tion, may  be  authorized  to  borrow  money  for  that  general  purpose,  and,  as 
security,  to  issue  "receiver's  certificates,"  which  shall  constitute  a  lien  on 
the  property  taking  priority  over  the  mortgage  indebtedness :  Union  Trust 
Co.  v.  Illinois  Midland  Ry.  Co.,  117  U.  fS.  434,  6  Sup.  Ct.  809,  29  L.  ed.  963; 
but  this  displacement  of  the  mortgage  priority  by  certificates  is  not  allowed 
in  case  of  purely  jjrivate  corporations :  Fanners'  Loan,  etc.,  Co.  v.  Grape 
Creek  Coal  Co.,  50  Fed.  481,  H.  &  J3.  879. 

Payment  of  claims  against  the  fund. — The  claim  of  the  state  for  taxes  is 
paramount  to  all  others.  See  Central  Trust  Co.  v.  New  York,  etc.,  R.  Co., 
110  N.  Y.  250,  18  N.  E.  92,  1  L.  R.  A.  260.  In  general,  necessarj^  expenses 
of  the  administration  of  the  receivership  have  priority  over  pre-existing 
mortgages  or  liens:  McLane  v.  Placerville,  etc.,  R.  Co.,  66  Cal.  606,  6  Pac. 
748.  Among  such  expenses  is  his  liability  for  injuries  resulting  from  the 
negligence  of  his  servants  in  the  operation  of  the  property  while  it  is  in 
his  charge:  Bartlett  v.  Cicero  Light,  etc.,  Co..  177  111.  68,  69  Am.  St.  Rep. 
206,  52  N.  E.  339,  42  L.  R.  A.  715.  Unsecui-ed  claims  arising  before  the 
api>ointment  of  the  receiver  are,  of  course,  inferior  to  tlie  mortgage  or  other 
secured  indebtedness  as  a  general  rule ;  but  an  important  and  remarkable  ex- 
ception has  been  made,  in  the  last  thirty  years,  in  the  case  of  railway  receiver- 
ships. In  such  receiverships,  priority  is  allowed  to  certain  limited  classes 
of  claims  for  necessary  operating  expenses  incurred  within  a  reasonable  time 
before  the  appointment  of  a  receiver.  "The  controlling  principle  appears  to  be 
th:xt  a  railroad,  having  public  duties  to  discharge,  must  be  kept  a  going  concern 
while  in  the  hands  of  the  courts,  and  that  to  that  end  debts  due  its  employees 
and  other  current  debts  incurred  for  its  ordinary  operations,  which  it  is  not 
usually  practicable  to  pay  in  cash,  and  wliich  are  therefore  payable  on  short 
terms,  should  be  paid  as  they  would  have  been  paid  if  the  court  had  not  taken 
away  from  the  corporation  the  control  of  the  railroad.  A  cessation  of  the  rail- 
road's operations  by  failure  to  pay  promptly  the  operatives  or  other  such  debts' 
as  railroads  must  necessarily  incur  for  their  ordinary,  current  operations, 
must  be  prevented."  Lackawanna,  etc.,  Co.  v.  Farmers'  Loan  &  Tr.  Co.,  79  Fed. 
202.  See  Fosdick  v,  Schall,  99  U.  S.  235,  25  L.  ed.  339,  Shep.  339  (the  leading 
case)  ;  Kneeland  v.  Trust  Co.,  136  U.  S.  89,  10  Sup.  Ct.  950;  Gregg  v.  ]\Ietro- 
politan  Trust  Co.,  197  U.  S.  183,  25  Sup  Ct.  415;  National  Bank  of  Augusta 
V.  Carolina,  etc.,  R.  Co.,  63  Fed.  25  (president's  salary  not  a  preferential  claim)  ; 
Southern  Ry.  Co.  v.  Carnegie  Steel  Co.,  176  U.  S.  257,  20  Sup.  Ct.  347,  44  L. 
ed.  458  (supplies  for  repairs)  ;  Farmers'  Loan  &  Tr.  Co.  v.  Northern  Pac.  R. 
Co.,  74  Fed.  431  (claim  for  personal  injuries  received  prior  to  appointment  of 
the  receiver  not  entitled  to  preference).     Contra  to  the  last  case,  see  tlie  vig- 


811  RECEIVKRS.  §  1336 

orous  opinion  in  Green  v.  Coast  Line  R.  Co.,  97  Ca.  15,  54  Am.  St.  Rep.  37i),  24 
y.  E.  814,  33  L.  R.  A.  800. 

Jieceiver'.s  compensation. — ISee  IStuart  v.  Rouhvare,  133  U.  S.  78,  10  Sup.  Ct. 
244,  33  U.  e(i.  5US;  Mickey  v.  Parrot,  etc.,  Co.,  32  Mont.  143,  79  Pac.  698,  108 
Am.  St.  Rep.  510. 

Foreign  receivers. — As  to  tlio  right  of  receivers  to  sue  outside  of  the  terri- 
torial jurisdiction  of  their  appointment,  see  Booth  v.  Clark,  17  How.  322,  15  L. 
ed.  164,  H.  &  B.  797,  Shep.  327  (the  leading  case)  ;  Wyman  v.  Eaton,  107  Iowa, 
217,  70  Am.  St.  Rep.  193,  77  N.  W.  865,  43  L.  R.  A.  695,  H.-  &  B.  888;  Gilman 
V.  Ketcham,  84  Wis.  60,  36  Am.  St.  Rep.  899,  54  N.  W.  395,  23  L.  R.  A.  52; 
Catlin  V.  Wilcox  Silver  Plate  Co.,  123  Ind.  477,  18  Am.  St.  Rep.  338,  24  N.  E. 
250,  8  L.  R.  A.  62;  Ward  v.  Conn.  Pipe  ^Ug.  Co.,  71  Conn.  345,  71  Am.  St. 
Rep.  207,  41  Atl.  1057,  42  L.  R.  A.  706;  Holbrook  v.  Ford,  153  111.  633,  46  Am. 
St.  Rep.  917,  39  N.  E.  109,  27  L.  R.  A.  324;  American  Waterworks  Co.  v.  Farmers 
L.  &  T.  Co.,  20  Colo.  203,  46  Am.  St.  Rep.  285,  37  Pac.  269,  25  L.  R.  A.  338; 
Robertson  v.  Staed,  135  Mo.  135,  58  Am.  St.  Rep.  569,  36  S.  W.  610,  33  L.  R.  A. 
203;  Barth  v.  Backus,  140  N.  Y.  230,  37  Am.  St.  Rep.  545,  35  N.  E.  425,  23  L. 
R.  A.  47;  Farmers'  L.  &  T.  Co.  v.  Bankers'  Tel.  Co.,  148  K  Y.  315,  51  Am.  St. 
Rep.  690,  42  N.  E.  707,  31  L.  R.  A.  403;  Castleman  v.  Templeman,  87  :\Id.  546, 
67  Am.  St.  Rep.  363,  40  Atl.  275,  41  L.  R.  A.  367;  Cushing  v.  Perot,  175  Pa.  St. 
66,  52  Am.  St.  Rep.  835,  34  Atl.  447,  34  L.  R,  A,  737. 


g  13S7  EQUITY    JUKiSI'UUUEXCE,  81^ 


GROUP  SECOND. 

HEMEDIES  PURELY  ITvEVENTIVE. 


CHAPTER    FIRST. 

INjrXCTIONS. 


§ 

1338. 

§ 

1339. 

§ 

1340. 

§^ 

1341- 

-1344. 

§ 

1341. 

§ 

1342. 

§ 

1343. 

§ 

1344. 

§ 

1345. 

SECTION  I. 

TO  PROTECT  OR  RESTRAIN  THE  VIOLATION  OF  OBLIGATIONS  AND 
RIGHTS  OF  PROPERTY  OR  OF  CONTRACT,  EITHER  LEGAL  OR 
EQUITABLE. 

ANALYSIS. 

§   1337.     General  nature  and  objects;   Interdicts. 
Fundamental  principle. 
To   protect  purely  equitable  estates  or  interests,  and  in  aid   of 

purely  equitable  remedies. 
The  same:      Particular  instances. 
To  prevent  the  violation  of  contracts. 
General   doctrine, 

1.  Restrictive  covenants  creating  equitable  easements. 

2.  Contracts   for  personal   services   or  acts. 

3.  Other  agreements  generally  negative  in  their  nature. 
Miscellaneous   cases:      Corporations  and   their   ofTicers;    between 

morlgagiu-    and    mortgagee;    public    officers;    eminent    domain. 

§1337.  General  Nature  and  Object. — The  remedy  of  injunction 
was  undoubtedly  borrowed  by  the  chancellors  from  the  "inter- 
dicts" of  tlie  Eoman  law.^     An  injunction  may  be   either  a  final 

^  As  to  "interdicts,"  see  Gaius's  Inst.,  lib.  4,  sees.  138-170;  Poste's  ed., 
402-520;  Just.  Inst.,  lib.  4y  tit.  15,  sees  1-8;  Sandars's  ed.,  1st  Am.  cd..  5S, 
570-580.  Tlie  general  definition  as  given  by  Gains  (Ibid.,  sec.  139)  is  as  fol- 
lows: "Under  eertain  circumstances,  chiefly  Avhen  jiossession  or  quasi  pos- 
session [i.  e.,  ])()ssession  of  a  servitude]  is  in  dispute,  the  first  step  in  the 
legal  proceedings  is  the  interposition  of  tiie  praetor  or  pro-consul,  who  com- 
mands some  performance  or  forbearance ;  which  commands,  formulated  in 
solemn  terms,  are  called  interdicts."  The  most  general  formula  was  "vim 
fieri  veto,  exhibeas,  restituas."  "I  forbid  you  to  use  violence,  you  must  pro- 
duce, you  must  restore."  There  were  tlius  three  distinct  species  of  interdicts: 
1.  Tlie  ])roliiliitory.  wliei'e  the  defendant  -was  coininaiulcd  to  refrain  or  desist 
from  SGjne  act,  answering  to  our  ordinary  injunction;   2.  The  exhibitorv',  where 


813  IXJLXCTIONS:    GENEKAL     nature     and    object.  ^  looS 

remedy  obtained  by  a  suit,  or  a  preliminary  and  interlocutory 
relief  granted  while  the  suit  is  pending.  In  the  first  case  it  is 
a  decree,  in  the  second,  an  order  or  writ.  Whatever  be  its  form, 
decree  or  order,  the  remedy  by  ordinary  injunction  is  wholly  pre- 
ventive, prohibitory,  or  protective.  The  same  is  true  in  theory 
und  in  form  of  a  mandatory  injunction,  which  always  by  its  lan- 
guage prohibits  the  continuance  of  an  act  or  of  a  structure,  al- 
though in  effect  and  in  its  essential  nature  it  is  wholly  restorative, 
and  compels  the  defendant  to  restore  the  thing  to  its  original  situa- 
tion. While  injunctions  may  thus  be  final,  or  preliminary  and  an- 
cillary to  other  final  relief,  they  all  depend  upon  the  same  genenil 
p'rinciples,  doctrines,  and  rules  which  determine  and  regulate 
the  exercise  of  the  jurisdiction  to  award  them.  In  the  states 
adopting  the  reformed  procedure,  the  codes  contain  general  j)ro- 
visions  describing  the  cases  in  which  an  injunction  may  be  issued, 
but  these  provisions  do  not  materially  alter  tire  settled  equitable 
jurisdiction,  except  in  reference  to  injunctions  against  actions  or 
judgments  at  law. 

§  1338.  Fundamental  Principle. — In  determining  whether  an  in- 
junction will  be  issued  to  protect  any  right  of  property,  to  enforce 
any  obligation,  or  to  prevent  any  wrong,  there  is  one  fundamental 
I)rinciple  of  the  utmost  importance,  which  furnishes  the  answer 
to  any  questions,  the  solution  to  any  difficulties  which  may  arise. 
This  principle  is  both  affirmative  and  negative,  and  the  affirma- 
tive aspect  of  it  should  never  be  lost  sight  of,  any  more  than  the 
negative  side.^  The  general  principle  may  be  stated  as  follows: 
Wherever  a  right  exists  or  is  created,  by  contract,  by  the  ownershij) 

Un-  defendant  was  commanded  to  produce  and  exhibit  sometliinji-  in  liis  pos- 
session,— exhibeas,  which  does  not  answer  to  any  kind  of  injunction,  but  has 
some  analogies  witli  certain  comnion-hiw  writs;  .3.  The  restorative,  where  Ibe 
defendant  was  commanded  to  restore  something  to  its  original  position, 
clearly  resembling  in  its  effect  our  mandatory  injunction.  Interdicts  were 
granted  where  some  danger  was  apprehended,  or  some  injury  was  being  done, 
to  something  of  a  quasi  public  character,  as  the  stopping  up  of  a  highway,  or 
to  some  private  interest  or  right.  One  of  the  most  common  occasions  of  ihc 
interdict  was  to  protect  the  plaintiff  in  his  possession  of  a  thing,  in  whicb 
case  the  interdict  uti  possidetis  was  used  to  protect  possession  of  land  and 
buildings,  and  the  interdict  utrubi  for  movables.  In  the  interdict  uti  pos- 
sidetis, the  defendant  was  forbidden  to  interfere  with  the  possession  "nee  vi. 
nee  clam,  nee  precario."  The  granting  of  interdicts  belonged  wholly  to  the 
"extraordinary"  or  equitable  jurisdiction  of  the  magistrate:  See  ante.  vol. 
1,  §   G. 

'A  comparison  of  the  English  and  American  reports  will  show  that  our 
courts  have  dwelt  too  much  on  the  negative  side  of  this  principle,  and  ha\e 
almost  ignored  its  affirmative  aspect.  While  the  English  judges  have  gradu- 
ally but  steadily  enlarged  the  scope  of  the  injuncticm.  the  tendency  of  the 
American    decisions    has    been    to    narrow    it    even    within    the    well-established 


§  13S'9  EQUITY    JITKIHPRUDEXCE.  814 

of  property  or  otherwise,  cognizable  by  law,  a  violation  of  that  right 
toil  J  he  prohibited,  unless  there  are  other  considerations  of  policy  or 
expediency  which  forbid  a  resort  to  this  prohibitive  remedy.  The 
restraining  poiver  of  equity  extends,  therefore,  through  the  whole  range 
of  rights  and  duties  ivhicli  are  recognized  hy  the  laiv,  and  ivould  be  applied 
to  every  case  of  intended  violation,  were  it  not  for  certain  reasons  of 
expediency  and  policy  ivhich  control  and  limit  its  exercise.  This  juris- 
diction of  equity  to  prevent  the  commission  of  wrong  is,  however, 
modified  and  restricted  by  considerations  of  expediency  and  of 
convenience  which  confine  its  application  to  those  cases  in  which 
the  legal  remedy  is  not  full  and  adequate.  Equity  will  not  inter- 
fere to  restrain  the  breach  of  a  contract,  or  the  commission  of  a 
tort,  or  the  violation  of  any  right,  when  the  legal  remedy  of  com- 
pensatory damages  would  be  complete  and  adequate.  The  in- 
completeness and  inadequacy  of  the  legal  remedy  is  the  criterion 
which,  under  the  settled  doctrine,  determines  the  right  to  the  equi- 
table remed.v  of  injunction.-  In  the  treatment  of*  this  twofold 
principle,  I  shall  state  the  general  rules  Avhich  have  been  derived 
from  it,  and  which  regulate  the  exercise  of  the  jurisdiction,  and  shall 
illustrate  these  rules  by  enumerating  the  more  important  instances 
to  which  they  have  been  applied.  The  general  object  of  the  dis- 
cussion will  be  to  show  when  an  injunction  may  be  granted.' 
§  1339.     To  Protect  Purely  Equitable  Estates  or  Interests,  and  in 

limits  of  the  jurisdiction.  If  "an  ounce  of  prevention  is  worth  a  pound  of 
cure,"   tliis  tendency   is   clearly   opposed   to  the  best   interests   of   society. 

-Watson  V.  Sutherland,  5  \\all.  74,  1  Ames  Eq.  Jur.  ,531,  H.  &  B.  741.  1  Scott, 
134,  Shep.  22.  • 

■■•The  general  efl'ect  produced  by  some  text-books  and  judicial  opinions 
might  lead  tlie  reader  to  suppose  that  the  main  object  of  the  writers  or  the 
judges  was  to  show  when  injunctions  could  not  be  granted.  The  full  force 
and  effect  of  this  most  beneficial  remedy,  and  the  freedom  with  which  it  is 
granted  by  courts  of  the  highest  authority,  can  only  be  ascertained  by  an 
actual   examination  of  the  decided  cases. 

Preliminary  or  ■interlocutor)/  injunctions  are  granted  to  preserve  the  prop- 
erty in  statu  quo  pending  the  determination  of  the  suit — "to  prevent  such  a 
change  of  the  conditions  and  relations  of  persons  and  property  during  the  liti- 
gation as  may  result  in  irremediable  injury  to  some  of  the  parties  before  their 
claims  can  be  investigated  and  adjudicated."  City  of  Newton  v.  Levis,  79  Fed. 
715,  25  C.  C.  A.  561,  49  U.  S.  App.  266.  It  is  "a  matter  resting  altogether  in 
the  discretion  of  the  court,  and  ought  not  to  be  granted  unless  the  injuiy  is 
pressing  and  the  delay  dangerous":  New  York  Printing,  etc.,  Co.  v.  Fitch.  1 
Paige,  97,  1  Keener.  562.  It  is  not  necessary,  however,  that  the  court  be 
satisfied  that  the  plaintiff  will  certainly  prevail  on  the  final  hearing;  a  probable 
right,  and  a  probable  danger  that  such  riglit  will  be  defeated,  without  the 
special  interposition  of  the  court,  is  all  that  need  be  sho^^•n.  When  there  is 
grave  doubt  as  to  the  complainant's  right,  preliminary  relief  will  generally 
be  denied.  See  McHenry  v.  .Tewett,  90  N.  Y.  58,  H.  &  B.  743.  See,  also,  post, 
H  1350a,  1352b,  1352d,  1357,  n.  2,  1359. 


815  iNJUxcTioxs :    eolitablk    ixtekests    and    I?KMEDIES.    5j  loo!) 

Aid  of  Purely  Equitable  Remedies. — Tlu-  juiisdictiuu  to  grant  in- 
junctions restraining  acts  in  violation  of  trusts  and  liduciary  ob- 
ligatious,  or  in  violation  of  any  other  purely  equitable  estates,  in- 
terests, or  claims  in  aud  to  specific  property,  is  really  commensurate 
with  the  equitable  remedies  given  to  enforce  trusts  and  fiduciary 
duties,  or  to  establish  and  enforce  any  other  equitable  estates,  in- 
terests, or  claims,  with  respect  to  specific  things,  whether  lands, 
chattels,  securities,  or  funds  of  money,  or  to  relieve  against  mis- 
take, or  fraud  done  or  contemplated  with  respect  to  such  things. 
In  all  such  cases  the  question  whether  the  remedy  at  law  is  ade- 
quate cannot  arise ;  much  less  can  it  be  the  criterion  by  which  to 
determine  whether  an  injunction  can  be  granted;  for  there  is  no 
remedy  at  law.  Since  the  estate,  interest,  or  claim  of  the  com- 
plainant is  purely  equitable,  it  is  exclusively  cognizable  by  equity; 
and  if  its  existence  is  shown,  a  court  of  equity  not  only  has  the 
jurisdiction,  but  is  bound  to  grant  every  kind  of  remedy  necessary 
to  its  complete  establishment,  protection,  and  enforcement  accord- 
ing to  its  essential  nature.  ]Many  breaches  of  trust  are  of  such  a 
nature  tliat,  if  accomplished,  they  would  completely  defeat  tlie 
right  of  the  beneficiary  to  the  specific  trust  property.  The  equitable 
reliefs  against  mistake  or  fraud  with  respect  to  specific  equitable 
property,  aud  the  equitable  remedies  of  all  kinds  to  enforce  trusts. 
express  or  by  operation  of  law,  and  fiduciary  duties  concerning 
specific  property,  and  to  enforce  any  other  equitable  estate,  interest, 
lien,  or  right  in  or  over  specific  property,  would  be  of  comparatively 
little  practical  value,  unless  the  court  could  by  injunction  restrain 
the  alienation,  transfer,  or  encumbrance  of  such  property,  and  all 
other  modes  of  dealing  with  it  which  would  prejudice  the  rights  of 
the  coinplainant,  and  prevent  him  from  acquiring  the  title,  or  from 
enjoying  his  estate,  or  from  enforcing  his  claim,  or  from  receiving 
the  full  benefits  of  his  final  relief.^  It  may  therefore  be  stated  as 
a  general  proposition,  that  whenever  the  equitable  relief  against 
mistake  or  fraud  with  respect  to  specific  property,  or  the  equitable 
remedy  of  enforcing  trusts  or  fiduciary  duties  concerning  specific 
property,  or  of  enforcing  any  other  equitable  estates,  interests,  or 
claims  in  or  to  specific  property  requires  the  aid  of  an   injunction .. 

'  It  is  true  that  in  suits  concorning-  land,  tho  statute  aulhorizinjx  a  notice 
of  lis  pendens  to  bo  filed  afTords  some  security  to  the  complainant  against 
transfers  and  encumbrances  pending  the  suit.  But  this  statute  does  not 
affect  tlie  truth  nor  generality  of  the  propositiou  contained  in  the  text.  .1^ 
the  utmost,  it  only  shows  that  in  such  cases  "the  aid  of  an  injunction  is  not 
required."  But  the  notice  of  lis  pendens  is,  at  best,  only  a  partial  relief;  it 
does  not  prevent  a  transfer;  it  does  not  even  obviate  the  necessity  of  an  in- 
junction in  many  suits  concerning  land;  and  it  does  not  generally  extend  to 
other  suits  at  all. 


§  1340  EQUITY    JURlSPRLDRNCi:.  816 

a  court  of  equity  has  jurisdiction,  and  will  exercise  that  jurisdic- 
tion, to  grant  an  injunction,  either  pending  the  suit  or  as  a  part 
of  the  tinal  decree,  to  restrain  a  breach  of  trust  or  of  fiduciary 
duty,  or  to  restrain  an  alienation,  transfer,  assignment,  encum- 
brance, or  other  kind  of  dealing  with  the  property,  whieli  would 
be  in  violation  of  the  trust  or  fiduciary  duty,  or  in  fraud  of  the 
complainant's  rights,  and  which  would  therefore  interfere  with  and 
prejudice  the  ultimate  remedies  to  which  he  may  be  entitled  witl) 
respect  to  such  property.  The  particular  instances  to  which  this 
doctrine  is  applied  are  almost  numberless,  and  extend  through  the 
entire  range  of  equitable  remedies  against  mistake  and  fraud,  or 
to  enforce  trusts  and  fiduciary  duties,  or  to  establish  and  enforce 
other  equitable  estates,  interests,  liens,  and  primary  rights  in  and 
to  specific  property  of  any  kind  or  form. 

§  1340.  The  Same. — Particular  Instances. — Among  the  instances 
in  which  equity  will  grant  an  injunction,  preliminary  or  final, 
in  pursuance  of  the  general  doctrine  as  stated  in  the  foregoing 
Pel ra graph,  the  following  are  some  of  the  most  important,  and  they 
fully  illustrate  and  establish  the  doctrine  itself,  in  all  its  generali- 
ty, and  the  grounds  upon  which  it  rests :  To  prevent  the  transfer 
of  negotiable  instruments,  at  the  suit  of  the  defrauded  maker  or 
acceptor,  or  of  the  party  claiming  to  be  the  true  owner,  or  to  have 
an  interest  in  them  -^  or  the  transfer,  under  like  circumstances,  of 
stocks  or  other  securities  not  strictly  negotiable;-  or  even  the 
transfer  of  chattels  Avhen  of  a  special  nature  and  value,  such  as 
diamonds,  and  the  like  articles;^  to  prevent  a  payment  of  money 
in  violation  of  a  trust;*  to  restrain  a  breach  of  trust;"'  to  prevent 

'  See  post,  chapter  on  cancellation. 

-  1(1. 

■"The  jnrisdictifni  in  such  case  depends  upon  the  same  reasons  as  the 
analofjous  jurisdiction  to  compel  the  delivery  up  of  such  xmique  chattels,  or 
the  specitic  performance  of  contracts  for  their  sale:     Post,  §   1402. 

*  Drake  v.  Wild.  6.5  Vt.  Oil,  27  Atl.  427. 

'  In  suits  l)y  a  beneficiary  ayainst  his  trustee  an  injunction,  if  needed, 
will  be  granted  as  a  matter  of  course.  See  Lee  v.  Simpson,  37  Fed.  12.  2  L.  R.  A. 
1)59  (preliminary  injunction  to  restrain  alienation  of  land);  Dance  v.  Golding— 
hiiiii,  L.  H.  8  Ch.  002  (sale  with  conditions  attached  which  tend  to  depreciate 
the  property). 

To  restrain  violations  of  confidence,  by  the  disclosure  or  unfair  use  of  knowl- 
edge which  has  come  to  the  defendant  in  the  course  of  a  confidential  employ- 
ment. Little  V.  Kingswood  Coll.  Co.,  L.  R.  20  Ch.  D.  733  (to  prevent  an  attor- 
ney from  acting  against  a  former  client)  ;  Gower  v.  Andrew,  59  Cal.  119,  43 
Am.  Rep.  242  (to  ]>revent  a  confidential  clerk  from  secretly  securing  for  him- 
self ilie  renewal  (if  the  lease  of  his  employer's  business  premises;  see  ante, 
g  10.10)  :   I'ollard  v.  Pholographic  Co..  40  Ch.  D.  :U.t.  1  Keener.  70. 

To  restrain  (lisrlosure  of  trade  secrets. — An  a))])lica(  ic>n  of  the  last  mentioned 
principle   is   seen   in  the  well   established   jurisdiction   1(i   enjoin   the  disclosure  or 


817         INJUNCTION  AGAINST  BUKACJL  OF  CONTRACT.      §  13-il 

a  defendant  from  affecting  or  encumbering  the  property  in  litiga- 
tion by  contract,  conveyance,  mortgage,  or  any  other  act;*^  and,  in 
general,  in  all  suits  to  enforce  an  equitable  right  against  specific 
property, — as  to  enforce  an  etiuitable  estate  and  compel  the  con- 
veyance of  the  legal  title,  to  enforce  a  trust,  or  an  equitable  lien,' 
to  compel  the  specific  performance  of  a  contract,  and  the  like, — 
the  court  will  grant  an  injunction  to  restrain  a  threatened  transfer 
of  the  property,  whether  land,  chattels,  or  securities,  during  the 
pendency  of  the  action. 

§  1341.  To  Prevent  the  Violation  of  Contracts. — An  injunction 
restraining  the  breach  of  a  contract  is  a  negative  specific  enforce- 
ment of  that  contract.  The  jurisdiction  of  equity  to  grant  such 
injunction  is  substantially  coincident  Avith  its  jurisdiction  to  com- 
pel specific  performance.  Both  are  governed  by  the  same  doctrines 
and  rules;  and  it  may  be  stated  as  a  general  proposition  that  wherev- 
ei*  the  contract  is  one  of  a  class  which  will  be  affirmatively  spe- 
cifically enforced,  a  court  of  equity  will  restrain  its  breach  by  in- 
junction, if  this  is  the  only  practical  mode  of  enforcement  which 
its  terms  permit.  Where  the  agreement  stipulates  that  certain 
acts  shall  not  be  done,  an  injunction  preventing  the  commission 
of  those  acts  is  evidently  the  only  mode  of  enforcement ;  but  the 
remedy  of  injunction  is  not  confined  to  contracts  whose  stipulations 
are  negative;  it  often  extends  to  those  which  are  affirmative  in 
their  provisions,  where  the  affirmative  stipulation  implies  or  includes 
a  negative.  The  universal  test  of  the  jurisdiction,  admitted  alike 
by  the  courts  of  England  and  of  the  United  States,  is  the  inadequacy 
of  the  legal  remedy  of  damages  in  the  class  of  contracts  to  which 
the    particular    instance    belongs.^      This     general     doctrine     is     fullv 

ii<e  of  trade  secrets,  such  as  secret  processes  of  manufacture,  coiiuinniicated  to 
one  in  the  covirse  of  a  confidential  employment.  See  Peabody  v.  Norfolk,  98 
.Mass.  452,  96  Am.  Dec.  664,  2  Keener,  241;  Salomon  v.  Hertz,  40  N.  J.  Eq.  400, 
2  At!.  379,  1  Ames  Eq.  Jur.  128;  O.  &  W.  Thum  Co.  v.  Tloczynski,  114  Midi. 
149.  08  Am.  St.  Rep.  469,  72  N.  W.  140,  38  L.  R.  A.  200,  H.  &  B.  755.  See, 
also.  Simmons  Hardware  Co.  v.  V\aibei,  1  S.  D.  488,  36  Am.  St.  Rep.  755,  47 
N.  W  .  814,  11  L.  R.  A.  267  (receiver  appointed  of  a  secret  code). 
See  ante,  §   1338,  note,  as  to  preliminary  injunctions. 

•Williams  v.  Harlan,  88  Md.  1,  71  Am.  St.  Rep.  394,  41  Atl.  51:  Robin>on 
V.  Pickering,  L.  R.  16  Cli.  Div.  371,  660  (in  suit  to  enforce  married  woman's 
contract  against  her  separate  estate,  an  injiniction  resti-aining  her  from  alien- 
ing her  property  will  not  be  granted,  because  her  contract  creates  no  lien  or 
charge  on  her  estate). 

'  As  to  enjoining  breach  of  an  allirmative  slipulation  wiiich  implies  or 
includes  a  negative,  see  post.  S   1343,  note. 

l^reaches  of  some  particular  stipulation  have  frequently  been  enjoined,  not- 
witlislanding  ihat  otlier  parts  of  the  contract  were  in  tlicii-  nature  incapable  of 
.specific  performance,  either  allirmatively  or  by  injunction:  see.  for  example. 
Wliiltaker  v.  Howe,  3  Beav.  3S3,  2  Keener,  209;   Rolfe  v.  Rolfc,  15  Sim.  88,  2 


§  1343  EQUITY  JURISPKUDEXCK.  818 

sustained  by  the  eases  cited  in  the  succeeding  paragraphs  as  illus- 
trations of  its  application.  A  clearer  notion  of  the  doctrine  will 
perhaps  be  obtained  by  considering  the  contracts  to  which  it  ap- 
plies in  three  main  classes :  1.  Those  restrictive  covenants  which 
create  equitable  easements;  2.  Agreements  stipulating  for  personal 
services  or  acts;  3.  Other  agreements,  generally  negative  in  their 
nature. 
§  1342.    1.  Restrictive  Covenants  Creating'  Equitable  Easements.^ 

§  1343.    2.  Contracts  for  Personal  Services  or  Acts. — Where  a 

contract  stipulates  for  special,  unicpie.  or  extraordinary  personal 
services  or  acts,  or  for  such  services  or  acts  to  be  rendered  or  done 
by  a  party  having  special,  unique,  and  extraordinary  qualifications, 
— as,  for  example,  by  an  eminent  actor,  singer,  artist,  and  the  like, 
— it  is  plain  that  the  remedy  at  law  of  damages  for  its  breach 
might  be  wholly  inadequate,  since  no  amount  of  money  recovered 
by  the  plaintiff  might  enable  him  to  obtain  the  same  or  the  same 
kind  of  services  or  acts  elsewhere,  or  by  employing  any  other  per- 
son. It  is.  however,  a  familiar  doctrine  that  a  court  of  equity 
will  not  exercise  its  jurisdiction  to  grant  the  remedy  of  an  affirmnfii-e 
specific  performance,  however  inadequate  may  be  the  remedy  of 
damages,  whenever  the  contract  is  of  such  a  nature  that  the  decree 
for  its  specific  performance  cannot  be  enforced  and  its  obedience 
compelled  by  the  ordinary  processes  of  the  court.  A  specific  per- 
formance in  such  cases  is  said  to  be  impossible;  and  contracts  stip- 
ulating for  personal  acts  have  been  regarded  as  the  most  familiar 
illustrations  of  this  doctrine,  since  the  court  cannot  in  any  direct 
manner  compel  an  actor  to  act,  a  singer  to  sing,  or  an  artist  to 
paint.  Applying  the  same  course  of  reasoning,  the  English  courts 
formerly  held  that  they  could  not  negatively  enforce  the  specific 
performance  of  such  contracts  by  means  of  an  injunction  restraining 
their  violation.^    Those  courts  have,  however,  entirely  receded  from 


Keener,  218;  Dietrichsen  v.  Cabburn,  2  Phill.  Ch.  52,  1  Ames  Eq.  ,Jur.  108, 
2  Scott,  92,  2  Keener,  220;  Liimley  v.  Wagner,  1  DeGex,  M.  &  G.  604,  1  Ames 
Kq.  Jur.  93,  2  8cott,  90,  2  Keener,  223,  H.  &  B.  614;  Donnell  v.  Bennett,  L.  R. 
22  Ch.  Div.  835,  1  Ames  Eq.  Jur.  114,  2  Scott,  114,  2  Keener,  275,  H.  &  B.  627; 
Singer  Machine  Co.  v.  Union  Button  Hole  Co.,  1  Holmes,  253,  Fed.  Cas.  No.  12, 
904,  1  Ames  Eq.  Jur.  438,  2  Keener,  255;  Peabody  v.  Norfolk,  98  Mass.  452.  96 
Am.  Dec.  064,  2  Keener  241 ;  and  see  post,  §  1405,  note  on  "Mutuality."  Contra, 
see  Hills  v,  Croll.  2  Phill.  Ch.  60,  1  Ames  Eq.  Jur.  427,  2  Scott,  90,  2  Keener 
216;  Iron  Age  Pub.  Co.  v.  W.  U.  T.  Co.,  83  Ala.  498.  3  Am.  St.  Rep.  758,  3  South. 
449,  2  Keener  834;  Welty  v.  Jacobs,  171  HI.  024,  49  N.  E.  723,  40  L.  R.  A.  98, 
H.  &  B.  592. 

SSee  ante,   §   1295. 

'  Kemble  v.  Kean,  0  Sim.  333,   1   Ames  Eq.  Jur.   91;   Kimberley  v.  Jennings, 


819  INJL-\CTIO-\     AGAINST     BHKACII     OF     COXTUACT.  ,i^  i;]43 

this  latter  conclusion.  The  rule  is  now  firmly  established  in  Enpland 
that  the  violation  of  such  contracts  may  be  restrained  by  injunction, 
Avhenever  the  leual  remedy  of  damages  would  be  inadequate,  and 
the  contract  is  of  such  a  nature  that  its  negative  specific  enforcement 
is  possible.  This  rule  was  first  applied  to  stipulations  which  were 
in  form  expressly  negative,  but  was  soon  extended  to  affirmative 
.contracts  which  implied  or  involved  negative  stipulations.- 

6  Sim.  340,  2  Keener  204;  among  early  American  cases  to  the  same  effect  see 
tSanquirico  v.  Benedetti,  1  Barb.  315,  2  Scott  85. 

-  The  leading  case  is  Lumley  v.  Wagner,  1  De  Gex,  M.  &  C4.  604.  1  Ames 
Eq.  Jur.  93,  2  Scott  96,  2  Keener  223,  H.  &  B.  614,  in  which  the  defendant, 
a  "prima  donna,"  had  agreed  to  sing  for  a  certain  specified  period  in  tlic 
plaintiff's  opera-house,  and  also  that  she  would  not  sing  elsewiierc  during 
that  time.  The  opinion  by  Lord  Chancellor  St.  Leonards  contains  a  full  review 
of  the  previous  authorities,  and  a  most  able  and  convincing  discussion  of  tlie 
principle.  See,  also,  Daly  v.  Smith,  38  N.  Y.  Super.  Ct.  158.  2  Keener  267; 
lyicCaull  V.  Braham,  16  Fed.  37,  2  Scott  116,  H.  &  B.  607;  Morris  v.  Colman, 
18  Ves.  436,  1  Ames  Eq.  Jur.  89,  2  Scott  87,  2  Keener  197  (playwright  enjoined 
from  writing  for  another  theater)  ;  Philadelphia  Ball  Club  v.  Lajoie,  202  Pa. 
St.  210,  90  Am.  St.  Rep.  627,  51  Atl.  973,  58  L.  R.  A.  227  (professional  base- 
hall  player  enjoined  from  playing  with  any  other  club).  In  Montague  v. 
Floekton,  L.  R.  16  Eq.  189.  1  Ames  Eq.  Jur.  105,  2  Scott  107,  2  Keener  246.  II. 
&  B.  622j  the  rule  was  extended  to  a  contract  by  an  actor  that  contained  no 
negative  stipulation.  But  in  1891  this  case  was  overruled,  and  it  was  held 
that  a  negative  stipulation  will  not  be  implied  even  where  the  defendant  had 
agreed  to  give  the  "whole  of  his  time"  to  the  plaintiff's  business.  Whitwood 
Chemical  Co.  v.  Hardman  [1891].  2  Ch.  416,  1  Ames  Eq.  Jur.  117.  2  Scott  110, 
2  Keener  284.  Shep.  296  (see  also  Clarke  v.  Price,  2  Wils.  Ch.  157.  2  Scott  89, 
2  Keener  199,  H.  &  B.  612,  where  Lord  Eldon  refused  to  enjoin  the  defendant 
from  writing  law  books  for  another  firm,  in  the  absence  of  an  express  nega- 
tive stipulation);  but  this  rule  of  Wliitwood  Chemical  Co.  v.  Hardman  applies- 
only  to  contracts  for  personal  services ;  in  other  kinds  of  contracts  a  negative 
may  still  be  implied;  see  Metropolitan  El.  Svipply  Co.  v.  Gender,  [1901]  2  CIi. 
799:  also,  De  Mattos  v.  Gibson,  4  De  Gex  &  J.  276,  1  Ames  Eq.  Jur.  102;  and 
its  restriction  of  the  remedy  to  stipulations  expressly  negative  seems  to  have 
had  little  infiuence  in  this  country;  see  Cort  v.  Lassard,  18  Oreg.  221,  17  Am. 
St.  Rep.  726,  22  Pac.  1054,  6  L.  R.  A.  653;  Daly  v.  Smith,  38  N.  Y.  Sup.  Ct. 
158.  2  Keener  267. 

\\'here  tlie  services  contracted  for  are  neither  special,  extraordinary  nor  unique, 
so  that  the  employer  may  readily  obtain  a  substitute,  equitable  relief  is  refused: 
Rogers  Mfg.  Co.  v.  Rogers,  58  Conn.  356,  20  Atl.  467,  18  Am.  St.  Rep.  278.  7 
L.  R.  A.  779,  2  Keener  295,  H.  &  B.  629,  Shep.  294;  Carter  v.  Ferguson,  58 
Hun  569,  12  N.  Y.  Suppl.  580  (actor)  ;  Cort  v.  Lassard,  18  Oreg.  221,  17  Am. 
St.  Rep.  726,  22  Pac.  1054,  6  L.  R.  A.  653  (acrobat)  ;  Kimberly  v.  Jennings, 
6  Sim.  340,  2  Keener  204. 

It  has  been  held  that  an  employee  cannot  restrain  his  employer  from  dis- 
charging him:  Davis  v.  Foreman,  [1894]  3  Ch.  654;  see.  also,  Welty  v.  .Jacobs, 
171  111.  024.  49  N.  E.  723,  40  L.  R.  A.  98,  II.  &  B.  592;  see  post.  §  1405.  note 
on  Mutuality.  An  injunction  will  not  be  granted  where  the  agreement  is  in- 
definite or  incomplete:  Metropolitan  Exhibition  Co.  v.  Ewing.  42  Fed.  IS,  7 
L.   R.   A.   381,  H.   &   B.   631  ;   or  where  the  employer  is  unable   to   perform   his 


^  13-ii  EQUITY    JclUSPKUDENCE.  820 

§  1344.  3.  Other  Agreements  Generally  Negative  in  their  Nature. 
— In  all  these  agreenients,  where  the  stipulations  are  expressly  neg- 
ative in  form,  and  where  they  belong  to  the  class  of  which  the 
specific  performance  would  be  enforced  if  they  were  affirmative  in 
form,  an  injunction  to  restrain  their  violation  will  be  granted  as 
a  general  rule,  and  almost  as  a  matter  of  course.  The  inadequacy 
of  the  legal  remedy  is  the  criterion;  but  the  fact  that  the  agree 
ment  belongs  to  a  class  which  would  be  specifically'  enforced  neces- 
sarily shows  that  the  legal  remedy  is  inadequate.  The  particular 
instances  of  this  class  are  very  numerous,  and  some  of  the  most  im- 
portant examples  are  placed  in  the  foot-note.^ 

part  of  the  agreement:  Rice  v.  D'Arville,  1G2  Mass.  559,  39  N.  E.  180,  2 
Keener   1071. 

^Agreements,  not  illegal  (see  ante,  §  934),  not  to  carry  on  a  trade.  Stipu- 
lations by  tradesmen  selling  their  bvisiness  not  to  engage  in  similar  business 
within  prescribed  limits  may  be  enforced  by  injunction,  as  a  general  rule, 
because  of  the  difiiculty  of  estimating  damages  for  a  breach  of  the  contract: 
Holfe  V.  Rolfe,  15  .Sim.  88,  2  Keener  218;   Williams  v.  Williams,  2  Swans.  253, 

2  Keener  199;  Angier  v.  Webber,  14  Allen  211,  92  Am.  Dec.  748,  2  Scott  12(); 
Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473,  60  Am.  Rep.  464,  13  N.  E.  419, 
1  Ames  Eq.  Jur.  123;  similar  agreements  between  physicians:  McClurg's  Ap- 
peal, 58  Pa.  St.  51,  H.  &  B.  751:  Wilkinson  v.  Colley,  164  Pa.  St.  35,  30  Atl. 
286,  26  L.  R.  A.   114,  2  Keener  300;   or  between  lawyers:   Whittaker  v.  Howe, 

3  Beav.  383,  2  Keener  209. 

The  benefit  of  the  stipulation  may  be  assigned  with  the  business,  and  the 
assignee's  rights  protected  by  injunction:  Francisco  v.  Smith,  143  N.  Y. 
488,  38  N.  E.  980,  I  Ames  Eq.  Jur.  186.  Other  agreements  not  to  compete; 
as,  by  a  rival  quarry  not  to  supply  stone  to  a  municipal  corporation  during 
a  certain  period:  Jones  v.  North,  L.  R.  19  Eq.  426,  2  Keener  273.  Contracts 
"•ivino-  the  plaintitf  the  exclusive  right  to  buy  articles  manufactured  or  pro- 
duced by  the  defendant,  or  constituting  the  plaintiff  the  sole  agent  for  their 
sale,  have  frequently  been  enforced  by  enjoining  the  sale  of  the  articles  by  the 
defendant  to  third  parties:  Dietrichsen  v.  Cabburn,  2  Phill.  Ch.  52,  1  Ames 
Eq.  Jur.  108,  2  Scott  92,  2  Keener  220;  Donnell  v.  Bennett,  L.  R.  22  Ch.  D.  835, 
1  Ames  Eq.  Jur.  114,  2  Keener  275,  2  Scott  114,  H.  &  B.  627;  Singer  Sewing 
[Machine  Co.  v.  Union  Button  Hole  Co.,  I  Holmes  253,  Fed.  Cas.  No.  12,904,  1 
Ames  Eq.  Jur.  438,  2  Keener  255  (contracts  making  plaintift'  sole  agent  for  a 
patented  article)  ;  Manhattan  Mfg.,  etc.,  Co.  v.  New  Jersey,  etc.,  Co.,  23  N.  J. 
Eq.  161,  H.  &  B.  747,  2  Keener  568.  On  the  other  hand,  the  court  refused  to 
enjoin  the  breach  of  a  contract  to  sell  to  plaintiff  all  the  coal  defendants  should 
get  from  a  certain  mine,  since  coal  is  an  article  of  such  a  common  character 
that  an  ordinary  contract  for  the  sale  of  it  would  not  be  specifically  enforced: 
Fothergill  v.  Rowland,  L.  R.  17  Eq.  132,  1  Ames  Eq.  .Jur.  Ill,  2  Scott  111,  2 
Keener  261,  PI.  &  B.  599.  Miscellaneous  contracts:  agreements  not  to  disclose 
trade  secrets;  see  ante,  §  1340;  Salomon  v.  Hertz,  40  N.  J.  Eq.  400,  2  Atl.  379, 
1  Ames  Eq.  Jur.  128;  Peabody  v.  Norfolk,  98  Mass.  452,  96  Am.  Dec.  664,  2 
Keener  241;  Fralich  v.  Despar,  165  Pa.  St.  24,  30  Atl.  521,  2  Keener  304.  In- 
junction against  diverting  water  in  bi-each  of  agreement:  Dickenson  v.  Grand 
.Junction  Canal  Co.,  15  Beav.  260,  2  Keener  312;  against  running  trains  past 
a  station  without  stopping,  in  violation  of  contract:  Hood  v.  North  Eastern 
Ry..  L.  K.  8  Eq.  666,  5  Ch.  525,  1  Ames  Eq.  Jur.  82,  2.  Scott  76,  2  Keener  160. 


821  IXJL'XCTJON  :      MISLELLAXEOLS     CASES  §1315 

§  1345.  Miscellaneous  Cases. — As  has  already  been  slated,  an 
injimction  will  always  be  granted,  if  necessary,  to  protect,  aid, 
or  enforce  any  equitable  estate,  interest,  or  primary  right,  or  to 
secure  and  render  efficient  any  purely  equitable  remedy'.  Amoim 
the  most  important  instances  in  which  this  general  doctrine  is  ap- 
plied, in  addition  to  those  already  mentioned,  are  the  following: 
Against  Corporations  and  their  directors  and  officers,  to  re.strain  acts 
which  are  illegal,  ultra  vires,  or  in  violation  of  their  fiduciary  duties.^ 
While  the  right  to  membership  in  a  corporation,  or  to  be  a  corpora- 
tion officer,  cannot,  in  general,  be  tested  by  means  of  an  injunc- 
tion,- the  improper  or  unlawful  expulsion  of  a  member  from  a  vol- 
untary association  without  good  cause,  or  in  violation  of  its  by- 
laws, may  be  restrained  by  injunction.^  Between  Mortgagors  and 
mortgagees.*  Against  Fuhlic  Officers.  An  injunction  will  not  be 
granted,  in  general,  to  restrain  persons  from  acting  as  public  offi- 
cers;^  but  the  illegal,  unlawful,   or   improper   acts  of  public   offi- 

'  The  general  subject  of  suits  against  coi-porations,  and  their  manaoing 
officers,  based  upon  their  trust  rehitions,  and  their  acts  in  violation  thereof, 
has  already  been  considered:  Ante,  §§  1091-1096.  In  all  such  suits  an  in- 
junction may  be  granted  either  as  the  sole  remedy,  or  in  connection  witli 
the  remedies  of  rescission,  cancellation,  accounting  etc.  In  connection  with 
the  cases  there  cited,  see  also  the  following  as  illustrations:  To  restrain 
ultra  vires  acts:  (See  Attorney  Gen.  v.  Tudor  Ice  Co.,  104  Mass.  239,  6  Am. 
.St.  Rep.  227,  Shep.  3;  Kean  v.  Johnson,  9  N.  J.  Eq.  401;  Byrne  v.  Schuyler 
E.  M.  Co.,  65  Conn.  336,  31  Atl.  833,  28  L.  R.  A.  304.  To  restrain  unlawful 
acts  of  directors  or  managing  officers  in  violation  of  their  fiduciary  duties: 
Carlisle  v.  South  Eastern  Ry.,  1  Macn.  &  G.  689  (payment  of  illegal  dividends)  : 
^Memphis  &  C.  R.  Co.  v.  Woods,  88  Ala.  630,  16  Am.  St.  Rep.  81,  7  South.  lOS. 
7   L.   R.  A.  605. 

-Unless  the  question  arises  incidentally  in  a  suit  of  which  the  court  has 
jurisdiction  on  other  grounds:  Kean  v.  Union  Water  Co.,  52  N.  J.  Eq.  813,  46 
Am.  St.  Rep.  538,  31  Atl.  282.     The  proper  remedy  is  by  quo  warranto. 

"Labouchere  v.  Earl  of  WharnelifTe,  L.  R.  13  Ch.  D.  346;  Ryan  v.  Cudahy, 
157  111.  108,  48  Am.  St.  Rep.  305,  41  N,  E.  760,  49  L.  R.  A.  353  (expulsion 
from  a  boai'd  of  trade  without  opportunity  to  make  a  defense).  As  to  injunc- 
tion to  protect  the  property  rights  of  conflicting  factions  in  an  ecclesiastical 
body,  see  Watson  v.  Jones,   13  Wall.  679,  20  L.  ed.  666. 

*To  restrain  mortgagee  from  improper  sale  under  a  power  of  sale,  by  ad- 
vertisement, etc.:  Warner  v.  Jacob,  L.  R.  20  Ch.  Div.  220;  McCalley  v.  Otey, 
99  Ala.  584,  42  Am.  St.  Rep.  87,  12  South  406.  To  restrain  mortgagor  from 
committing  waste,  tinder  certain  circumstances,  or  doing  other  acts  to  the 
property  whereby  the  security  would  be  imperiled.  See  post,  under  head  of 
Waste. 

''The  legal  remedy  is,  in  general,  adequate  to  test  the  right  to  a  public 
office:  Arnold  v.  Henry,  155  ]\lo.  48,  78  Am.  St.  Rep.  556,  55  S.  W.  1089. 
Eqtiity  has  no  jurisdiction  to  control  an  election  to  office,  in  any  of  its  processes 
or  stages:  Fletcher  v.  Tuttle,  151  111.  41,  42  Am.  St.  Rep.  220,  37  N.  E.  683, 
25  L.  R.  A.  143;  Alderson  v.  Commissioners.  32  W.  Va.  640,  25  Am.  St.  Rep. 
840,   9   S.   E.   868,  5  L.   R.   A.   334;    nor  to   restrain   removal   from   office;    In    re 


§  1345  EQUITY    JLTilSPKUDKNCE.  8"-^*^ 

cers  may  be  restrained  when  they  Avould  produce  irreparable  in- 
jury, or  create  a  cloud  upon  title,  or  Avhen  such  remedy  is  necessary 
to  prevent  a  multiplicity  of  suits."    To  prevent  a  Cloud  upon  Tilii' 

Sawyer,  124  U.  S.  200,  8  Sup.  Ct.  482,  31  L.  ed.  402,  Shep.  5;  White  v.  Berry. 
171  U.  S.  366,  18  Sup.  Ct.  917,  43  L.  ed.  199.  It  may,  however,  protect  the 
possession  of  a  de  facto  officer  against  the  interference  of  an  adverse  cdaimant, 
pending  the  establishment  of  the  disputed  title  by  legal  proceedings:  State  v. 
Superior  Court,   17  Wash.   12,  61  Am.  St.  Eep.  893,  48  Pac.  741. 

"  See  Louisiana  Board  of  Liquidation  v.  McConib,  92  U.  S.  531,  23  L.  ed. 
623;  People  v.  Canal  Board,  55  N.  Y.  390,  1  Keener  100;  State  v.  Lord,  28  Oreg. 
498,  43  Pac.  471,  31  L.  R.  A.  473.  But  an  injunction  will  not  issue  to  restrain 
political  acts  of  public  officers:  State  of  Georgia  v.  Stanton,  6  Wall.  10,  18  L. 
ed.  721;  nor  where  the  suit  is  in  efi'ect  one  against  the  state:  Ex  parte  Ayres, 
123  U.  S.  443,  8  Sup.  Ct.   164,  31  L.  ed.  216. 

Injunctions  against  municipal  corporations  and  their  officers.  The  illegal 
acts  of  municipal  officials  form  one  of  the  most  frequent  subjects  for  injunction. 
Suit  may  be  brought  on  behalf  of  the  state  by  the  attorney  general  or  other 
proper  officer:  State  v.  County  Court  of  Saline  County,  51  Mo.  3.50,  11  Am. 
Kep.  454;  but  more  commonly,  at  the  present  day,  the  suit  is  institvited  by  one 
01-  more  tax-payers  on  behalf  of  the  whole  body  of  tax-payers  of  the  munici- 
pality; the  fact  that  the  illegal  act  of  the  municipal  officers,  involving  the 
expenditure  of  public  moneys  or  the  creation  of  public  indebtedness,  will  usually 
result  in  increasing  the  burden  of  taxation,  is  considered  to  give  the  tax-payers, 
as  a  class  specially  injured,  a  sufficient  standing  in  a  court  of  equity.  There  is 
some  analogy  between  the  relation  of  tax-payers  to  the  municipal  government,  and 
that  of  stockholders  to  the  governing  body  of  a  private  corporation:  see  ante, 
§§  1088-1096;  Dillon,  Mim.  Corp.  §  915;  Russell  v.  Tate,  52  Ark.  541,  20  Am.  St. 
Kej).  193.  13  S.  W.  130,  7  L.  R.  A.  180;  in  general,  see  Crampton  v.  Zabriskie, 
101  r.  S.  601,  25  L.  ed.  1070  (a  leading  case)  ;  Xewmeyer  v.  Missouri  &  M. 
R.  Co.,  52  Mo.  81,  14  Am.  Rep.  394;  Mayor,  etc.,  of  Baltimore  v.  Gill,  31  Md. 
375;  Harney  v.  Indianapolis,  etc.,  R.  Co.,  32  Ind.  244;  Pom.  Eq.  Rem.  §  345, 
and  quotations.  Among  the  acts  most  frequently  thus  enjoined  are,  the  un- 
authorized issue  of  municipal  bonds  in  aid  of  the  construction  of  railways  or 
other  public  works:  Newmeyer  v.  R.  Co.,  supra;  incurring  of  indebtedness  in 
excess  of  a  limit  prescribed  by  law:  Honaker  v.  Board  of  Education,  42  W.  Va. 
170.  57  Am.  St.  Rep.  847,  24  S.  E.  ,544,  32  L.  R.  A.  413:  violation  of  laws 
1o  tlie  eftect  that  contracts  must  be  let  to  the  "lowest"  or  the  "lowest  responsi- 
ble" bidder,  or  the  like:  Adams  v.  Brenan,  177  111.  194,  69  Am.  St.  Rep.  222, 
52  N.  E.  314,  42  L.  R.  A.  718;  other  illegal  expenditures  of  public  moneys:  The 
Liberty  Bell,  23  Fed.  843;  or  use  of  public  property  for  private  purposes; 
Schofield  V.  School  Dist.,  27  Conn.  499  (use  of  vacant  school  house).  The 
remedy  is  subject  to  some  important  limitations.  It  should,  by  the  weight  of 
authority,  and  as  a  general  rule,  be  directed  against  the  enforcement  of  the 
invalid  ordinance,  rather  than  against  the  legislative  action  of  passing  the 
ordinance:  Alpers  v.  San  Francisco,  12  Savw.  631,  32  Fed.  .503.  per  Field. 
.].:  Lewis  v.  Denver  City  Waterworks  Co.,  19  Colo.  236.  41  Am.  St.  Rep.  248, 
74  I'ac.  993:  Stevens  v.  St.  Mary's  Training  School,  144  111.  336,  36  Am.  St. 
Kep.  438,  32  N.  E.  962,  18  L.  R.  A.  832;  (for  exceptions,  see  Pom.  Eq.  Rem.  § 
341 ;  Roberts  v.  City  of  Louisville,  92  Ky.  95,  36  Am.  St.  Rep.  469,  17  S.  W.  216, 
13  L.  R.  A.  844)  ;  and  it  cannot  interfere  with  the  exercise  of  a  discrelionary 
power,  unless  tainted  witli  fraud  or  manifestly  abused:  McCarmel  v.  Shaw, 
155  111.  37,  46  Am.  St.  Rep.  311,  39  N.  E.  584,  27  L.  R.  A.  580.     A'oid  munici- 


823  INJUNCTION  :     MISCELLANEOUS     CASES,  §  1345 

The  use  of  the  injunction  to  prevent  acts  which  would  create  a  cloud 

pal  ordinances  are  frequently  enjoined  on  other  -grounds  tlian  that  of  injury 
to  the  plaintiti'  in  his  capacity  as  a  tax-payer:  as,  where  tlie  enforcement  of 
such  ordinance  Avould  result  in  a  multiplicity  of  suits:  Third  Ave.  R.  R.  Co. 
V.  Mayor,  54  N.  Y.  159,  2  Ames  Eq.  Jur.  102,  1  Keener,  167;  City  of  Chicago 
y.  Collins,  175  111.  445,  67  Am.  St.  Rep.  224,  51  N.  E.  907,  49  L.  R.  A,  408, 
2  Ames  Eq.  Jur.  92;  ante,  §§  254,  261;  or  in  irreparable  injurj'  to  the  plain- 
tiff's private  rights:  Manhattan  Iron  Works  Co.  v.  French,  12  Abb.  N.  C.  44G, 
2  Ames  Eq.  Jur.  107;  City  of  Austin  v.  Austin  City  Cemetery  Assn.,  87  Tex. 
;«0,  47  Am.  St.  Rep.  114,  28  S.  W.  528. 

Injunction  against  taxation. — The  rules  in  the  different  states,  and  in  the 
federal  courts,  regarding  the  issuing  of  injunctions  to  restrain  the  collection 
Mf  invalid  taxes  are  far  from  uniform.  In  general,  the  states  may  be  divided 
into  two  classes.  In  the  states  of  the  first  class,  the  mere  illegality  of  the  tax 
is  not  ground  for  equitable  relief.  There  must  be  in  every  case  of  the  threatened 
enforcement  of  an  invalid  tax,  "some  special  circumstance  which  distin- 
guishes it  from  a  common  trespass,  and  brings  the  case  under  some  recognized 
head  of  equity  jurisdiction  before  the  extraordinary  and  preventive  remedy  of 
injunction  can  be  invoked":  Wells,  Fargo  &  Co.  v.  Dayton,  11  Nev.  161; 
Dows  v.  City  of  Chicago,  11  Wall.  108,  20  L.  ed.  65  (the  leading  case).  Thus, 
an  injunction  rarely  issues  to  prevent  the  collection  of  -an  invalid  tax  on  per- 
sonal property,  since,  if  it  be  seized  for  non-payment  of  the  tax,  the  officers 
are  liable  in  trover  or  trespass,  and  damages  are  presumed  to  be  full  compen- 
sation: see  White  v.  Stender,  24  W.  Va.  615,  49  Am.  Rep.  283;  Shelton  v.  Piatt, 
139  U.  S.  595,  11  Sup.  Ct.  646,  35  L.  ed.  276;  otherwise  where  the  seizure  will 
work  irreparable  injury:  Southern  Ry.  Co.  v.  City  of  Asheville,  69  Fed.  359. 
Fraud  is  often  mentioned  as  a  proper  ground  for  equitable  relief;  as  in  case 
of  a  systematic  and  illegal  discrimination  against  the  complainant:  Louisville 
Trust  Co.  V.  Stone,  107  Fed.  305,  46  C.  C.  A.  299.  The  avoidance  of  a  multi- 
plicity of  suits  as  a  ground  for  jurisdiction  has  already  been  fully  discussed ; 
see  ante.  §§  258-260,  265,  266,  270,  and  notes.  The  prevention  and  removal  of 
clouds  on  title  is  a  familiar  ground  of  equity  jurisdiction;  inasmuch  as  taxes 
on  realty,  and  sometimes  those  on  personalty  as  well,  are  generally  made  a  lien 
upon  real  estate,  relief  against  tax  proceedings  not  defective  upon  their  face 
is  frequently  had  upon  this  ground:     see  post,  §§  1398,  1399. 

In  nearly  half  of  the  states,  the  mere  illegality  of  a  tax  is  (subject  to  some 
limitations),  a  ground  of  jurisdiction  for  its  injunction,  apart  from  any  ques- 
tion of  irreparable  injury,  of  multiplicity  of  suits,  or  of  cloud  on  title. 
No  distinction,  in  principle,  is  made  between  taxes  on  real  and  on  personal  pro]i- 
erty.  Injunction  is  usiially  a  matter  of  right  when  property  exempt  from  taxa- 
tion is  sought  to  be  taxed;  on  the  other  hand,  where  the  question  is  one  of 
an  oppressive  valuation  the  complainant  must,  as  a  general  rule,  first  pursue 
the  statutory  remedy  of  appeal  to  the  board  of  review  or  equalization.  See 
Rom.  Eq.  Rem.  §  363,  ff. 

In  both  classes  of  states  it  is  a  principle  of  general  application  that  mere 
irregularities  in  the  assessment  are  not  suflicient  to  warrant  Ihe  interference  of 
equity;  the  defect  which  renders  the  tax  invalid  must  be  substantial;  see  Rob- 
inson v.  City  of  Wilmington,  65  Fed.  856,  13  C.  C.  A.  177,  25  U.  S.  App.  144; 
Chicago,  R.  &  Q.  R.  Co.  v.  Frary,  22  111.  34;  and  it  is  also  a  general  rule, 
in  application  of  the  maxim,  "He  who  seeks  equity  must  do  equity,"  that  where 
a  tax  is  valid  in  part  and  invalid  in  part,  no  relief  will  be  awarded  unless 
a  payment  or  tender  is  made  of  Ihe  valid  portion:     People's  Nat.  Bank  v.  Marve, 


§  1345  EQUITY    JUKISPKUDENCE.  824 

upon  title  is  governed  by  the  same  rules  which  control  the  remedy 
of  removing  a  cloud  from  title.' 

]!»1  r.  .S.  272,  24  Sup.  Ct.  08,  48  L.  ed.  180,  and  cases  cited;  State  Railroad 
Tax  Cases,  92  U.  S.  616,  23  L.  ed.  074. 

Injunction  against  exercise  of  the  jiotcer  of  eminent  domain. — Injunctions,  in 
tliis  class  of  cases,  are  not  controlled  by  the  principles  which  regulate  injunctive 
relief  against  ordinary  trespasses.  The  constitutional  guaranty  that  "property 
shall  not  be  taken  for  public  vise  without  just  compensation"  by  agents  of  the 
state  to  whom  this  power  is  delegated,  is  deemed  to  establish  a  rigid  of  so 
high  and  sacred  a  character  that  any  threatened  infringement  of  the  right 
should  be  restrained,  without  consideration  of  the  adequacy  of  the  legal  remedy, 
'■'rhe  power  is  so  capable  of  abuse,  and  those  who  are  invested  with  it  are  often 
so  prone  to  its  arbitrary  and  oppressive  exercise,  that  a  court  of  equity,  without 
incjuiring  whether  there  is  irreparable  injury,  or  injury  not  susceptible  of  ade- 
quate redress  by  legal  remedies,  will  intervene  for  the  protection  of  the  owner" ; 
East  &  VV.  R.  Co.  of  Alabama  v.  E.  T.  V.  &  G.  R.  Co.,  75  Ala.  280;  D.  M.  Osborne 

6  Co.  V.  Mo.  Pac.  R.  Co.,  147  U.  S.  248.  13  Sup.  Ct.  299,  37  L.  ed.  155:  Bass 
v.  Metropolitan  W.  S.  El.  R.  Co.,  82  Fed.  857,  27  C.  C.  A.  147,  39  L.  R.  A.  711; 
Jiolton  V.  McShane,  07  Iowa  207,  25  N.  W.  135;  Lewis,  Em.  Dom.  §  632;  Pom. 
]•](].  Rem.  §  465  and  quotations.    See,  also,  Gardner  v.  Newburgh,  2  Johns.  Ch.  102. 

7  Am.  Dec.  526,  1  Scott  740,  1  Keener  054,  H.  &  B.  707.  The  entry  upon  or 
appropriation  of  the  plaintiff's  land  is  the  specific  act  enjoined;  no  injunction 
lies  against  the  prosecution  of  condenniation  proceedings  when  the  matter 
which  is  set  up  as  a  ground  for  injunction  may  be  urged  as  a  defense  in  such 
proceedings:  Black  Hills,  etc.,  R.  Co.  v.  Tacoma  Mill  Co.,  129  Fed.  312,  03  C. 
C.  A.  544;  Lewis,  Em.  Dom.  §  646.  It  is  the  rule  in  most  states  that  the  owner 
of  land  abutting  upon  a  public  street,  who  owns  the  fee  of  the  land  included 
in  such  street  subject  to  the  easement  in  the  pul)lic  for  legitimate  street  purposes, 
can  enjoin  the  use  and  occupation  of  tlie  street  by  a  steani  railroad  in  such 
a  manner  as  to  create  an  ''additional  servitude"  upon  the  street,  if  no  com- 
])ensation  to  such  abutting  owner  has  been  ascertained  or  made:  Williams  v. 
X.  ^■.  Cent.  R.  Co.,  10  X.  Y.  97,  69  Am.  Dec.  651,  1  Ames  Eq.  Jur.  .521.  1  Scott 
700-.  Henderson  v.  N.  Y.  Cent.  R.  Co.,  78  X.  Y.  423,  1  Keener  023.  1  Scott  707. 
lint  in  nearly  all  the  states,  if  the  fee  in  the  street  is  vested,  not  in  the  abutting 
owner  but  in  the  municipality,  he  has  no  remedy  by  injunction  for  the  damage 
(ir  injury  to  the  enjoyment  of  his  property  caused  by  the  authorized  construc- 
licin  or  operation  of  a  railroad  in  the  street:  Stetson  v.  Chicago  &  E.  R.  Co.. 
7.")  III.  74,  1  Ames  Eq.  .Inr.  595.  A  contrary  and  far  more  equitable  rule  was 
established  in  New  York,  as  respects  the  elevated  railroad  structures  of  New 
\(irk  City,  in  a  great  series  of  cases,  beginning  with  Story  v.  N.  Y^.,  etc..  R.  R. 
Co.,  90  N.  Y.  122,  43  Am.  Rep.  146,  and  inchiding  Lynch  v.  Metropolitan  El. 
R.  Co.,  129  X.  Y.  274,  20  Am.  St.  Rep.  523,  29  N.  E.  315,  15  L.  R.  A.  287.  1 
Scott  124,  Shep.  30  (damages  as  incidental  to  relief  in  equity)  ;  O'Reilly  v. 
New  York  El.  R.  Co..  148  N.  Y.  347,  42  N.  E.  1063.  31  L.  R.  A.  407  (no  injunc- 
tion where  no  actual  damage)  ;  Galway  v.  Met.  El.  R.  Co.,  128  N.  Y.  145.  28  N.  E. 
479.  13  L.  R.  A.  788,  1  Ames  Eq.  Jur.  601,  1  Keener  822  (conduct  not  amount- 
ing to  estoppel  or  acquiescence) .  In  view  of  the  great  public  inconvenience  that 
would  have  resulted  from  enjoining  the  operation  of  the  elevated  railroads 
pending  condemnation  proceedings,  the  courts  in  these  cases  determined  the 
amount  of  permanent  damages  to  which  the  plaintiff  was  entitled,  and  made 
the  injunction  conditional  upon  the  refusal  of  the  company  to  pay  the  sum 
so  awarded.     See,  further,  on  the  subject  of  railroads  in  streets,  Pom.  Eq.  Rem. 


825  INJUNCTIONS    TO    PHKVKNT   TOUTS.  §  1346 


SECTION  II. 

TO   PREVENT   OR  RESTRAIN   THE   COMMISSION   OF   TORTS. 

ANALYSIS. 

§   134(5.     Tlie   estates   and   interests  generally   legal. 

§   1347.     Kinds   and   classes   of  torts   restrained. 

§   1348.     Waste.  I 

§   1348a.  Equitable  waste.  ' 

§  1348b.  Waste:     relief  granted;  parties. 

§   1349.     Nuisance:     Public. 

§   1350.     Nuisance:     Private;  when  restrained. 

§   1350a.  Same:     Interlocutory  injunction;  balance  of  injur}';   laches  and 

estoppel. 
§   1350b.  Same:     Form  of  decree;  complete  relief,  etc. 
§   1351.     Same:      Instances;    violations   of   easements. 
§   1352.     Patent  rights  and  copyrights. 
§   13o2a.  Patent  rights,  continued. 
§   1352b.  Same :     temporarj^  injunctions. 
§   1352c.  Same:     complete  relief. 
§   1352d.  Copyrights. 

§  1353.     Literary  property  as  distinct  from  copyright. 
§   1354.     Trade-marks. 
§   1354a..  Exclusive  franchises. 
§  1355.     Good-will. 
§   1356.     Trespasses. 

§   1357.     General  doctrine;   cases  in   which  trespass   may  be  enjoined. 
§   1358.     Slander  of  title;    libels:    '-right   of   privacy";    strikes,   boycotts, 

etc. 

§  1346.  The  Estates  and  Interests  Generally  Legal. — The  estates, 
interests,  and  primary  rights  to  be  secured  by  injunctions  of  this 
kind  are  in  most  instances  legal ;  and  the  injunctions  themselves, 
as  a  class,  are  frequently  described  as  those  for  the  protection  of 
legal  rights  and  interests.  So  far  as  they  do  thus  sustain  and  en- 
force legal  rights,  they  are,  of  course,  supplementary  to  or  in  lieu 
of  the  legal  remedies  which  courts  of  common  law  originally  gave, 
and  perhaps  now  give,  by  action,  under  the  same  circumstances. 
For  this  reason,  the  general  test  as  stated  in  a  former  paragrajib 
applies  with  special  force.  The  inadecjuacy  of  tbe  legal  remedies 
is  the  criterion  which  determines  the  exercise  of  this  preventive 

§§  467-470,  and  cases  cited.  As  to  injunction  at  the  suit  of  abutting  owntT 
against  changing  the  grade  of  a  street  to  his  injure,  see  McElroy  v.  Kansas 
Citv,  21  Fed.  257,  per  Brewer,  .7.  As  to  the  defense  of  acquiescence,  in  eminent 
domain  eases,  see  Galway  v.  Met.  El.  R.  Co..  supra;  City  of  New  York  v. 
Pine,  185  V.  S.  03,  22  Sup.  Ct.  592,  4G  L.  ed.  820. 
'See  post,  §   1398. 


§  134:7  EQUITY    JUIUSPRUDEXCE.  826 

jurisdiction ;  and  the  criterion  is  enforced,  especially  by  the  Ameri- 
can courts,   with  great  strictness. 

§  1347.  Kinds  and  Classes  of  Torts  Restrained. — The  legal  rem- 
edy is  ordinarily  considered  as  adequate  in  cases  of  torts  to  the 
]»erson,  and  to  j^roiDerty  held  by  a  legal  title,  and  equity  does  not 
interfere.^  There  are,  however,  certain  species  of  torts,  in  respect 
to  each  of  which,  as  a  class,  it  is  settled  that  the  legal  remedy  is 
generally  inadequate,  so  that  equity  will  generally  interfere  to 
prevent  the  wrong  by  injunction.  There  are  other  species  of  torts, 
in  respect  to  each  of  which,  as  a  class,  the  legal  remedy  is  ad- 
I'.quate,  but  may  become  inadequate,  in  individual  instances,  from 
tlieir  particular  circumstances,  so  that  in  those  instances  an  injunc- 
ti(in  will  be  granted.  In  the  kind  of  torts  for  which  the  legal 
remedy  is  generally  inadequate,  so  that  an  injunction  is  the  proper 
I'cmedy,  the  title  of  the  injured  party  must  be  clear,  the  injury 
real,  and  not  merely  temporary  or  transient.  They  are  waste, 
nuisance,  including  interference  with  easements,  servitudes,  and 
siinilar  rights,  infrnigements  of  patent  rights,  of  copyrights,  of 
trademarks,  and  of  other  intangible  property  rights,  the  pecuniary 
value  of  which  cannot  be  certainly  estimated,  such  as  literary 
l»roperty  in  manuscript  writings  and  good-will.  In  ordinary  tres- 
passes the  injured  party  is  left  to  his  remedy  of  damages,  but  the 
circumstances  of  a  trespass  to   property — especially   to   real   pro- 

'^  Enjoining  criminal  acts. — An  injunction  is  not  granted  to  restrain  a  crim- 
inal act,  when  no  property  right  is  directly  endangered  by  such  act:  see  Cope  v. 
District  Fair  Assn.,  9!)  ill.  489,  .39  Am.  Rep.  30.  1  Ames  Eq.  Jur.  29  (gambling)  ; 
Ocean  City  Assn.  v.  Schurch,  57  N.  .J.  Eq.  2G8,  41  Atl.  914,  1  Scott  215  (vio- 
lation of  Sunday  laws).  "Something  more  than  the  threatened  commission  of 
:ui  offense  against  the  laws  of  the  land  is  necessary  to  call  into  exercise  the 
injunctive  powers  of  the  court.  There  must  be  some  interferences,  actual  or 
Uneatened,  with  property  or  rights  of  a  pecuniary  nature:  but  when  such  inter- 
ferences appear  the  jurisdiction  of  a  court  of  equity  arises,  and  is  not  de- 
sti'oyed  by  the  fact  that  they  are  accompanied  l)v  or  are  themselves  violations 
of  the  criminal  law":  In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900.  34  L.  ed. 
1092.  Shep.  304.  Thus,  the  fact  that  acts  of  intimidation  by  striking  workmen 
are  often  criminal  is  no  reason  for  not  enjoining  them,  at  the  suit  of  an  employer 
of  labor  whose  property  rights  (often  intangible  rights;  see  post,  §  1358,  n.)  are 
endangered  thereby:  Vegalahn  v.  Guntner.  107  Mass.  92,  57  Am.  St.  Rep.  443, 
44  X.  E.  1077,  35  L.  R.  A.  722,  H.  &  B.  773;  Hamilton-Brown  Shoe  Co.  v. 
Saxey,  131  JMo.  212,  52  Am.  St.  Rep.  622,  32  S.  W.  1106,  H.  &  B.  779.  And  the 
fact  that  a  public  nuisance  is  also  a  crime  is  no  reason  why  it  should  not  be 
enjoined  at  the  suit  of  an  individual  who  suffers  from  it  some  special  damage 
diflerent  and  otlier  than  that  suffered  by  the  rest  of  the  community:  Cranford 
V.  Tj'rrel,  128  N.  Y.  .341,  28  N.  E.  514,  1  Keener  788  (house  of  ill-fame)  ;  oi 
even  where  he  does  not  suffer  special  damage,  if  suit  by  an  individual  is  author-' 
ized  by  statute:  Littleton  v.  Fritz,  65  iowa  488,  54  Am.  Rep.  19,  22  N.  W.  641, 
I  Ames  Eq,  Jur.  31    (injunction  against  selling  liquor). 


S27-  IXJUNCTIOXS    TO    rUEVEXT    TORTS.  §  DMS 

perty — may  be  such  that  the  compensatory  remedy  is  inadeqiiatf . 
and  a  court  of  equity  will  prevent  the  wrong  by  injunction, 

§  1348.  Waste. — Waste  is  the  destruction  or  improper  deteriora- 
tion or  material  alteration  of  things  forming  an  essential  part  of 
the  inheritance,  done  or  suffered  by  a  person  rightfully  in  possession 
by  virtue  of  a  temporarj^  or  partial  estate, — as,  for  example,  a 
tenant  for  life  or  for  years.  The  rightful  possession  of  the  wrong- 
doer is  essential,  and  constitutes  a  material  distinction  between 
Avaste  and  trespass.^ 

I  The  common  law  "action  of  waste,"  as  enlarged  by  early  statutes. 
gave  a  remedy  only  in  favor  of  one  having  an  immediate  estate  of 
inheritance,  so  that  a  person  holding  any  estate  less  than  a  fee.- 
or  one  whose  estate  in  fee  was  preceded  by  a  lesser,  intermediate 
estate,"  had  still  no  remecV  at  law.*  The  remedy  by  injunction. 
<-stabIished  at  an  early  day.  rested  partly  on  these  defects  in  the 
connvion  law,°  but  chiefly  on  the  reason  that  waste  is,  in  its  nature, 
nearly  always  an  irreparable  injury.  So  far  as  the  character  of 
the  injury  is  concerned,  an  injunction  will  be  granted  in  nearly 
all  cases  where  a  legal  action  would  lie  to  recover  possession  of 
the  land  wasted,  or  to  recover  damages.**  To  this  rule  there  are 
three  exceptions:  Equity  will  not  enjoin  ''permissive"  waste,  such 
as  neglect  to  make  repairs;"  nor  "ameliorating"  waste,  i.  e.,  an 
act    which    is    technicallv    waste,    but    in    fact    improves  the  inheri- 

'  ^tany  acts  are  not  waste  in  this  country  which  would  be  waste  in  Enjiland, 
such  as  cutting-  timber,  and  modes  of  using  the  soil,  when  done  in  accordance 
with  the  usual  methods  of  good  husbandry  in  the  neighborhood:  see  Winshij)  v. 
Pitts,  3  Paige  259,  1  Keener  473:  Ci'o\ve  v.  Wilson,  G5  Md.  479,  57  Am.  Rep. 
343,  5  Atl.  427.  Legal  waste,  as  dehned  by  American  courts,  is  nearly  identical 
with  the  "equitable  waste"  described  below. 

^Mollineux  v.  Powell,  3  P.  Wms.  268,  n.  (F),  1  Ames  Eq.  Jur.  468,  1  Scott 
664;  Perrot  v.  Perrot,  3  Atk.  94,  1  Keener,  453. 

^Anonymous.  ]\Ioore  554  pi.  798,  1  Ames  Eq.  Jur.  467;  Kane  v.  Vanderburgli, 
1  dohns.  Ch.  11,  1  Keener  455,  1  Scott  661. 

*2  Blaekst.  Comm.  282,  283:  3  Id.  227. 

*  Skelton  v.  Skelton,  2  Swanst.  170,  1  Ames  Eq.  Jur.  473,  1  Keener,  430, 
1    Scott   656. 

"The  commonest  species  of  injury  enjoined  are,  cutting  timber:  Kane  v. 
\'anderburgh,  1  Johns.  Ch.  11,  1  Keener  455,  1  Scott  661;  Hawley  v.  Clowes,  2 
Johns.  Ch.  122,  1  Ames  Eq.  Jur.  484,  1  Scott  663;  changing,  destroying  or 
removing  buildings:  Davenport  v.  ^Magoon,  13  Oreg.  1,  57  Am.  Rep.  1;  Maddox 
V.  White,  4  Md.  72,  59  Am.  Dec.  67  and  notes;  Klic  v.  VonBroock,  56  N.  J. 
Eq.  18,  37  Atl.  469,  1  Scott  668;  but  see,  as  to  erecting  new  buildings,  Winship 
v.  Pitts,  3  Paige  259.  1  Keener  473:  taking  minerals,  stone,  etc.:  Whitfield  v. 
Bewit,  2  P.  Wms.  240,  1  Ames  Eq.  Jur.  460,  1  Keener  457,  1  Scott  674:  but  see 
as  to  working  old  mines,  Gaines  v.  (Jreen  Pond  1.  1X1.  Co.,  33  X.  .T.  Ep.  603, 
1  Keener  494. 

'  Castlemain  v.  Craven,  22  Vin.  Abr.  523,  1  Ames  Eq.  Jur.  466,  1  Keener  458. 


§  134Sb  EQUITY    JriUSIMUDKXCE.  H28 

tnnee;**  nor  trivial  acts  of  Avaste,  but  will  require  that  substantial 
damage  be  shown.'' ] 

[§  1348a.  Equitable  Waste. — The  doctrine  as  to  "equitable''  waste 
is  a  remarkable  instance  of  the  re.straint  by  a  court  of  equity  of 
the  unrighteous  exercise  of  an  admitted  legal  right.  The  words, 
"Avithout  impeachment  of  waste,"  or  equivalent  words  in  a  lease 
or  other  instrument  creating  an  estate  less  than  a  fee  are  interpret- 
ed at  law  as  giving  the  tenant  an  absolute  power  and  dominion 
over  the  estate.  Courts  of  equity  from  an  early  day,  controlled 
him  in  the  exercise  of  that  power,  upon  the  ground  that  they 
would  "not  permit  an  unconscientious  use  to  be  made  of  a  legal 
power" ;'  finally  adopting  as  the  test  of  the  equitable  waste  wh-ch 
will  not  be  permitted  by  a  tenant  without  impeachment  of  waste, 
"that  which  a  prudent  man  would  not  do  in  the  management  of 
his  own  property."-  The  chief  instances  of  such  acts  are,  the 
destruction  or  removal  of  buildings,^  carrying  away  of  the  soil,* 
cutting  of  trees  or  shrubs  that  had  been  planted  for  ornament  or 
shelter,"'  and  stripping  the  land  of  timber  to  an  extent  forbidden 
by  good  husbandry."] 

[§  1348b.  Relief  Granted — Parties. — The  injunction  is  almost  al- 
ways prohibitive,  but  in  a  proper  ease  may  be  mandatory,  for 
the  restoration  of  the  thing  destroyed.^  The  court  having  acquired 
jurisdiction  for  the  purpose  of  an  injunction  will  give  complete 
relief  by  an  accounting  for  the  waste  already  doner  but  such 
accounting  will  not  be  given,  in  cases  of  legal  waste,  if  an  injunc- 

!*Doherty  v.  Allniaii,  L.  R.  3  App.  Cas.  700,  1  Ames  Eq.  Jur.  4G2,  1  Keener 
476,  1  Scott  664;  Mollineux  v.  Powell,  3  P.  Wms.  268  n.  (F.),  1  Ames  Eq.  Jur, 
468,  1   Scott  664;   Meux  v.  Cobley,  [1892]  2  Ch.  253,  1  Scott  66.5. 

"Molliiiexix  V.  Powell,  supra;  Doherty  v.  AUman,  supra;  Barry  v.  Barry,  1 
Jnc.  &   W.  651,   1   Keener  465. 

'  Micklethwait  v.  Micklethwait,  1  De  G.  &  -1.  504,  524. 

-Turner  v.  Wright,  3  De  Gex,  F.  &  J.  234,  243,  1  Ames  Eq.  Jur.  476,  1  Keener 
441. 

'■'■  W  illianis  v.  Day,  2  Cas.  in  Cli.  32,  1  Ames  Eq.  Jur.  476,  1  Scott  646;  Vane  v. 
Lord  Barnard,  2  Vern.  738,  1  Ames  Eq.  Jur.  470,  1  Keener  455;  Rolt  v.  Lord 
Somerville,  2  Eq.  Cas.  Abr.  759,  1  Ames  Eq.  Jur.  471,  1  Keener  435,  1  Scott  647. 

*  liisliop  of  London  v.  Web,  1  P.  Wms.  527,  1  Keener  434. 

M^ickinoton's  Case,  3  Atk.  215,  1  Keener  459,  1  Scott  649:  CofTin  v.  CniTm, 
•lac.  70,  1  Keener  468;  Wombwell  v.  Belasyse,  6  Ves.  (2d  ed.)  110,  a  note.  1 
Keener  470,  1  Scott  654.  For  a  case  not  amounting  to  waste,  see  Baker  v.  Se- 
bright, L.  R.  13  Ch.  D.  179,  1  Keener  515. 

n^ishop  of  Winchester's  Case,  1  Rolle  Abr.  380  (.7.  3),  1  Ames  Eq.  Jur.  469; 
Dimcombe  v.  Felt,  81   ]\Tich.  332,  45  N.   W.   1004,  H.  &  B.  760,   1   Keener  500. 

'Vane  v.  Lord  Barnard,  2  Vern.  738,  1  Ames  Eq.  Jur.  470.  1  Keener  433; 
Rolt  V.  Lord  Somerville,  2  Eq.  Cas.  Abr.  759,  1  Ames  471,  1  Keener  43.5,  1  Scott 
647;  Klie  v.  Von  Broock,  56  N.  J.  Eq.  18,  37  Atl.  469,  1  Scott  COS. 

^^See  ante,  §  237. 


S29  IXJL'NCTJOX.-S  TO  PRKVENT  TOUTS.  §  13i8lj 

tion  is  not  demanded  or  is  ret'nsed,  since  the  remedy  at  l^vV  iii 
th(  n  deemed  to  be  adequate.''  In  cases  of  equitable  waste,  hovever, 
since  there  is  no  legal  remedy,  an  accounting  may  be  had  w.thom 
an  injunction.^  The  proceeds  of  the  accounting  go  to  t!:e  re 
niainderman  in  fee,  though  there  be  an  intermediate  remUndet- 
2nan  for  life  or  years,^  following  the  legal  rule  that  the  t>ersou 
in  whom  is  the  fee  has  title  to,  and  may  bring  trover  t^iv,  tht 
personalty  w^hieh  results  from  acts  of  waste.*'  In  the  frequent 
ease  where  there  is  a  tenancy  in  A  for  life  or  years,  remainder  th 
B  for  life,  remainder  to  C  in  fee,  either  B^  or  C,^  who  were  wit'u 
out  common  law  remedy,  may  enjoin  waste  by  A.  A  tenant  in 
tail  will  not  be  restrained  from  waste,  because  he  may  at  any  tim^; 
bar  the  entail  and  give  himself  a  fee;"  but  a  tenant  in  tail  after 
possibility  of  issue  extinct  may  be  enjoined  from  committing  equit- 
able waste, ^°  and  the  same  is  true  of  an  owner  in  fee  subject  to 
an  executory  devise.^ ^  A  mortgagee  may  enjoin  waste  by  the 
mortgagor  in  possession  which  threatens  to  impair  the  sufficiency 
of  his  securitj";^-  and  a  similar  protection  is  extended  to  the  holders 
of  other  forms  of  security.^"  Any  acts  of  waste  by  a  tenant  in 
common  that   are  inconsistent   with  prudent   management   of   the 

^  Lord  Castlemain  v.  Lord  Craven,  22  Vin.  Abr.  52.3.  1  Ames  Eq.  Jur.  400.  1 
Keener  458;  Jesus  College  v.  Bloom,  Amb.  54,  3  Atk.  262,  1  Ames  Eq.  Jur.  481. 
1  Keener  404,  1  .Scott  115;  Watson  v.  Huntei',  5  Johns.  Ch.  169,  !)  Ain.  Dee. 
295,  1   JScott  642. 

*  Lansdo\\nie  v.  Lansdowne,  1  Madd.  116,  1  Keener  40G,  1  Scott  050;  Baker 
V.   Sebriglit,  L.  R.   1.3  Ch.  D.   179,   1  Keener  515. 

^  Rolt  V.  Somerville,  2  Eq.  Cas.  Abr.  759,  1  Ames  Eq.  Jur.  471,  1  Keener,  435,. 
1  tScott  647;  Gent  v.  Harrison,  Johns.  517,  1  Keener  510. 

"Skelton  v.  Skelton,  2  Swanst.  170,  1  Ames  Eq.  Jur.  473,  1  Keener  430. 
1   Scott  656;   Bewick  v.  Whitfield,  3  P.  Wms.  267,   1  Keener  505. 

■Mollineux  v.  Powell,  3  P.  Wms.  268  (n.  F.),  1  Ames  Eq.  Jur.  468,  1  Scott 
(■(64;  Kane  v.  Vanderburgli,  1  Johns.  Ch.  11,  1  Keener  455,  1  Scott  661.  So  may 
trustees  to  preserve  contingent  remainders,  who  are  tenants  per  auter  vie: 
Perrot  v.  Perrot,  3  Atk.  221,  1  Keener  453;  Lansdowne  v.  Lansdowne,  1  ^ladd. 
1 1 6,  1  Keener  406,  1  Scott  650. 

"Anonymous,  Moore  5-54,  pi.  748,  1  Ames  Eq.  Jur.  467;  Robinson  v.  Litton.  3 
Atk.  209,  1  Keener  436.  And  an  underlessee  may  be  enjoined  at  the  suit  of  the 
ground  landlord:     Farrant  v.  Lovel,  3  Atk.  723,  1  Keener  455,  1  Scott  600. 

"Turner  v.  Wright,  2  De  Gex,  F.  &  J.  234,  1  Ames  Eq.  Jur.  470,  1  Keener 
441:    Savile's  Case,  Cas.  temp.  Talb.   16,   1   Ames  Eq.  Jur.  472. 

'"Williams  v.  Day.  2  Cas.  in  Ch.  32,  1  Ames  Eq.  Jur.  47(i.  1  Scott  040. 

"  Turner  v.  Wright,  2  De  Gex,  F.  &  J.  234,  1  Ames  Eq.  Jur.  476,  1  Keener 
441. 

'- Usborne  v.  Usborne,  Dick.  75,  1  Keener  452;  King  v.  Smith,  2  Hare  230. 
243.  1  Ames  Eq.  Jur.  483,  note  (what  is  a  sufficient  security)  ;  Brady  v.  Wal- 
dron,  2  Johns.  Ch.  148,  1   Ames  Kq.  Jur.  483,  1   Scott  661. 

"Thus,  a  vendor  who  retains  litio  may  enjoin  waste  by  the  vendee  in  ])osses- 
sion:     Crockford  v.  Alexander,  15  \"es.  138,  1  Ames  Eq.  Jur.  221,  1  Keener  549. 


§1350  EQUITY    JUKliSFRUDKXCK.  8oO 

estate  or  that  jeopardize  the  interests  of  his  co-tenants  will  be 
enjoined. ^^  I 

§  1349.  Nuisance — Public. — A  court  of  equity  has  jurisdiction 
to  restrain  existing-  or  threatened  public  nuisances  by  injunction, 
at  the  suit  of  the  attorney-general  in  England,  and  at  the  suit 
of  the  state,  or  the  people,  or  municipality,  or  some  proper  otticer 
representing  the  commonwealth,  in  thi.s  country.  A  public  nuisance 
must  be  established  by  clear  evidence,  before  the  preventive  remedy 
will  be  granted.^  A  public  nuisance  will  also  be  restrained  at 
the  suit  of  a  private  person  who  suffers  therefrom  a  special  and 
particular  injury  distinct  from  that  suffered  by  him  in  common 
with  the  public  at  large;  but  this  injury  must  be  real,  and  such 
that  the  legal  remedy  of  damages  would  not  be  adequate.- 

§1350.  Private  Nuisance — When  Restrained. — It  is  a  well-set- 
tled doctrine  that  equity  will  restrain  a  private  nuisance  at  the 
suit  of  the  injured  party.  This  remedy  will  not,  however,  be 
granted  in  every  instance  of  alleged  nuisance.  The  present  or 
threatened  injury  must  be  real,  not  trifling,  transient  or  temporary ;'' 
it  must  be  one  for  which,  on  account  of  its  essentially  irreparable 
nature,  or  its  repetition  or  continuance,  the  legal  remedy  of  damages 
is  inadequate.-    The  title  of  the  plaintiff'  must  also  be  clear,  or  at 

"Hawley  v.  Clowes,  2  Johns.  Ch.  484;   1  Ames  Eq.  Jur.  484,  1  Scott  CC3. 

'  See  Attorney-General  v.  Richards,  2  Anstr.  603,  1  Ames  Eq.  Jur.  615  (obstruc- 
tion to  navigation)  ;  Coosaw  Min.  Co.  v.  South  Carolina,  144  U.  S.  550,  12  Sup. 
Ct.  689,  36  L.  ed.  537,  1  Scott  729  (encroachment  u])on  property  of  the  state)  ; 
Attorney-General  v.  Williams,  174  Mass.  476,  55  N.  E.  77,  1  Ames  Eq.  Jur. 
619  (enforcing  statute  limiting  height  of  buildings  on  certain  streets)  :  State 
V.  Ohio  Oil  Co.,  150  Ind.  21,  47  L.  R.  A.  627,  49  N.  E.  809,  1  Scott  731  (en- 
joining waste  of  natural  gas  to  the  detriment  of  the  public  wealth)  ;  Attorney- 
Oneral  v.  Hunter,  1  Dev.  Eq.  (N.  C. )  12,  1  Ames  Eq.  Jur.  621  (injury  to  public 
health)  ;  Attorney-General  v.  Fitzsimmons,  35  Am.  Law  Reg.  100,  1  Ames  Eq. 
Jur.  622,   1   Scott  724    (prize-fight;   an  interesting  case). 

-Corning  v.  Lowerre,  6  Johns.  Ch.  439,  1  Scott  734  (obstruction  of  street); 
Harness  v.  Bulpitt,  (Cal.  App.)  81  Pac.  1022,  1  Scott  738  (same);  Cranford 
V.  Tyrrell,  128  N.  Y.  341,  28  N.  E.  514,  1  Keener  788  (bawdy-house)  ;  Dempsie 
V.   Darling,  39  Wash.  125,  81  Pac.  152,  1   Scott  735    (same). 

'  The  court  refused  to  enjoin  temporary  or  occasional  nuisances  in  Attorney- 
(Jeneral  v.  Sheffield,  etc.,  Co.,  3  De  Gex  M.  &  G.  304,  1  Keener  682;  Swaine  v. 
(4reat  N.  Ry.  Co.,  4  De  Gex,  J.  &  S.  211,  1  Ames  Eq.  Jur.  569,  1  Scott  743;  Cooke 
V.  Forbes,  L.  R.  5  Eq.  166,  1  Keener  729. 

-  Since  the  avoidance  of  repeated  actions  at  law  for  damages  is  the  ground 
for  exercising  the  jurisdiction  to  restrain  continuing  or  recurring  uuisanct?^.  it 
follows  that  the  injunction  should  be  granted  in  such  cases  though  the  dam- 
ages recovered  in  any  one  of  the  actions  at  law  would  be  small  or  even 
nominal.  It  has  been  frequently  so  held  in  suits  to  enjoin  the  pollution,  diver- 
sion or  obstruction  of  streams.  Clowes  v.  Statl'ordsliire.  etc.,  Co.,  L.  R.  8  Cli. 
125;  Dwight  v.  Hayes,  150  111.  273,  41  Am.  St.  Rep.  367,  37  N.  E.  218;  Mann 
V.  Willey,  51  App.  Div.    (N.  Y.)    109,  64  N.  Y.  Sup.  589,  1  Ames  Eq.  Jur.  572, 


S;U  IXJ UNCTIONS   TO    rUKVK.NT   TORTS.  §  looOcl 

least  not  subject  to  any  substantial  doubt  or  question.  [According 
to  the  modern  decisions,  a  mere  denial  of  the  plaintitf's  title 
in  the  defendant's  pleading  will  not  prevent  an  injunction;  but 
if  the  plaintiff's  title  is  really  disputed,  and  is  in  any  real  doubt, 
it  must  first  be  established  by  a  verdict.^]  The  equitable  jurisdic- 
tion is  therefore  based  upon  the  notion  of  restraining  irreparable 
mischief,  or  of  preventing  vexatious  litigation,  or  a  multiplicity  of 
suits. 

I  §  1350a.  Same — Interlocutory  Injunction — Balance  of  Injury — 
Laches  and  Estoppel. — Since  the  purpose  of  an  interlocutory  or 
temporary  injunction  is  to  preserve  the  property  from  irremediable 
injury  pending  the  suit,  it  may  issue  at  once,  in  a  proper  case, 
though  the  existence  of  the  nuisance  is  disputed.^  On  application 
for  a  temporary  injunction  it  is  appropriate  and  usual  for  the 
court  to  "balance  the  inconvenience  or  injury"  which  will  be 
likely  to  result  to  the  respective  parties  from  the  granting  or  with- 
holding of  the  injunction,  and  act  accordingly;  withholding  it  if  the 
injury  to  the  plaintiff  from  the  continuance  of  the  alleged  nuisance 
during  the  suit  will  be  slight  in  comparison  with  the  injury  to  the 

affirmed  IGS  N.  Y.  664,  61  N.  E.  1131.  A  mandatory  injunction  may  issue 
to  remove  an  obstruction,  and  restore  the  stream  to  its  original  condition: 
Amsterdam  Knitting  Co.  v.  Dean,  162  N.  Y.  278,  56  N.  E.  757,  1  Ames  Eq.  Jur. 
573. 

•Also,  if  the  fact  of  the  existence  of  a  nuisance  is  doubtful,  that  fact  must, 
be  sstablished  at  law:  see  Crowder  v.  Tinkler,  19  Ves.  617,  1  Ames  Eq.  Jur. 
555:     :Melson  v.  Milligan,  151  111.  462,  .38  N.  E.  239. 

"But  the  Tule  is  one  of  expediency  and  policy,  rather  than  an  essential  con- 
dition and  basis  of  the  equitable  jurisdiction,"  ante,  §  252.  It  is,  therefore, 
well  settled,  with  but  little  dissent,  that  if  both  the  plaintifl''s  title  and  the 
existence  of  the  nuisance  are  free  from  doubt,  a  verdict  is  unnecessary:  Busli 
V.  Western,  Free.  Cii.  530  (1720),  1  Ames  Eq.  Jur.  553;  Turner  v.  Mirfield.  34 
lieav.  390,  1  Ames  Eq.  Jur.  558;  Soltau  v.  Do  Held,  2  Sim.  X.  S.  140.  151.  1 
Keener  665,  1  tScott  717;  Dwight  v.  Hayes,  150  111.  273,  41  Am.  St.  Rep.  367, 
37  N.  E.  218;  Gardner  v.  Trustees  of  NeAvburgh,  2  Johns.  Ch.  162,  7  Am.  Dec. 
52(i.  1  Keener  654,  1  Scott  740;  Weakley  v.  Page,  102  Tenn.  178,  53  S.  W.  551, 
46  L.  R.  A.  552.  Contra,  Weller  v.  Smeaton,  1  Brown  Ch.  532  (1784),  1  Ames 
Eq.  Jur.  554. 

In  determining  whether  the  facts  complained  of  constitute  a  nuisance,  equity 
follows  the  law.  "There  is  no  such  thing  as  an  equitable  nuisance,"  in  the  sense  of 
something  actionable  in  equity  but  not  at  law.  Soltau  v.  De  Held,  2  Sim.  N.  S. 
133.  151,  1  Keener  665,  1  Scott  717;  Baines  v.  Baker,  1  Amb.  158,  1  Scott  720. 
As  to  what  constitutes  an  actionable  nuisance,  see,  further,  Lambton  v.  IMellish. 
[1894]  3  Ch.  163,  1  Scott  744;  Rushmer  v.  Polsue,  [1906]  1  Ch.  234.  1  Scoit 
746;  Gilbert  v.  Showerman,  23  Alich.  448,  1  Scott  756.  A  threatened  nuisance 
may  be  enjoined,  but  only  on  a  strong  case  of  probability  that  the  apprehended 
mischief  will,  in  fact,  arise:  Atty.-Gen.  v.  ^Manchester,  [1893]  2  Ch.  87, 
1  Scott  721;   Fletcher  v.  Bealey,  L.  R.  28  ("li.  D.  688,  1  Keener  754. 

'Cronin  v.   r.loemeeke,  58   X.   J.   Kq.   313,  43  All.   605,   1   Ames   Eq.   Jar.   560. 


§  1350a  EQUITY    JURISPRUDENCE.  8S"2 

defendant  from  an  improvident  issuing  of  the  temporary  injunc- 
tion ;-  and  granting  it,  on  the  other  hand,  where  that  will  inflict 
a  loss  or  inconvenience  upon  the  defendant  slight  in  comparison 
with  the  injury  threatened  to  the  plaintiff  while  the  suit  is  still 
in  progress.^  It  has  sometimes  been  thought  that  ihe  court  is 
invested  Avith  the  discretion  to  apply  the  same  process  of  "bal- 
ancing the  inconvenience"  to  its  final  decree,  and  should  refuse 
a  permanent  injunction  to  a  plaintiff  whose  interests  at  stake  are 
greatly  less  than  the  defendant's;*  especially  in  cases  where  the 
defendant's  business  is  such  that  its  interruption  would  cause  great 
inconvenience  to  the  public.^  But  this  notion  has  been  emphatic- 
ally repudiated  by  the  majority  of  the  cases.  Injunction  against 
a  proved,  continuous  nuisance  of  a  serious  character  is  not  a  mat- 
ter of  grace  or  discretion,  but  of  strict  right.  It  proceeds  upon  the 
ground  that  repeated  actions  at  law  to  recover  damages  are  an 
inadequate  remedy,  and  upon  the  further  ground  that  the  acts 
enjoined  amount  to  an  expropriation  for  a  private  use.  or,  at 
best,  for  a  public  use  not  authorized  by  the  legislature.''  That 
the   remedial   right  to  an  injunction   is  not   a  matter  of   grace  or 

-  Eaden  v.  Firth,  1  Hen.  &  M.  573,  1  Ames  Eq.  Jur.  564 ;  Elmhurst  v.  Spencer, 
2  Mac.  &  G.  45,  1  Keener  661 ;  Herbert  v.  Pennsylvania  Co.,  43  N.  J.  Eq.  21, 
10  Atl.  872,  1  Keener  860. 

=  Pollock  V.  Lester.  11  Hare  837,  1  Keener  837. 

^Richards's  Appeal,  57  Pa.  St.  105,  98  Am.  Dec.  202,  1  Ames  Eq.  Jur.  574. 
In  this  case  the  court  refused  to  enjoin  the  use  of  bituminous  coal,  necessary 
to  the  siYccessful  operation  of  defendant's  extensive  iron  works,  but  the  smoke 
from  which  caused  material  injury  to  plaintiff's  adjacent  dwelling-house  and 
cotton  factory.  See,  also,  Mountain  Copper  Co.  v.  U.  S.,  142  Fed.  625.  1  Scott 
750. 

"Daniels  v.   Keokuk    Waterworks,   61    Iowa   549,   16  N.   W.   705,    1   Ames   E(] 
Jur.  5S5    (defendant,  whose  works  furnislied  the  only  reliable  means  of  cxtin 
guishing  fires  in  the  city,  seriously  damaged  by  smoke  the  plaintiff's  adjacei,^ 
dAvelling-house).     Frequent  expressions  to  be  found  in  favor  of  this  nile  in   iiv 
two  branches  are  nearly  all   mere  dicta;    see   1   Pom.  Eq.  Rem.   §   530.  n.    ]l;x 

"  Hennessy  v.  Carmony,  50  X.  J.  Eq.  616,  25  Atl.  374,  1  Ames  Eq.  Jur.  57S,. 
1  Keener  806,  1  Scott  752 ;  Chestatee  Pyrites  Co.  v.  Cavenders,  etc.,  Co..  1 1%. 
Ga.  255,  45  S.  E.  267,  119  Ga.  354,  46  S.  E.  422,  100  Am.  St.  Rep.  174  ("th* 
necessities  of  one  man's  business  cannot  be  the  standard  of  another  man's 
rights")  ;  Clowes  v.  Staffordshire,  etc.,  Co.,  L.  R.  8  Ch.  App.  125,  142,  143. 
Cases  where  the  public  would  be  inconvenienced  by  the  injunction:  Attorney- 
General  V.  Birmingham.  4  K.  &  J.  528,  539  ("so  far  as  this  court  is  concerned, 
it  is  a  matter  of  ahnost  absolute  indifference  whetlier  the  decision  Avill  effect 
a  population  of  250,000  or  a  single  individual  carrying  on  a  manufactory  for 
his  own  benefit"):  Shelfer  v.  London  El.  L.  Co.  (1895)  1  Ch.  287,  1  Ames 
Eq.  Jur.  589  ("courts  of  justice  are  not  like  parliament,  which  considers 
whether  proposed  works  will  be  so  beneficial  to  the  public  as  to  justify  excep- 
tional legislation,  and  the  deprivation  of  people  of  their  rights  with  or  without 
compensation")  :  Stock  v.  Jefferson,  114  Mich.  357,  72  N.  VV.  132,  38  U  H.  A. 
555. 


833  INJUNCTIONS    TO    PUEVEXT    TORTS.  §  1351 

discretion  is  further  illustrated  by  the  rule  that  the  plaintiff's 
mere  delay  or  laches,  unaccompanied  by  circumstances  amounting 
to  an  estoppel,  constitutes  no  defense  to  the  action,  unless  the 
delay  has  continued  so  long-  as  to  defeat  the  legal  right  itself.' 
lie  may,  however,  be  estopped  by  conduct  which  has  encouraged 
the  defendant  to  make  expenditures  in  reliance  upon  his  inaction 
or  a^'quiescenee.^] 

I  §  1350b.  Same — Form  of  Decree — Complete  Relief,  etc. — Where, 
on  the  final  hearing  in  a  case  of  nuisance  .  .  .  the  relief  is  granted 
compelling  the  defendant  to  remove  his  obstructions  or  erections, 
and  to  restore  the  plaintiff  to  his  original  condition,  and  thereby 
to  end  the  wrong,  the  remedy  (usually  called  a  mandatory  injunc- 
tion) is  in  fact  an  ordinary  decree  for  abatement"  and  is  as  much 
a  matter  of  course  as  an  ordinary  prohibitive  injunction.^  If  the 
defendant's  business  is  a  lawful  one,  but  conducted  in  a  way  to 
cause  injury  to  the  plaintiff,  the  decree  should  be  so  framed,  if 
possible,  as  to  prohibit  onh^  that  part  of  the  thing  complained  of 
Avhich  is  injurious,  saving  to  the  defendant  the  right  to  continue 
his  business  if  it  can  be  conducted  in  a  harmless  way.-  As  in  cases 
of  waste,  the  decree  should  include  damages  for  the  past  injury;'^ 
and  if,  after  the  institution  of  a  suit  to  enjoin  a  nuisance  which 
is  properly  the  subject  of  an  injunction  the  defendant  ceases  to 
commit  or  threaten  the  repetition  of  the  nuisance,  the  court  will 
nevertheless  retain  the  bill  for  the  purpose  of  awarding  damages, 
rather  than  put  the  plaintiff  to  the  expense  and  trouble  of  an 
action  at  law.*  A  landlord  may  enjoin  a  nuisance  if  it  is  one 
which  will  permanently  damage  the  reversion.^  A  tenant  may  also 
procure  an  injunction  even  when  his  tenancy  is  very  brief  or  will 
soon  terminate.^] 

§  1351.     Same.     Instances — Violations  of  Easements. — Among  the 

•See  ante,  §  817;  (Jalway  v.  Met.  El.  Ry.  Co.,  128  K  Y.  132,  28  N.  E.  470, 
1.3  L.  R.  A.  788,  1  Ames  Eq.  Jur.  600.  1  Keener  822;  Campbell  v.  Seaman,  03 
^.  Y.  .568,  20  Am.  Rep.  567,  1  Keener  748. 

'See  ante,  §  818;  for  conduct  not  amounting  to  estoppel,  see  Gahvay  v.  Met. 
El.  Ry.  Co.,  supra. 

'Pom.  ¥.(\.  Jur.  §  1359;  Rotheiy  v.  N.  Y.  Rubber  Co.,  90  N.  Y.  30,  1  Ames 
Kq.  .lur.  .567;  Corning  v.  Troy,  etc..  Factory.  40  N.  Y.  191,  1  Keener  814;  Troe 
V.  Larsen,  84  Iowa  649,  .51  N.  W.  179,  35  Am.  St.  Rep.  336.  As  to 
preliminary  mandatory  injunctions,  see  post,  §    1359. 

=  Ling\vood  v.   Stowmarket  Co.,  L.   R.   1   Eq.   77,  336,   1   Keener  717. 

'See  ante,  §  237. 

♦  Meyer  v.  Phillips,  97  N.  Y.  485,  49  Am.  Rep.  538. 

^Slielfer  v.  London  El.  L.  Co.  (1895)  1  Ch.  287,  1  Ames  Eq.  .Jur.  589.  So, 
where  no  threatened  injury  to  the  reversion  is  proved,  he  cannot  have  an  injunc- 
tion:    Jones  V.  Cliappell.  L.  R.  20  Eq.  839,  1  Keener  744. 

'Jones  V.  Chappell,  supra.  •       ■    - 

63 


§  1351  EQUITY    JURISPRUDENCE,  S'S4: 

nuisances,  or  wrongs  in  the  nature  of  nuisances,  which  equity 
readily  prevents  by  injunction  are  those  which  consist  in  the  in- 
terference with,  disturbance,  or  destruction,  actual  or  threatened, 
of  easements  and  servitudes,  whether  created  by  grant  or  by  cov- 
enant, or  resulting  from  user.  Some  of  the  most  common  forms  of 
such  injuries  which  equity  enjoins  are  the  obstruction  of  ancient 
lights  in  England,  and  right  of  air  or  of  prospect,  by  erections 
of  any  kind ;  the  removal  of  the  lateral  support  of  land  bj^  ex- 
cavations; the  interference  with  water  rights  by  diverting  or  pol- 
luting streams.  In  fact,  every  disturbance  of  an  easement  or  serv- 
itude, existing  or  threatened,  will  be  thus  restrained,  whenever  from 
the  essential  nature  of  the  injury,  or  from  its  continuous  character, 
the  legal  remedy  is  inadequate.^  No  sufficient  notion  can  be  ob- 
tained of  the  scope  and  efficiency  of  this  injunctive  jurisdiction, 
except  from  an  actual  examination  of  the  numerous  and  varying 
instances  in  which  it  has  been  exercised  by  the  modern  decisions. 

'The  jurisdiction,  where  equitable  servitudes  have  been  impressed  upon  land 
by  covenants  in  deeds  of  conveyance,  etc.,  has  already  been  examined:  See  ante, 
§  1295. 

Interfering  with  easement  of  light  and  air:  Att'y-Gcn.  v.  Nichol.  10  Ves. 
338,  1  Ames  Eq.  Juv.  534,  1  Keener  651 ;  Ryder  v.  Bentham,  1  Ves.  Sr.  543, 
1  Ames  Eq.  Jur.  545,  1  Keener  835;  Jackson  v.  Duke  of  Newcastle,  3  De  Gex, 
.7.  &  fS.  275,  1  Keener  707 ;  \Yilson  v.  Townend,  1  Drew.  &  Sm.  324,  1  Ames  Eq. 
Jur.  539;  Yates  v.  Jack,  L.  E.  1  Ch.  App.  295,  1  Ames  Eq.  Jur.  541:  Smith  v. 
Smith,  L.  R.  20  Eq.  500,  1  Ames  Eq.  Jur.  543;  Martin  v.  Price,  [1894]  1  Ch. 
276,  1  Ames  Eq.  Jur.  537;  Von  Joel  v.  Hornsey  [1895],  2  Ch.  774,  1  Ames  Eq. 
Jur.  546. 

Interference  n-itli  rights  of  icag:  See  Thorpe  v.  Brumfitt,  L.  R.  8  Ch.  App. 
650,  1  Ames  Eq.  Jur.  547,  1  Keener  734;  Krehl  v.  Burrell,  7  Ch.  Div.  551,  1 
Keener  850;  Cadigan  v.  Brown,  120  INIass.  493,  1  Keener  189;  Tucker  v.  Howard, 
128  Mass.  361,  1  Keener  854,  1  Ames  Eq.  Jur.  548;  Starkie  v.  Richmond,  155 
Mass.  188,  29  N.  E.  770,  1  Keener  871;  Hart  v.  Leonard,  42  N.  J.  Eq.  410,  7 
Atl.  865,   1  Ames  Eq.  Jur.  549,  1  Keener  856. 

liemoval  of  lateral  support  of  land:  Hunt  v.  Peake,  Johns.  705;  6  Jur.„ 
\.  S.,  1071. 

Interfering  with  tcater  rights  Ig  diverting  streams,  polluting  streams,  etc.: 
The  cases  on  this  subject  are  very  numerous.  The  jurisdiction  is  exercised 
alike  against  private  persons  and  against  public  bodies,  municipalities,  boards, 
commissioners,  etc.  Pollution:  see  Strobel  v.  Kerr  Salt  Co.,  164  N.  Y.  303, 
79  Am.  St.  Rep.  643,  58  N.  E.  142,  51  L.  R.  A.  687;  Mann  v.  Wiley,  51  App. 
Div.  169,  64  N.  Y.  Supp.  589,  1  Ames  Eq.  Jur.  572.  Diversion  or  Obstruction: 
see  Gardner  v.  Trustees,  etc.,  Xewburgh,  2  Johns.  Ch.  102,  7  Am.  Dec.  520.  1 
Scott  740,  1  Keener  654,  H.  &  B.  767;  Amsterdam,  etc.,  Co.  v.  Dean,  102  N.  Y. 
278,  56  N.  E.  757,  1  Ames  Eq.  Jur.  573;  Heilbron  v.  Fowler,  etc.,  Co..  75  Cal. 
426,  7  Am.  St.  Rep.  183,  17  Pae.  535.  Percolating  Waters:  see  Katz  v.  Walkin- 
shaw,  141  Cal.  116,  99  Am.  St.  Rep.  35.  and  note,  70  Pac.  663,  74  Pac.  766,  64 
L.  R.  A.  230.  Ohstruction  in  narigohle  waters,  etc.:  See  ante,  §  1349,  and  note; 
Revell  V.  People,  177  111.  408,  69  Am.  St.  Rep.  257,  52  N.  E.  1052,  53  L.  R.  A, 
790. 


835  IXJUXCTIOXS  TO    PRKVEXT  TORTS.  §  1352a 

§  1352.  Patent  Rights  and  Copyrights. — When  the  existence  of 
a  patent  right  or  of  a  copyright  is  cuiieecled,  or  has  been  established 
b}'  an  action  at  law,  tlie  jurisdiction  of  equity  to  restrain  an  in- 
fringement is  too  Avell  settled  and  familiar  to  require  the  citation 
(jf  authorities  in  its  support.  From  the  nature  of  the  right  and 
of  the  wrong, — the  violation  being  a  continuous  act, — the  legal 
remedy  is  necessarily  inadequate.  The  ordinary  form  of  relief 
is  an  accounting  of  profits  and  an  injunction  in  equity;  indeed, 
tlu^  action  at  law  is  seldom  resorted  to,  except  for  the  purpose  of 
establishing  the  validity  of  the  patent  or  copyright  by  the  verdict 
of  a  jury  when  it  is  really  contested.  Under  the  constitution  of  the 
I.^nited  States,  the  cognizance  of  suits  for  the  infringement  of  these 
rights  belongs  exclusively  to  the  federal  courts. 

[§  1352a.  Patent  Rights,  continued. — A  bill  for  a  permanent  in- 
junction (as  distinguished  from  a  motion  for  a  preliminary  in- 
junction) need  not  show  that  the  plaintiff's  right  has  been  estab- 
lished at  law^  or  that  it  has  been  long  acquiesced  in  by  the  public.' 
A  court  of  equity  may,  and  generally  will,  try  the  question  of  the 
validity  of  the  jDatent  Avithout  the  intervention  of  a  jury,^  because 
of  the  intricacy  of  the  question  usually  involved.  The  defendant's 
abandonment  of  the  infringement  before  suit  is  no  defense  unless 
he  pleads  and  proves  that  no  further  infringement  is  intended.^ 
Nor  is  the  plaintiff's  failure  to  use  the  patent  and  his  refusal  to  al- 
low others  to  use  it  on  reasonable  terms,  sufficient  to  warrant  re- 
fusal of  injunctive  relief.-"'  "Unreasonable  delay  and  the  deceitful 
acts  or  silence  of  a  patentee  which  induce  an  infringer  to  incur 

'Hicks  V.  Raineock,  2  Dick  647,  1  Ames  Eq.  Jur.  G2G. 

"WiTt  V.  Hicks,  46  Fed.  Rep.  71,  1  Ames  Eq.  Jur.  626. 

■'Rovill  V.  Hitchcock,  L.  R.  3  Cli.  App.  417;  \Yyckoff  v.  Wagner  Typewriter 
Co.,  88  Fed.  515,  per  Lacombe,  Cir.  J.  "When  one  remembers  the  careful 
study  of  intricate  machinery,  the  manipulation  of  models,  the  reading  and  re- 
reading of  technical  evidence,  the  elaborate  comparison  of  documents  couched 
in  language  which  certainly  is  not  that  of  common  speecli,  the  close,  hard 
thinking,  sometimes  prolonged  for  weeks,  which,  in  the  cases  of  a  complicated 
patent,  has  to  be  gone  through  with,  before  a  judge,  however  long  his  experience 
M'ith  such  causes,  is  able  to  reach  a  conclusion  on  the  issues  of  fact,  which, 
even  if  erroneous,  presents  at  least  the  appearance  of  a  logical  train  of 
reasoning  in  its  support,  it  seems  safe  to  say,  a  priori,  that  the  decision  of  such 
questions  bj'  an  ordinary  jury,  imprisoned  for  a  few  hours,  with  naught  but 
their  vague  recollections  of  the  evidence,  would  be  a   lottery." 

*  Cayuta  \\heel  &  F.  Co.  v.  Kennedy  V.  Mfg.  Co.,  127  Fed.  355,  1  Ames  Eq. 
Jur.  638. 

'-  Campbell  :Mfg.  Co.  v.  Manhattan  Ry.  Co.,  49  Fed.  930,  1  Ames  Eq.  Jur.  G30. 
A  contrary  rule  would  compel  the  patentee  to  sell  his  riglits  to  an  infringer  at 
a  valuation  fixed  by  llie  court.  Rut  see  Smith  v.  Sands.  24  Fed.  470  (whem 
tlie  plaintiff  has  a  fixed  license  fee  for 'the  use  of  the  invention,  his  legal 
rcjjiedy  is  adequate). 


§  lob-ih  EQuriY  <j[i!i.si'i;uDi;xcE.  806 

expenses  or  become  liable  to  losses  and  damages  which  he  "\Vould 
not  otherwise  have  suffered,  may  sometimes  justly  induce  a  court 
of  equity  to  stay  his  suit  for  an  infringement  or  for  an  accounting 
before  the  time  fixed  by  the  analogous  statute  of  limitations.'^  But 
delay,  unaccompanied  by  such  deceitful  acts  or  silence  of  the 
patentee,  and  by  such  facts  and  circumstances  as  practically  amount 
lo  an  equitable  estoppel,  will  warrant  no  such  action."'] 

[§  1352b.  Patent  Rights — Temporary  Injunctions. — The  princi- 
ples upon  which  preliminar}'  injitoctions  issue  are  well  settled. 
The  purpose  of  the  interlocutory  writ  is  not  to  conclude  the  ques- 
tion of  right  but  to  protect  against  material  injury  pending  the 
litigation.  In  patent  cases,  to  warrant  the  writ,  not  only  must  the 
infringement  be  without  reasonable  doubt,  but  the  right  of  the 
patentee  must  be  clear.^  Failing  prior  adjudication  in  favor  of  the 
validity  of  the  patent,  there  must  be  shown  such  continued  public 
ac(iuiescence  in  the  exclusive  right  asserted  as  raises  a  presumption 
of  validity;  a  presumption  not  arising  from  the  letters  patent,  un- 
less accompanied  by  public  acciuiescence.-  Where  the  validity  of 
a  patent  has  been  sustained  by  prior  adjudication,  the  only  ques- 
tit)n  open  on  motion  for  a  preliminary  injunction  is  the  question 
of  infringement,  the  consideration  of  other  defenses  being  post- 
poned until  final  hearing.''  This  rule  is  subject  to  exceptions,  how- 
ever. Where  the  new  evidence  is  of  such  a  character  that  if  it  had 
been  introduced  in  the  former  case  it  probably  would  have  led 
to  a  dift^'erent  conclusion,  the  equity  court  may  go  behind  the 
record  and  consider  all  the  facts.*  Again,  where  the  prior  liti- 
gation was  collusive,  the  judgment  therein  is  not  binding  on 
the  equity  court."'    The  "balance  of  convenience"  principle  is  often 

Mde  V.  Thorlieht,  115  Fed.  137,  53  C.  C.  A.  341,  1  Ames  Eq.  Jur.  642  (no 
Hcquiescence)  ;  Lane  &  Bodley  Co.  v.  Locke,  150  U.  S.  193,  14  Sup.  Ct.  78.  See 
ante,  S  818. 

'Since  the  injunction  is  in  aid  of  a  legal  right;  see  ante,  S  817;  Ide  v.  Tlior- 
licht  supra. 

'  I'reliniinaiy  injunctions,  therefore,  were  refused  in  Plympton  v.  ]\Ialcolms(.n, 
L.  R.  20  Eq.  37,  1  Ames  Eq.  Jur.  (532;  Standard  Elevator  Co.  v.  Crane  El. 
Co..  56  Fed.  718,  6  C.  C.  A.  100,  1  Ames  Eq.  Jur.  663;  Parker  v.  Sears,  1  Fish, 
rat.  Cas.  93,  Fed.  Cas.  No.  10.748. 

=  Standard  El.  Co.  v.  Crane  El.  Co.,  supra;  Stevens  v.  Keating,  2  Ph.  Cli.  3.'1.'>. 
1  Ames  Eq.  Jur.  627  (public  acquiescence).  Or  the  preliminaiy  injunction  may 
he  based  on  an  interference  suit  between  the  same  parties  in  the  patent  office, 
decided  in  plaintifi''s  favor:     Smith  v.  Halkyard,  16  Fed.  414. 

"■  Edison  Electric  L.  Co.  v.  Beacon,  etc.,  Co.,  54  Fed.  678,  1  Ames  Eq.  Jur. 
630:  Dull"  ]\lfg.  Co.  V.  :N'orton,  92  Fe<l.  921;  Cary  v.  Lovell  :\[fg.  Co.,  24  Fed. 
141. 

* 'W  estern  EI.  Co.  v.  Keystone  Tel.  Co.,  115  Fed.  809;  Lockwood  v.  Fabcr,  27 
Fed.  (53. 

'^Bowers  Dredging  Co.  v.  X.  Y.,  etc.,  Co.,  77  Fed.  980:  Wilson  v.  ConsoL  Store 
Service  Co.,  88  Fed.  286,  31  C.  C.  A.  533. 


S'37  IXJLNCTION.s   TO    I'K'KVKXT   TOHTS.  §  1352c 

applied  on  a  motion  for  a  preliminary  injunetiou;  tlie  motion  being 
granted  although  the  plaintiffs  right  is  doubtful,  upon  the  ground 
that  the  granting  of  it  would  injure  the  defendant  less  than  the 
withholding  of  it  would  injure  the  plaintitf ;"  and  conversely,  the 
luotiou  may  be  denied  in  some  instances  where  the  plaintiff's  right 
is  clear,  when  the  injury  to  the  defendant  or  the  public  by  a 
preliminary  injunction  will  far  outweigh  any  advantage  to  thf 
plaintiff  therefrom/  In  the  latter  case  the  defendant  is  usually 
ordered  to  give  a  bond  to  keep  an  account  of  sales.  The  plaintiff's 
light  to  preliminary  relief  may  also  be  prejudiced  by  his  delay 
in   beginning   suit.**] 

I  §  1352c.  Patent  Rights — Complete  Relief. — In  accordance  with 
the  general  principle  that  jurisdiction  acquired  for  one  purpose 
will  be  retained  for  the  purpose  of  awarding  complete  relief,  the 
court,  having  granted  a  permanent  injunction  against  the  infringe- 
ment of  a  patent,  will  retain  the  bill  to  decree  an  account  of  profits, "^ 
i\nd  sometimes  to  award  damages.  ''Profits  are  the  gains  or  savings 
made  by  the  w^rong-doer  by  the  invasion  of  the  complainant's  prop- 
erty-right in  his  patent.  They  are  the  direct  pecuniary  benefits 
received,  and  are  capable  of  direct  measurement."-  Originally, 
damages  could  not  be  awarded  in  the  equity  suit;  but  this  rule 
has  been  changed  by  statute,  in  cases  where  the  injury  sustained 
by  the  infringement  is  plainly  greater  than  the  aggregate  of  what 
was  made  by  the  respondent.^  A  bill  in  equity  for  a  naked  account 
of  profits  and  damages  against  an  infringer  of  a  patent  cannot 
be  sustained.  "Such  relief  is  ordinarily  incident  to  some  other 
equity,  the  right  to  enforce  Avhich  secures  to  the  patentee  his 
standing  in  court."*  AVhere,  however,  during  the  pendency  of  the 
suit  for  injunction  and  accounting  the  right  to  an  injunction  fails 
l)y  reason  of  the  expiration  of  the  patent,  the  suit  is  not  deter- 
mined, but  the  court  will  proceed  to  administer  the  other  relief 
sought.'*     But  where,  in  such  a  case,  the  bill  is  filed  at  so  late 

"Irwin  V.  Dane,  2  Biss.  442,  Fed.  Cas.  No.  7,081. 

■Klake  v.  Greenwood  Cemetery,  14  Blatchf.  342,  Fed.  Cas.  No.  1,497;  Soutli- 
western  Brush,  etc.,  Co.  v.  La.,  etc.,  Co.,  45  Fed.  893. 

•*Bovill  V.  Crate,  L.  R.  1  Eq.  388.  But  see  Stearns-Roger  Co.  v.  Brown,  114 
yod.  939    (C.  C.  A.). 

'  Bragg  V.  City  of  Stockton,  27  Fed.  509. 

-  Head  v.  Porter,  70  Fed.  498,  1   Ames  Eq.  Jur.  G44. 

^  For  the  corresponding  English  statute,  see  American  Braided  Wire  Co.  v. 
Thompson,  44  Ch.  Div.  274.  The  court  has  power  to  grant  the  further  remedy 
of  an  order  that  the  infringing  articles  be  delivorod  \ip  to  be  destroyed :  see 
American  Bell  Tel.  Co.  v.  Kitsell,  35  Fed.  521. 

^"Root  V.  L.  S.  &  IM.  S.  R.  Co.,  105  TJ.  S.  189,  20  L.  ed.  975;  Lewis,  13. 

'Clark  V.  Wooster,  119  V.  S.  322,  7  Sup.  Ct.  217,  30  L.  ed.  392;  Chinnock  v. 
J'ater^^on.  etc.,  Co.,   112   Fed.  531. 


§  1353  EQUITY    JUIU.SPKUDEN'CE.  808 

a  date  that,  iinuer  the  practice  and  rules  of  the  court,  not  even 
a  preliminary  injunction  can  be  obtained,  it  is  held  that  the 
court  may  dismiss  the  suit.*'  If  the  right  to  injunctive  relief  fails 
l)y  reason  of  the  death  of  the  defendant  after  the  filing  of  the 
bill  but  before  the  decree,  the  case  may  be  retained  for  an  account 
of  profits  against  the  executors.'] 

I  §  1352d.  Copyrights. — The  principles  governing  the  issuance  of 
injunctions  against  the  infringement  of  copyrights  are  similar  to 
those  relating  to  patents.^  It  is  not  essential  that  actual  damage 
be  shown.-  The  plaintitf  must  come  into  equity  with  clean  hands ; 
if  his  publication  is  immoral  or  mischievous  in  its  effects,  his 
rights  therein  will  not  be  protected  by  a  court  of  equity.^  As 
in  patent  cases,  he  may  lose  his  right  to  equitable  relief  by  ac- 
quiescence, if  that  has  induced  the  infringer  to  incur  expense,  and 
amounts  to  an  estoppel,*  The  right  to  a  permanent  injunction 
carries  with  it  the  right  to  an  account  of  the  defendant's  profits.'' 
To  entitle  the  plaintitt'  to  a  preliminary  injunction,  his  right  and 
the  defendant's  infringement  must,  as  a  general  rule,  be  free 
from  serious  dou})t ;  but  the  court  may.  as  in  patent  cases,  con- 
sider the  harm  that  would  be  done  to  the  complainant  by  refusing 
a  preliminary  injunction,  in  comparison  with  the  damage  that 
might  be  sustained  by  the  defendant  in  consequence  of  granting 
the  same.*'] 

§  1353.  Literary  Property  as  Distinct  from  Copyright. — In  anal 
ogy  to  the  protection  of  copyrights,  a  jurisdiction  has  become  w(^ll 
established  by  modern  decisions  to  restrain  the  invasion  or  piracy 
of  literary  property  in  the  product  of  intellectual  labor,  Avhich  still 
remains  in  the  form  of  manuscript,  or  which,  if  printed,  has  not 
been  published,   and  over  which,  as  a   consequence,  no  statutory 

"  Bragg  ]\lfg.  Co.  v.  City  of  Hartford,  56  Fed.  292. 

■Head  v.  Porter,  70  Fed.  498,  1  Ames  Eq.  Jiir.  (U4. 

^  Among  the  many  interesting  eases  defining  what  constitutes  an  infringement 
or  piracy,  see  Daly  v.  Palmer,  6  Blatchf.  256,  Fed.  Cas.  No.  3,552  (dranialic 
composition)  ;  Kelly  v.  Morris,  L.  R.  1  Eq.  697  (city  directory)  :  Edward 
Thompson  Ca  v.  American  Law  Book  Co.,  122  Fed.  923,  59  C.  C.  A.  148  (what 
is  fair  use  of  an  existing  compilation). 

-Reed  v.  Holliday,  19  Fed.  325. 

"  Martinetti  v.  IVIaguire,  1  Deady  21(5.  (immoral  play);  Egbert  v.  Green- 
berg,  100  Fed.  447  ("official  form  chart  of  races"  not  necessarily  an  immoral 
publication) . 

*  Hogg  V.  Scott,  L.  R.   18  Eq.  444.  1  Ames  Eq.  Jur.  655. 

^Baily  v.  Taylor.  1  Russ.  &  M.  73,  1  Ames  Eq.  .Tur.  654. 

^Preliminary  injunctions  were  granted  in  Bell  v.  Walker,  1  Bro.  C.  C.  451.  1 
Ames  Eq.  .lur.  650;  Little  v.  Gould.  2  Blatchf.  165.  Fed.  Cas.  Xo.  8.394:  refused. 
in  ]\lcNeilI  v.  Williams.  11  ,lur.  345.  1  Ames  Eq.  Jur.  652;  West  Publishing 
Co.  V.  Lawyers'  Co-op.  Pub.  Co.,  53  Fed.  265. 


839  IXJUXCTIOXS    TO    PItKVEXT   TORTS.  §1354 

copyright  has  been  obtained;  and  to  restrain  an  invasion  of  the 
.similar  right  -which  an  artist  has  in  his  pictures,  and  other  original 
works  of  his  creative  art.  This  jurisdiction  belongs  to  the  state 
courts.  It  will  be  exercised  to  restrain  the  unauthorized  publica- 
tion of  unpublished  manuscript  or  printed  matter  in  violation  of 
the  rights  of  the  person  entitled  thereto;^  the  unauthorized  publi- 
cation, performance,  representation  on  the  stage,  or  other  similar 
uses  of  dramatic  compositions  which  have  not  been  "published" 
by  the  author  or  proprietor;-  the  unauthorized  publication,  deliv- 
ery, or  other  like  use  of  lectures  which  have  been  delivered  by  the 
author,  but  not  otherwise  published;"  the  unauthorized  making, 
sale,  or  exhibition  of  copies  of  paintings,  engravings,  and  other 
works  of  art.  even  though  the  originals  may  have  been  publicly 
exhibited  ;*  and  the  unauthorized  publication  of  private  letters, 
whether  on  literary  topics,  or  on  matters  of  private  business,  friend- 
ship, or  family. -"^ 

§  1354.  Trade-marks. — Somewhat  akin  to  the  protection  of  pat- 
ent and  copy  rights  is  that  which  courts  of  equity  give,  by  means 
of  the  injunction,  to  the  peculiar  species  of  right  arising  from  the 
adoption  and  use  of  "trade-marks."  Although  some  judicial  opin- 
ions and, some  recent  statutes  speak  of  "property"  in  trade-marks, 
or  call  the  right  to  their  exclusive  use  a  kind  of  property,  yet 
in  strictness  the  remedy  does  not  depend  upon  any  true  properii/ 
acquired  in  these  symbols  and  names,  but  upon  the  broad  princi- 
ple that  a  court  of  equity  will  not  permit  fraud  to  be  practiced 
upon  the  public  nor  upon  private  individuals.^     It  is  well  settled 

1  Palmer  v.  De  Witt,  47  X.  Y.  532,  7  Am.  Rep.  480,  Lewis  64  (unauthor- 
ized printing  of  an  unpuGli^hed  play). 

■-'Palmer  v.  De  Witt,  supra;  Thomas  v.  Lennon,  14  Fed.  849  (performance  of 
unpublished  music)  ;  Tompkins  v.  Halleek  133  Mass.  32,  43  Am.  Rep.  480,  Lewis 

r.o. 

'Abernethy  v.  Hutchinson,  1  Hall  &  T.  28,  40;  3  L.  J.  Ch.  209;  Nichols  v. 
JMtman,  26  Ch.  D.  374. 

*  Prince  Albert  v.  Strange,  1  Macn.  &  G.  2,5;  1  Hall  &  T.  1 ;  2  De  Gex  &  S.  fir)2 : 
and  see  Pollard  v.  Photographic  Co.,  L.  R.  40  Ch.  D.  345,  1  Keener  76  (plain- 
tiff was  pliotographed  by  defendant,  who  afterwards  made  for  his  own  use. 
exhibited  and  sold  liknesses  taken  from  the  negative.  This  was  enjoined,  chielly 
on  the  ground  that  "the  bargain  betw'een  the  customer  and  photographer  includes, 
by  implication,  an  agreement  that  the  prints  taken  from  the  negative  are  to 
be  appropriated  to  the  use  of  the  customer  only"). 

^The  restraint  may  be  at  the  suit  of  the  writer  against  the  person  written 
to,  or  his  assigns,  or  a  stranger,  or  at  the  suit  of  the  person  written  to.  or 
his  personal  representatives  against  a  stranger:  Gee  v.  Pritchard.  2  Swanst. 
402,  1  Scott  149.  1  Keener  59.  Lewis  44:  Pice  v.  Williams.  32  Fed.  437  (con- 
tract of  reei|)ient  to  sell  letters  is  void). 

'The  ground   of  the   remedy  was   stated    in    Farina   v.    Silvcrlock.   6   Do   G.k 


§  loala  EQUITY    JUKLsriilDENCE.  840' 

by  modern  decisions,  that  Avhen  a  trade-mark  has  been  duly  ac- 
quired by  a  manufacturer  or  dealer,  an  injunction  will  be  granted 
at  his  suit  to  restrain  other  persons  from  using  it  upon  their  goods, 
or  from  using  such  imitations  of  it  as  will  tend  to  mislead  and  de- 
ceive the  public. - 

[§  1354a.  Exclusive  Franchises. — An  injunction  is  the  appropri- 
ate remedy  to  protect  a  party  in  the  enjoyment  of  an  exclusive 
franchise  against  continuous  encroachments,    "Such  continuous  en- 

M.  &  G.  214,  217:  "This  right  cannot  properly  be  described  as  a  copyright; 
it  is,  in  fact,  a  right  which  can  be  said  to  exist  only,  and  can  be  tested  only, 
by  its  violation;  it  is  the  right  which  any  person  designating  his  wares  or 
(onmiodities  by  a  particuhxr  trademark,  as  it  is  called,  has  to  prevent  others 
tioiii  selling  wares  which  are  not  his,  marked  with  that  trade-mark,  in  order 
to  mislead  the  pnblic,  and  so  incidentally  to  injure  the  person  who  is  owner  of 
the  trade-mark." 

-  8ee  National  Biscuit  Co.  v.  Baker,  95  Fed.  135;  Vacuum  Oil  Co.  v.  Climax 
Relining  Co.,  120  Fed.  254  (word  descriptive  of  quality  not  a  valid  trade-mark)  ; 
Ford  V.  Fostei",  L.  R.  7  Ch.  App.  611,  Lewis  144  (what  does  not  amount  to  an 
acquiescence  in  the  use  of  the  trademark  by  other  persons  or  abandonment  of 
it  to  the  public).  The  protection  of  equity  is  not  confined  to  technical  trade- 
marks. Thus,  where  one  adopts  a  trade  name  so  similar  to  that  of  another 
Ihat  confusion  is  sure  to  result  and  the  public  will  thereby  be  deceived,  an 
injunction  will  often  issue  at  the  suit  of  the  party  who  first  adopted  tiie 
name:  see  Chas.  S.  Higgins  Co.  v.  Higgins  Soap  Co.,  144  N.  Y.  462,  43  Am.  St. 
Rep.  769,  39  N.  E.  490,  27  L.  R.  A.  42  (a  person  may  lose  the  right  to  use  his 
own  name  in  business  by  the  assignment  of  it  with  the  good  will  of  the  l)usi- 
iiess)  ;  Hoxie  v.  Chaney,  143  Mass.  592,  58  Am.  Rep.  149,  10  K  E.  713;  Royal 
:?aking  Powder  Co.  v.  Royal,  122  Fed.  337,  58  C.  C.  A.  499  (a  person  may  be 
restrained  from  intentionally  using  his  own  name  in  such  a  way  as  to  deceive 
the  public,  and  required  to  use  every  means  reasonablj'  possible  to  distinguish  his- 
goods  from  those  of  his  competitor  who  was  in  the  business  before  him)  ;  Singer 
Mfg.  Co.  v.  June  Mfg.  Co.  163  U.  S.  169  (a  person's  name  may.  by  his  tacit 
consent,  become  the  generic  and  descriptive  name  of  the  article  manufactured 
by  him  and  thus  become  dedicated  to  the  public  use  when  the  patent  on  the 
article  expires;  but  another  manufacturer,  then  appropriating  the  name  as 
descriptive  of  his  article  must  not  so  use  it  as  to  deceive  the  public)  :  AVein- 
st.ick.  Lubin  &  Co.  v.  Marks,  109  Cal.  529.  50  Am.  St.  Rep.  57,  42  Pac.  142.  30 
L.  R.  A.  182,  H.  &  B.  783  (j)laintitl'  owned  "Mechanics'  Store":  defendant 
established  "Mechanical  Store"  adjoining,  imitating  plaintiff's  architecture,  etc.. 
so  as  to  deceive  the  public).  And  in  general,  imitation  of  the  color,  form  or 
style  of  the  packages,  labels,  etc.,  used  by  the  plaintiff,  in  such  a  Avay  as  to 
<leceive  the  public  and  injure  the  plaintiff's  business,  will  be  enjoined:  Benison 
Mfg.  Co.  V.  Thomas  Mfg.  Co.,  94  Fed.  651,  Lewis  171;  but  a  mere  deception 
practiced  upon  the  pidilic,  if  there  is  no  attempt  to  pass  off  the  goods  as  those 
of  the  plaintiff,  is,  it  seems,  not  a  wrong  of  which  the  plaintiff  can  complain: 
American  Washboard  Co.  v.  Saginaw  i\Ifg.  Vo.,  103  Fed.  281  (C.  C.  A.)  fn  all 
eases  of  trade-marks  or  of  imfair  competition  it  is  essential  to  the  plaintiff's 
riglit  to  equitable  relief  tiiat  he  should  not  in  the  trade-mark,  name,  or  adver- 
tisement be  guilty  of  material  false  statements  in  connection  Avith  the  article: 
Ridding  v.  How.  8  Sim.  497,  Lewis  125;  Clinton  E.  Worden  &  Co.  v.  California 
Fig  Syrup  Co.,  187  V.  S..  516,  23  Sup.  Ct.  Uil,  47  L.  ed.  282;  see  ante,  §  934. 


841  IXJU.\CT10X8    TO    PKKVKXT   TORTS.  i<  135G 

cF'OaclimciUs  constitute  a  pi'ivate  iiiiisaiice  wiiicli  courts  of  e(|uity 
will  abate  by  injunction.  The  jurisdiction  rests  on  the  firm  and 
.satisfactory  ground  of  its  necessity  to  avoid  a  ruinous  niultiplicit;.' 
of  suits,  and  to  give  adequate  protection  to  the  plaintiff's  prop- 
erly in  his  franchise."^  To  be  entitled  to  relief,  a  plaintiff  need 
.show  only  that  he  i»  entitled  to  a  franchise  and  that  there  is  con- 
tin  ui)us  interference  therewith  by  the  defendant.-  It  is  not  neces- 
sary that  the  plaintiff  first  establish  his  right  at  law.''  I, 

§  1355.  Good-will. — Another  intangible  kind  of  property  which 
will  be  protected  from  invasion  by  injunction  is  ''good-will."  The 
pecuHar  righ.t,  or  rather  expectanc3^  called  "good-will,"  assumes 
that  a  certain  business  has  been  established  and  carried  on  at  some 
.specific  place.  It  consists  in  the  probability,  based  upon  the  ha])its 
of  men.  that  the  persons  who  have  been  accustomed  to  deal  with 
that  business  at  that  specific  place,  as  well  as  others,  will  con- 
tinue to  come  to  such  place  and  deal  in  the  future.  When  such  a 
business  is  transferred,  the  good-will  maj^  be  assigned  with  it.' 
If  a  good-Avill  is  thus  assigned  with  a  business,  interference  witli 
if  by  the  assignor  will  generally  be  restrained  by  in  junction. - 

§1356.  Trespasses. — At  an  early  day  the  court  of  chancery  re- 
fused to  interfere  and  restrain  any  trespasses.  Lord  Thurlow  broke 
through  this  rule,  and  began  to  use  the  preventive  relief  against 
such  wrongs.     He  was  followed  by  Lord  Eldon  ;^  and  the  jui'isdii- 

M\alker  v.  Anustrong,  2  Kan.  198;  Boston  &  Lowell  R.  Corp.  v.  Ralcin  A.- 
Lowell R.  Co.,  2  Gray,   1,  27. 

-Tlu^  exclusive  franchises  whicli  are  protected  by  injunction  ai'e  many.  In 
the  following  cases  relief  Avas  granted:  For  the  protection  of  a  ferry  francln'sc — 
Walker  v.  Armstrong,  2  Kan.  108.  For  the  protection  of  a  toll  bridge. — Tlic 
Bingliamton  ]>ridge,  ?>  WnW.  ."il.  Is  L.  ed.  137.  For  the  protection  of  a  tiirupil.r. 
— Croton  'lurnpike  Co.  v.  Ryder,  1  Johns.  Ch.  (ill;  Ames  Eq.  Jur.  664,  1  Scdil 
168.  For  the  protection  of  an  e.rclusirc  ririlroad  franchise. — Boston  &  Lnwdl 
R.  Corp.  V.  Salem  &  LoAvell  R.  Co..  2  Cray.  1. 

■^  I'or  early  English  cases  contra,  see  Whitecliurcli  v.  Hide.  2  Atk.  oOl  ;  .\nu-;. 
Cas.  in  Eq.  .lur.  661;  Anonymous.  2  Ves.  414,  Ames  663.  1  Scott,  133. 

'  Tmlependently  of  statute,  a  good-will  by  itself  without  the  hiisines-;  on 
■\vliicli   it   depends,  cannot  be  assigned. 

-  Wlien  a  }K'rson  who  had  carried  on  a  business  at  a  certain  locality  trans- 
fers the  business  with  its  good-will,  if  he  sliould  set  up  the  same  business 
again  so  near  the  locality  as  to  draw  off  tlie  customers  from  the  old  place, 
this  would  be  an  infringement  of  the  good-wiU.  Tlie  legal  remedy  would  be 
inadequate,  for  it  would  always  be  very  difficult,  if  not  impossible,  to  osli 
male  the  pecuniary  damages  upon  any  cei-tain  basis.  The  gist  of  the  injury  is 
undoid)tedly  the  breach  of  an  implied  contract  arising  from  the  transfer; 
and  often  Ihere  is  an  express  stipulation:  See  ante,  under  §  1344,  cases  con- 
cerning contracts  in  restraint  of  trade. 

'The  development  and  growth  of  the  jurisdiction  in  England  is  illustrated  by 
tiie  following  cases:  Coulson  v.  White  (1743).  :!  Atk.  21.  1  Scott  670;  Mogg 
V.  Mogg    (1786),  Dick.   670,   1    Scott    670.   1    Ames    K(|.   ,Inr.    1S6,   1    Keener  532; 


§  1357  EQUITY    JURISPRUDENCE.  84>^ 

tion  is  now  firmly  established  in  its  principles,  although  there  is 
no  little  disagreement  among  the  courts — and  especially  the  Amer- 
ican  courts — in   applying   these    principles. 

§  1357.  General  Doctrine — Cases  in  Which  Trespass  may  be  En- 
joined.— If  the  trespass  to  property  is  a  single  act,  and  is  temporary 
in  its  nature  and  effects,  so  that  the  legal  remedy  of  an  action  at 
law  for  damages  is  adequate,  equity  will  not  interfere.^  The  prin- 
cipJe  determining  the  jurisdiction  embraces  two  classes  of  cases, 
and  may  be  correctly  formulated  as  follows:  If  the  ti'espass,  al- 
though a  single  act,  is  or  would  be  destructive,  if  the  injury  is  or 
would  be  irreparable, — that  is,  if  the  injury  done  or  threatened 
is  of  such  a  nature  that,  when  accomplished,  the  property  cannot 
be  restored  to  its  original  condition,  or  cannot  be  replaced,  by 
means  of  compensation  in  money, — -then  the  wrong  will  be  prevented 
or  stopped  by  injunction.  2.  If  the  trespass  is  continuous  in  its 
nature,  if  repeated  acts  of  wrong  are  done  or  threatened,  although 
each  of  these  acts,  taken  by  itself,  may  not  be  destructive,  and  the 
legal  remedy  may  therefore  be  adequate  for  each  single  act  if  it 
stood  alone,  then  also  the  entire  wrong  will  be  prevented  or  stopped 
by  injunction,  on  the  ground  of  avoiding  a  repetition  of  similar  ac- 
tions. In  both  cases  the  ultimate  criterion  is  the  inadequacy  of 
the  legal  remedy.  All  these  cases,  English  and  American,  have 
professed  to  adopt  the  inadequacy  of  legal  remedies  as  the  test 
and  limit  of  the  injunctive  jurisdiction ;  but  in  applying  this  crite- 
rion, the  modern  decisions,  with  some  exceptions  among  the  Ameri- 
can authorities,  have  certainly  held  the  injury  to  be  irreparable  and 
the  legal  remedy  inadequate  in  many  instances  and  under  many 
circumstances  where  Chancellor  Kent  would  prol)ably  have  refused 

Hamilton  v.  Worsefokl  (1786),  10  Ves.  291,  note,  1  Scott  680;  Mortimer  v. 
Uottrell  (1789),  2  Cox  205,  1  Scott  681;  Pillsworth  v.  Hopton  (1801),  6  Ves. 
")!,  1  Scott  081,  1  Ames  Eq.  Jur.  488,  1  Keener  543;  Mitchell  v.  Dors  (1801), 
(i  Ves.  147,  1  Scott  682,  1  Ames  Eq.  Jur.  488,  1  Keener  54.3;  Hanson  v.  Gardiner 
(1802),  7  Ves.  .305,  1  Keener  544;  Smith  v.  Collyer  (1803),  8  Ves.  89,  1  Scott 
683,  1  Ames  Eq.  Jur.  489,  1  Keener,  547;  Courthope  v.  Mapplesden  (1804),  10 
Ves.  290,  1  Scott  684,  1  Ames  Eq.  Jur.  490.  1  Keener  548;  Crockford  v. 
Alexander  (1808),  15  Ves.  138,  1  Scott  685.  1  Ames  Eq.  Jur.  221;  Kinder  v. 
Jones  (1810),  17  Ves.  110,  1  Ames  Eq.  Jur.  490,  1  Keener  550;  Thomas 
V.  Oakley  (1811),  18  Ves.  184,  1  Scott  685,  1  Ames  Eq.  Jur.  401,  1 
Keener,  551;  Deere  v.  Guest  (1836),  1  Mylne  &  C.  51B,  1  Ames  Eq.  Jur.  492, 
1  Keener  564;  Haigh  v.  Jaggar  (1845),  2  Coll.  231,  1  Ames  Eq.  Jur.  494.  1 
Keener  569;  Davenport  v.  Davenport  (1849),  7  Hare  217,  1  Ames  Eq.  Jur.  496, 
1  Keener  574;  Neale  v.  Cripps  (1858),  4  Kay  &  J.  472,  1  Ames  Eq.  Jur.  498, 
1  Keener  602;  Lowndes  v.  Bettle  (1864)  33  L.  J.  Ch.  451,  10  Jur.  X.  S.  220, 
3  New.  R.  409,  1  Scott  647.  1  Ames  Eq.  Jur.  499.  1  Keener  604;  Goodson  v. 
Richardson   (1874),  L.  R.  9  Ch.  221,  1  Ames  Eq.  Jur.  502,  1  Keener  615. 

'  See  Gates  v.  Johnstown  LumJier  (>v  1-2  I^;ass.  49^5,  53  :i^  J5.  736,  1  Ames 
Eq.  Jur  520. 


843  INJLNCTIOXS    TO    PUKVEXT    TOUTS.  §1357 

to  interfere.  It  is  certain  that  many  trespasses  are  now  enjoined 
■\vhieli,  if  committed,  would  fall  far  short  of  destroying  the  property, 
or  of  rendering  its  restoration  to  its  original  condition  impossible. 
The  injunction  is  granted,  not  merely  because  the  injury  i.s  rssm- 
iiallij  destructive,  but  because,  being  continuous  or  repeated,  the 
full  compensation  for  the  entire  wrong  cannot  be  obtained  in  one  ac- 
tion at  law  for  damages.-     While  the  same  formula  is  employed 

^  Tlie  legal  remedy  is  not  atlequate  sini])ly  because  a  recovery  of  pecuniary 
damages  is  possible.  It  is  only  adequate  when  the  injured  party  can,  hy  one 
action  at  lair,  recover  damages  which  constitute  a  complete  and  certain  relict" 
for  the  whole  wrong, — a  relief  virtually  as  efficient  as  that  given  by  a  court  of 
equity.  This  conclusion  is  sustained  by  the  consensus  of  modern  decisions  of 
tlie  highest  authority;  although  it  cannot  be  claimed  that  the  cases  are  unani- 
mous in  its  acceptance.  Tlie  principle,  so  far  as  it  applies  to  the  first  class  of 
tres])asses — those  esseiitiaUy  destructive — was  stated  by  Chancellor  Kent  in  two 
leading  cases,  whicli  may  be  regarded  as  the  counterparts  of  each  otlicr: 
Livingston  v.  Livingston,  6  Johns.  Ch.  497,  499;  10  Am.  Dee.  353,  1  Scott  6S9, 
1  Keener  .500;  and  .Jerome  v.  Ross,  7  Johns.  Ch.  315,  333;  11  Am.  Dec.  484, 
1  Scott  692.  In  Livingston  v.  Livingston,  he  granted  an  injunction.  In  Jerome 
v.  Ross,  supra,  he  refused  to  enjoin  canal  commissioners,  acting  under  color  of 
a  state  statute,  from  quarrying  a  ledge  of  rocks  on  complainant's  land,  it  )i()t 
appearing  that  the  stone  had  any  market  value,  or  that  its  removal  would 
injure  the  freehold.  He  cited  Stevens  v.  Beekman,  1  .John.  Ch.  318,  1  Scott  088, 
1  Keener  553.  Whatever  may  be  thought  of  the  actual  decision  in  .Jerome  v. 
Ross,  it  cannot  be  denied  that  the  tendency  of  Chancellor  Kent's  opinion  in 
narrowing  the  jurisdiction  to  the  comparatively  few  trespasses  of  an  extra- 
ordinary and  specially  aggravated  nature  is  opposed  to  the  modem  decisions  of 
the  highest  ability  and  authority. 

For  definitions  of  "irreparable"  injury,  substantially  in  accord  with  the 
text,  see  Wilson  v.  :\Iineral  Point,  39  Wis.  160,  H.  &  B.  760,  Sliep.  318;  (laus.; 
V.  Perkins,  3  Jones  Eq.  (56  N.  C.)  177,  69  Am.  Dec.  728,  730.  An  injury 
wliich  destroys  the  substance  of  the  estate  is  iisually  treated  as  per  se  "irrep- 
arable," without  regard  to  the  amount  of  damage;  Richards  v.  Dower,  04  Cal. 
02,  2S  Pac.  113,  1  Ames  Eq.  Jur.  517  (running  a  tunnel  under  the  land)  ; 
^^■alker  v.  Emerson,  89  Cal.  456,  26  Pac.  068,  1  Keener  644  (digging  a  ditch 
on  the  land)  ;  for  cases  holding  contra,  with  Jerome  v.  Ross,  see  1  Pom.  Eq. 
Rem.  §  495,  note  9.  Thus,  extracting  ores  from  a  mine  is  an  irreparable  injury; 
Krhardt  v.  Boaro.  113  U.  S.  537,  5  Sup.  Ct.  565,  28  L.  ed.  1-116,  1  Ames  Eq.  Jur. 
507.  1  Scott  704,  1  Keener,  634;  or  the  cutting  of  timber:  Lowndes  v.  Bettle,  3 
-New  R.  409,  33  L.  .}.  Ch.  451,  10  Jur.  N.  S.  226,  1  Ames  Eq.  Jur.  499,  1  Scott 
697,  1  Keener  604:  Stanford  v.  Hurlestone.  L.  R.  9  Ch.  App.  116,  1  Keener  013: 
King  V.  Stuart,  84  Fed.  540,  1  Scott  712;  Griffith  v.  Tlilliard.  64  Vt.  643,  25 
Atl.  427,  1  Keener  636,  H.  &  B.  762,  Shcp.  316;  Musch  v.  Burkhart,  83  Iowa 
301,  32  Am.  St.  Rep.  303,  48  X.  W.  1025,  12  L.  R.  A.  484;  contra,  in  a  few 
states,  Gause  v.  Perkins,  3  Jones  Eq.  (56  N.  C.)  177,  69  Am.  Dec.  728;  'l 
Pom.  Eq.  Rem.  8  495,  note  12.  Further  examples:  Eehelkamp  v.  Schrader, 
45  Mo.  505.  1  Ames  Eq.  Jur.  511  (removal  of  building)  ;  Strawberry  Valley 
Cattle  Co.  v.  Chipman,  13  Utah  4.54,  45  Pac.  348,  1  Scott  712  (grazing  sheep 
on  plaintifi's  land)  :  Beatiy  v.  Kurtz,  2  Pet.  566.  7  L.  ed.  521  (interference  wilh 
graves).  Examples  of  continuing  or  repeated  trespasses,  without  "irreparal>le" 
injury,  enjoined:     Goodson  v.  Ricluirdson,  L.  R.  9  Ch.  221,  1  Ames  Eq.  Jur.  502, 


§  i:3oT  EQUITY    JLTUbPUUDEXCK.  8  M 

by  the  courts  of  equity  in  defining-  their  .jurisdiction,  the  jurisdic- 
tion itself  has  practically  been  enlarged;  judges  have  been  brought 
to  see  and  to  axiknowledge — contrary  to  the  opinion  held  by  Chan- 
cellor Kent —  that  the  common-law  theory  of  not  interfering  with 
}>crsons  until  they  shall  have  actually  committed  a  wrong  is  funda- 
mentally erroneous,  and  that  a  remedy  Avhich  prevents  a  threatened 

1  Keener  615  (laying  pipes  through  the  land)  ;  ilusselman  v.  ^larquis,  1  Bush 
(Ky.)  463,  89  Am.  Dec.  637,  1  Keener  193  (repeatedly  throwing  dowTi  and 
removing  fences)  ;  Warren  Mills  v.  New  Orleans  8eed  Co.,  65  Miss.  391,  7  Am. 
St.  Rep.  671,  4  South.  298  (repeated  trespasses  to  personal  property).  The 
insolvency  of  the  defendant,  and  his  consequent  inability  to  respond  in  damages, 
is  often  a  material  part  of  the  reason  for  granting  an  injunction:  Hodgson  \. 
Duce,  2  Jur.  N.  S.  1014,  1  Ames  Eq.  Jur.  523,  and  note,  1  Pom.  Eq.  Rem.  §  497. 
As  to  injunction  in  eminent  domain  cases,  see  ante,  §  1345,  note. 

Mandatory  injunctions,  onlering  the  removal  of  buihlings  or  obstructions 
wiUully  placed  upon  the  plaintiff's  land,  are  freely  granted;  London,  etc.,  Ry. 
Co.  V.  Lancashire,  etc.,  Ry.  Co.,  L.  R.  4  Eq.  174,  1  Ames  Eq.  Jur.  525;  Wheel- 
ock  V.  Noonan.  108  X.  Y.  179,  2  Am.  St.  Rep.  405,  15  N.  E.  67.  1  Ames  Y.(\. 
.Inr.  527,  1  Scott  94,  1  Keener  194,  H.  &  ?>.  764  (injiuiction  not  refused  on 
the  ground  that  the  plaintiff  might  himself  remove  the  obstruction)  ;  Baron 
V.  Korn,  127  N.  Y.  224,  27  N.  E.  804,  1  Keener  640;  but  in  a  few  instances 
such  injunction  has  been  refused  "where,  by  an  innocent  mistake,  erections 
have  been  placed  a  little  upon  the  plaintiff's  land,  and  the  damage  caused  to 
the  defendant  by  a  removal  of  them  would  be  greatly  disproportionate  to  the 
injury  of  which  the  plaintiff'  complains";  Lynch  v.  I^nion  Instit..  159  ]\lass. 
30fi.  34  N.  E.  364,  20  L.  R.  A.  842,  1  Keener  647;  Hunter  v.  Carroll,  64  X.  H. 
572.  15  Atl.  17.  1  Ames  Eq.  .lur.  529;  see  1  Pom.  Eq.  Rem.  S§  507,  508. 

Title  in  dispute. — If  tlie  plaintiff's  title  is  contested  by  the  defendant,  it  is 
evident  that  a  iKrmancnt  injunction  should  not  be  granted  until  the  title  i^ 
established  in  the  plaintiff's  favor:  Echelkamp  v.  Schrader,  45  Mo.  505.  1 
Ames  Eq.  -lur.  511.  The  court  of  equity  may  at  its  discretion  (by  the  weight 
of  authority)  determine  the  title  itself;  but  the  more  usual  course,  from 
reasons  of  policy  rather  than  of  jurisdiction,  is  to  send  the  question  of  title 
to  be  tried  at  law:  see  ante,  §  252;  1  Pom.  Eq.  Rem.  §  506;  Griffith  v.  Hil- 
liard.  64  Vt.  643.  25  Atl.  427.  H.  &  B.  762,  Shep.  316,  1  Keener  636.  Pending 
tlie  determination  of  the  title,  a  temporary  injunction  may  be  granted  tn  the 
phiintitt'  if  the  injury  is  "irreparable"  in  its  nature;  Erhardt  v.  Boaro,  supra: 
Shubrick  v.  Guerard,'2  Desaus.  (S.  C.)  616,  1  Scott  687;  Duvall  v.  Waters,  1 
r.hind  Ch.  (Md.)  569,  18  Am.  Dec.  350.  361:  Snyder  v.  Hopkins,  31  Kan.  557. 
3  Pac.  367.  1  Ames  Eq.  Jur.  509;  but  not,  it  would  seem,  where  the  sole  groiiiKl 
on  which  the  equitable  jurisdiction  is  invoked  is  that  the  tresspass  is  continuing 
or  repeated:  Xew  York,  etc..  Establishment  v.  Fitch.  1  Paige.  97,  1  Keener 
502.  The  granting  or  wifhholding  of  a  temporary  injunction  is  affected  by 
nuich  the  same  considerations  as  to  "balance  of  injury,"  laches,  etc..  as  in 
cases  of  nuisance:  see  ante,  §  1350a.  By  some  decisions  a  stronger  case  of 
injury  is  required  to  warrant  a  temporary  injunction  where  the  defendant, 
claiming  title,  is  in  possession:  LoA\mdes  v.  Bettle.  supra;  see  1  Pom.  Eq. 
Rem.  §  503,  and  note  57.  A  defendant  in  possession  will  never,  while  the 
title  IS  undetei-mined,  be  enjoined  from  the  mere  ordinary  and  natural  use  of 
the  premises  in  a  manner  not  destructive  of  the  substance;  Snyder  v.  Hopkins, 
31    Kan.   557.  3  Pac.  367.   1    Ames  Eq.   Jur.  509. 


Qi5  INJUNCTIONS    TO    PHKVKXT   TOUTS.  ^  1358 

Avroiij^  is  in  its  essential  nature  better  than  a  remedy  which  per- 
mits the  wrong'  to  be  done,  and  then  attempts  to  pay  for  it  by  the 
pecuniary  damages  which  a  jury  may  assess.  The  ideal  remedy 
in  any  perfect  system  of  achiiinistering  justice  would  be  that  wliich 
absolutely  precludes  the  commission  of  a  Avrong,  not  that  whicii 
awards  punishment  or  satisfaction  for  a  wrong  after  it  is  commit- 
ted. .  .  . 

§  1358.  Slander  of  Title— Libels— Wrongful  Use  of  Name.— Part- 
ly by  analogy  with  the  restraint  of  trespasses,  and  partly  by  analogy 
with  the  restraint  of  that  fraud  upon  the  public  and  upon  the 
proprietor  which  is  involved  in  the  use  of  counterfeited  trade-mai-ks, 
the  English  courts  have,  by  recent  decisions,  exercised  the  injunc- 
tive jurisdiction,  to  restrain  injurious  publications  concerning  prop- 
erty which  operate  as  a  slander  of  the  owner's  title,  and  libelous 
publications  which  are  injurious  to  the  plaintiffs  business,  trade, 
oi'  profession,  and  the  wrongful  use  of  a  name  by  which  the 
public  would  be  misled,  and  the  plaintiff  injured  in  his  business.^ 
.  .  .  The  American  courts  seem,  thus  far,  unwilling  to  follow  the 
example  of  the  recent  English  decisions,  and  they  decline  to  extend 
the  jurisdiction  so  as  to  restrain  such  torts  as  libels  on  business, 
slanders  of  title,   and  the  like.' 

'  Tliis  oxtension  of  the  jurisdiction  resulted  from  a  general  provision  of  the 
Judicature  act  that  "an  injunction  may  be  granted  .  .  .  by  an  interlocutory 
order  of  the  court  in  all  cases  in  \vliich  it  shall  appear  to  the  court  to  be 
just  or  convenient  that  such  order  should  be  made" :  36  &  37  Vict.  Ch.  66,  sec.  25, 
subs.  8.  Such  publications  may  be  restrained  by  preliminary  as  well  as  by 
final  injunction.  The  jurisdiction  is  exercised  with  great  caution,  and  only 
where  the  facts  are  clearly  established,  and  the  untruth  of  the  publication 
is  satisfactorily  showTi.  The  following  are  the  most  important  eases:  Quartz 
Hill,  etc.,  Co.  V.  Beall,  L.  R.  20  Ch.  Div.  501,  507;  Lewis  386;  Loog  v.  Bean,  L.  R. 
26  Ch.  D.  306,  Lewis  388;  Collard  v.  Marshall  (1892),  1  Ch.  571.  Lewis  302. 
English  decisions  prior  to  the  Judicature  act  had  denied  the  jurisdiction  to 
restrain  a  publication  on  the  ground  that  it  was  libellous:  Prudential  Assur. 
Co.  V.  Knott   (1874).  10  Ch.  142,  1  Keener  53,  Lewis  314. 

-  Biandreth  v.  Lance,  8  Paige  24,  34  Am.  Dec.  368,  1  Keener  47.  1  Scott 
228,  Lewis  303;  Boston  Diatite  Co.  v.  Florence  Mfg.  Co.,  114  Mass.  69,  19  Am. 
Rep.  310,  1  Keener  51,  Shep.  303,  Lewis  320;  Life  Assoc,  of  America  v.  Booglier.. 
3  .Mo.  App.  173,  Lewis  323.  But  while  a  publication  will  not  be  restrained 
merely  because  it  is  libellous,  yet  where  there  is  other  legitimate  ground  for 
injunction,  the  fact  that  the  ])Tib]ication  is  libellous  will  not  prevent  the  injunc- 
tion from  being  issued.  A  crime  and  a  libel,  in  this  respect,  stand  upon  llie 
same  tooting.  See  Emack  v.  Kane.  34  Fed.  46.  Lewis  326  (defendant  enjoine<l 
from  sending  circulars  to  plaintiff's  customers,  not  in  good  faith  but  maliciously, 
threatening  suits  for  infringemeiil  by  jilainliff  of  defendant's  patent)  :  Casey  v. 
Typographical  Union.  45  h'oi].  1:15.  12  i,.  R.  A.  193.  Lewis  241  (boycotting 
circular).     See  2  Pom.  Eq.  Rem.  S  (130.  and  cases  cited. 

The  "Riqhf  of  Priroc)/." — Willii)i  iccent  years  an  attempt  has  been  made 
to  obtain  recognition  for  a  so-called  right  of  privacy.     It  has  been  maintained. 


EQUITY    JUKISPKUDENCE.  846 


SECTION  III. 

MANDATORY  J XJUXCTIOXS. 

ANALYSIS. 

§  1359.     Nature  and  object;   when  granted. 

§  1359.  Nature  and  Object — When  Granted.^This  term,  in 
strictnessj,  is  confined  to  inteiiocutoiy  or  preliminary  injunctions. 
iWTTere.  on  the  final  hearing  in  a'tase  of  nuisance,  or  interference 

for  example,  that  an  individual  has  a  right  not  to  have  his  portrait  or 
representation  published  in  any  form,  without  his  consent.  As  yet,  this  doc- 
trine has  not  been  generally  reeogniTied;  although  a  few  eases  now  sustain  it, 
and  it  was  repudiated  by  a  bare  majority  only  of  the  New  York  court  of 
appeals  in  Eoberson  v.  Rochester  Folding  Box  Co.,  171  X.  Y'.  538,  89  Am.  St. 
Rep.  828,  64  X.  E.  442,  59  L.  R.  A.  478,  1  Scott  178,  Lewis  354.  See.  also, 
Schuyler  v.  Curtis,  147  X.  Y.  434,  49  Am.  St.  Rep.  671,  42  N.  E.  22,  31  L.  R.  A. 
280,  Lewis  344  (reversing  27  Abl).  X.  C.  387,  15  X.  Y.  Supp.  787,  64  Hun.  .51)4, 
19  X.  Y.  Supp.  264,  1  Keener  93);  Corliss  v.  E.  W.  Walker  Co.,  57  Ped. 
434,  64  Fed.  280.  Lewis  337.  In  a  verj^  recent  Georgia  case,  the  right  was 
clearly  recognized,  by  a  unanimous  court,  in  a  suit  at  law  for  damages.  The 
publication  of  the  plaintiff's  portrait  was  the  wrong:  Pavesich  v.  Xew  Eng- 
land Life  Ins.  Co.  (Ga.),  50  S.  E.  68,  1  Scott  194.  The  eases  must  be  carefully 
distinguished  from  those  in  which  a  property  right  is  involved,  as  Avhere  a 
photographer  in  breach  of  trust  publishes  a  likeness,  or  where  a  party  publishes 
private  letters;  see  ante,  §   1353. 

Injunction  in  cases  of  strikes,  boycotts,  etc. — These  eases,  so  numerous  in 
recent  years,  more  frequently  involve  questions  (often  difficult  and  not  fully 
settled)  in  the  law  of  torts,  than  questions  as  to  the  propriety  of  the  equitable 
remedy  of  injujiction.  It  is  well  settled  that  actual  or  threatened  violence 
by  striking  workmen  to  the  plaintiff's  employees  or  to  persons  seeking  em- 
ployment from  him  is  a  substantial  injury  to  his  business  which  will  be 
restrained  by  injimction:  Springhead  Spinning  Co.  v.  Riley  (1868),  L.  R.  6  Eq. 
551.  1  Scott  763,  Lewis  204;  Sherry  v.  Perkins,  147  Mass.  212,  9  Am.  St.  Rep. 
689,  17  N.  E.  307,  1  Scott  766,  1  Keener  771,  H.  &  B.  770;  Murdock  v.  Walker, 
152  Pa.  St.  595,  34  Am.  St.  Rep.  678,  25  Atl.  492,  Lewis  247:  Vegalahn  v. 
Guntner,  167  Mass.  92,  57  Am.  St.  Rep.  443,  44  X.  E.  1077,  35  L.  R.  A.  722, 
H.  &  B.  773;  Jersey  City  Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  53  Atl.  230. 
1  Scott  768.  .  It  is  no  objection  to  the  exercise  of  the  jurisdiction  that  the 
acts  souglit  to  be  enjoined  are  crimes:  see  ante,  §  1347,  note;  Hamilton-Brown 
Shoe  Co^  V.  Saxey.  131  :Mo.  212,  52  Am.  St.  Rep.  622,  32  S.  W.  1106,  H.  &  B. 
77!>,  Lewis  27(5.  As  to  interference  with  the  employees  of  a  receiver,  see  ante, 
S  1336.  note:  United  States  v.  Kane.  23  Fed.  748,  Lewis  212.  It  is  generally 
held  that  no  injunction  will  lie  to  restrain  persons  inducing  others  by  entreaty 
and  persuasion,  without  intimidation,  to  leave  the  service  of  the  plaintiff  or  not 
enter  into  his  service:  Reynolds  v.  Everett.  144  X.  Y.  189,  39  X.  E.  72.  26 
L.  R.  A.  591,  Lewis  270.  The  jurisdiction  in  strike  cases  does  not  extend  te 
preventing  workman  from  "striking"  or  leaving  their  employment  in  a  body 
by  concerted  action ;  since  the  effect  of  such  a  decree  would  be  to  enforce  com- 
pulsory service:     Arthur  v.  Oakes,  63  Fed.  310,  Lewis  253. 


647  MAXDATOUY    IXJUXCTIOXS.  §  1359 

With  easements,  or  continued  trespass  analogous  to  nuisance,  the 
i-elief  i;;  ^.-nted  compelling'  the  defendant  to  remove  his  obstruc- 
tions or  ei^ctions,  and  to  restore  the  plaintiff  to  his  original  condi- 
tion, and  tl-£:»?eby  to  end  the  wrong,  the_rem.edy  is  in  faot-an  -ordi- 
nary deer  5:  for  an  abatement,  and  is  in  no  proper  sense  an  injunc- 
tion of  £:i.;  kind.  But  in  these  and  similar  eases  4he-^ii:^/t;>ii/mr^ 
injunetioii;  while  purporting  simply  to  restrain  the  wrong,  and^while 
negati'/el-a  its  terms,  may  be  so  framed  that  it  restrains  the  defend- 
ant f?OTo  permitting  his  previous  wrongful  act  to  operate,  and  there- 
fore vi"''taally  compels  him  to  undo  it  by  removing  the  obstructions 
or  erections,  and  b}-  restoring  the  plaintiff  to  his  former  condition. 
Sucr  0n  injunction  is  termed  mandatory,  and  resembles  in  its 
effect  the  restorative  interdict  of  the  Roman  law.  It  Js_useil_where 
the_mjury  is  immediate,  and  pressing,  and  irreparable,  and  clearly 
established  hy  the  proofs,  and  not  acquiesced  in  by  the  plaintiff', 
since  an  order  directly  compelling  an  abatement  of  the  nuisance, 
or  a  removal  of  the  obstructions,  cannot  be  made  upon  interlocutory 
T.otion.^     The  rule  is  fully  established,  at  least  by  the  English  do- 

'•The  boycott  is  economic  pressure  brought  to  bear  on  those  who  deal,  or  are 
about  to  deal,  in  a  business  way  witli  a  third  person  to  prevent  them  from 
dealing  with  such  third  person  .  .  .  — The  method  of  persuasion  used  is 
always  the  threat  of  business  harm,  usually  couched  in  the  formula :  If 
you  deal  with  A,  we  won't  deal  with  you" :  W.  D.  Lewis,  in  53  Am.  Law 
Reg.  466.  A  boycott  of  a  trader  by  laborers  has  nearly  always  been  lield 
illegal  and  a  proper  subject  for  injunction:  Casey  v.  Cincinnati  Typographical 
Union,  45  Fed.  135,  12  L.  R.  A.  193,  Lewis  241;  Gray  v.  Building  Trades 
Council,  91  Minn.  171,  103  Am.  tSt.  Rep.  477,  97  X.  \V.  G63,  03  L.  R.  A.  753, 
Lewis  294  (but  a  mere  notification  that  the  trader  is  "unfair,"  without  threat 
or  intimidation,  should  not  be  enjoined).  Whether  a  boycott  directed  against 
members  of  a  rival  labor  union,  to  prevent  members  of  the  latter  from 
obtaining  or  retaining  employment  jnay  be  enjoined  at  the  suit  of  the  latter, 
is  a  question  on  which  the  cases  are  sharply  in  conflict:  compare  Erdman 
v.  Mitchell,  207  Pa.  St.  79,  99  Am.  St.  Rep.  783,  56  Atl.  327,  Lewis  290  (injunc- 
tion granted)  with  National  Protective  Assn.  v.  Gumming,  170  X.  Y.  315,  SS 
Am.  St.  Rep.  648,  63  X.  E.  369,  58  L.  R.  A.  135. 

An  agreement  or  conspiracy  among  employers  to  refuse  employment  to 
certain  laborers,  generally  carried  into  effect  by  a  "blacklist"  of  the  excluded 
laborers,  circulated  among  the  parties  to  the  agreement,  is  in  some  respects  the 
converse  of  the  labor  strike,  and  seems  to  be  treated  with  leniency  or  approval 
by  the  courts:  Worthington  v.  Waring,  157  Mass.  421,  34  Am.  St.  Rep.  294,  32 
X.  E.  744,  20  L.  R.  A.  342,  Lewis  250  (no  injunction). 

"The  primaiy  rights  which  are  violated  by  strikes  and  boycotts,  and  tlie 
remedial  rights  whicl:  thereby  arise,  are  far  from  a  condition  of  complete 
development  or  accurate  definition.  The  law  of  this  whole  subject  is  to  a  large 
extent  unsettled,  and  involved  in  dispute  and  difierence  of  opinion  among 
judges  and  text-writers":  Atkins  v.  W.  &  A.  Fletcher  Co.,  65  X.  .T.  Vq.  658. 
55  Atl.  1074,  Lewis  281,  by  Stevenson.  V.  C.  (an  instructive  opinion). 

'  Preliminary  mandatory  injunctions  liave  undoubtedly  been  granted  more 
freely    by   the    English    courts    than    by    the    American.      Indeed,    it   has   been 


§  1359  EQUITY    JURISPKUDKXCE.  848 

eisions,  and  is  not  controverted  by  American  authority,  that  in  such 
cases,  where  the  facts  are  clearly  established  and  the  injury_i5.i'6al, 
and  the  plaintiff  acteH  promptly  upon  his  acquiring  knowledge  of 
the  defendant's  proceeding,  a  preirminary  mandatory  injunction 
may  be  granted,  although  the  act  complained  of  was  fully  com- 
pleted before  the  suit  was  commenced.  It  should  be  observed,  how- 
ever, that  no  other  equitable  remedy  is  more  liable  to  be  defeated 
by  acquiescence,  or  by  delay  on  the  plaintiff's  part  from  which 
acquiescence  may  be  inferred.  The  cases  require  of  the  plaintiff* 
a  promptness  in  objecting  and  in  taking  steps  to  enforce  his  ob- 
jection, upon  receiving  notice  of  the  defendant's  structures  or  erec- 
tions which  are  sought  to  be  restrained,  if  the  circumstances  are 
such  that  the  defendant  would  be  unnecessarily  prejudiced  by  the 
plaintiff' 's  delay .^ 


SECTION  IV. 

TO    RESTRAIN    ACTIONS    OR    JUDGMENTS    AT    LAW. 

ANALYSIS. 

§   1360.     Orijifiii  of  the  jurisdiction. 

§   1301.     When  the  jviri.sdiction  is  not  exercised:     General  doctrine. 
§   1302.     \Mien    the    jurisdiction    may    be    exerci-sed:       First    class;    ex- 
clusive   equitable    interests    or    rights    involved. 

said  in  some  American  decisions  that  a  mandatory  interlocutory  injunction 
would  never  be  granted.  This  doctrine  is  not  only  opposed  to  the  over- 
whelming weight  of  authority,  but  is  contrary  to  the  principle  which  regulates 
the  administration  of  preventive  relief,  and   is  manifestly  absurd. 

In  Robinson  v.  Lord  Byrem,  1  Brown  Ch.  588,  1  Ames  Eq.  Jur.  500,  1 
Keener  836,  Lord  Eldon  granted  a  preliminary  injunction  restraining  defen— 
«lant  "from  using  and  maintaining  certain  dams,  gates,  etc.,  so  as  to  prevent 
water  from  flowing  to  plaintiff's  mill  as  it  liad  done."  This  was  done  for  the 
express  purpose  of  compelling  defendant  to  remove  the  dams,  gates,  etc.,  which 
lie  had  constructed.  In  Lane  v.  Newdigate,  10  Ves.  192,  1  Ames  Eq.  Jur.  74, 
2  Scolt  73,  2  Keener  139,  Lord  Eldon  granted  a  preliminary  injunction  restrain- 
ing defendant  "from  impeding  plaintiff  from  navigating  [a  certain  canal]  by 
continuing  to  keep  the  canal  banks  and  w^orks  out  of  repair,  by  diverting  the 
water,  or  by  continuing  the  removal  of  the  stop-gate."  Lord  Eldon  said  this 
would  have  the  effect  of  causing  defendant  to  restore  the  stop-gate  and  repair 
the  banks;  and  he  avowedly  granted  the  injimction  for  that  express  object. 
These  two  cases  are  among  the  earliest,  if  not  the  very  earliest,  instances  of 
preliminary  injunctions  intentionally  and  expressly  mandatory  in  their  opera- 
tion. The  following  cases  Avill  furnish  illustrations,  and  will  also  show  the 
limitations  placed  upon  their  use;  Rogers  Locomotive,  etc.,  Works  v.  Erie 
Ry.  Co.  20  N.  J.  Eq.  379,  H.  &  B.  734;  Longwood  Val.  R.  Co.  v.  Baker,  27  N. 
J.  Eq.  160,  1  Keener  847;  Herbert  v.  Pennsylvania  R.  Co..  43  N.  J.  Eq.  23.  10 
Atl.  872.  1  Keener  800;  Baily  v.  Schnitzius.  45  N.  .L  Eq.  178,  16  Atl.  020, 
1  Keener  803.     See  also  ante,  §§  1348b,  13501),  1357,  note. 

-  See  ante.   §   817. 


849  KXJOlXIXCi    LKCiAL    ACTIONS    Oil    .HDUMKXTS.  §  13l)l 

S   1303.     The  same:      Second  class;   lej^al  remedies  inadequate. 

§   13()4.     The    same:      Thii-d    class;    fraud,    mistake,    or    accident    in   the 

trial  at  la\\'. 
§   1305.     Jurisdiction   to   grant  new   trials  at   law  in  the  United  Stales. 

Equitable  relief  against  executions. 

§  1360.  Origin  of  the  Jurisdiction. — The  use  of  injunctions  to 
stay  actions  at  law  was  almost  coeval  with  the  establishment  of 
the  chanceiy  jurisdiction.  Without  this  means  of  interference  to 
protect  the  rights  of  its  suitors,  the  court  of  chancery  could  never 
have  established,  extended,  and  enforced  its  own  jurisdiction.^  It 
is  no  exaggeration  to  say  that,  during  its  formative  periods,  the 
equitable  jurisdiction  was  built  up  through  the  instrumentality 
of  the  injunction  restraining  the  prosecution  of  legal  actions,  where 
the  defendants  sought  the  aid  of  chancery,  which  alone  could  take 
cognizance  of  the  equities  that  would  defeat  a  recovery  at  law 
against  them.  This  was  not  accomplished,  however,  without  a 
long  and  severe  opposition  from  the  common-law  judges,  whicli 
continued  until  the  reign  of  James  I.^  The  jurisdiction  then  firmly 
established  by  judicial  authority  has  never  since  been  questioned.''' 
The  reasons  urged  by  the  connnon-la'vv  judges  were  frivolous.  The 
injunction  is  not  addressed  to,  nor  does  it  operate  upon,  the  courts 
of  law;  instead  of  denying  or  interfering  Avith,  it  virtuall}^  admits 
and  assumes,  their  jurisdiction.  It  is  addressed  to  the  litigant  par- 
ties, and  prohibits  them  from  resorting  to  the  legal  jurisdiction, 
Ix'cause  their  c-ontroversies,  depending  upon  equitable  principles, 
or  involving  ecpiitable  features,  can  only  be  fully  and  finally  deter- 
mined by  a  tribunal  having  the  equitable  jurisdiction.  Injunction 
is  the  remedy  which,  above  all  others,  neceysarilj^  operates  in  i)er- 
st/uam. 

§  1361.  When  the  Jurisdiction  is  not  Exercised — General  Doc- 
trine.— Where  a  court  of  laAv  can  do  as  full  justice  to  the  parties 
and  to  the  matter  in  dispute  as  can  be  done  in  equity,  a  court  of 
e(;uity  will  not  stay  proceedings  at  law,^  Equity  will  not  restrain 
a  legal  action  or  judgment  where  the  controversy  would  br  de- 
cided by  the  court  of  equity  upon  a  ground  equally  available  at 
law,  unless  the  party  invoking  the  aid  of  equity  can  show  some 
special  equitable  feature  or  ground  of  relief;  and  in  the  case  a,s- 

'  See  Spenc(!'s  Eq.  .Tur.  G74. 

-  For  a  full  account  of  this  memorable  contest,  and  its  settlement 
under  .lames  1.,  see  1  Lord  Cami)l)eII's  Lives  of  the  Chancellors,  23.5;  1  Spencc"s 
Eq.  .Inr.   (IT.",:    1    Hallam's  Const.   Hist.   472. 

'.Aylofle  V.  Duke.  2  Freem.  Ch.  152  (A.  D.  1G55)  ;  Hawkshaw  V. 
Parkins.  2  Swanst.  530.  54S ;    Franklyn   v.  Thomas,  3  :Mer.  225.  234. 

'Southampton  Dock  Co.  v.  Southampton,  etc..  Board,  L.  R.  11  Eq. 
254. 

54 


§  1361  EQUITY    JLTJ3PEUDEHCS»  QBQ 

S»^2med,  this  special  feature  or  grouiicl  must  necessarily  be  something 
ifjnnected  with  the  mode  of  trying  and  deciding  the  legal  action, 
«nd  not  with  the  cause  of  actioE.  or  the  defense  themselves.^  It 
is  not  such  a  special  equitable  ground  of  interference  that  the 
party  has,  by  his  own  act  or  g mission,  failed  to  effectually  avail 
himself  of  a  valid  defense  at  'avsTj  nor  that  the  court  of  law  has 
decided  a  question  of  law  oi  of  fact  erroneonsly."  The  principle 
is  well  estalilished,  and  is  u:o.iversal  in  its  application,  that  when 
a  cause  belongs  to  the  juri^clietion  of  the  law  courts,  eojuity  will 
never  interfere  to  restrain  tlie  prosecution  oi  the  action,  nor  to  stay 
proceedings  on  the  judgment  or  execution,  upon  any  mere  legal 
grounds,  although  it  may  be  dsmonstrated  tliE^t  the  complainant  in 
equity  (generally  the  def  iiidant  at  law)  had  a  valid  legal  defense, 

-  Because  it  is  assumed  that  the  ground  of  decision  is  equally  available 
at  law  and  in  equity,  an:,  therefore  tlie  special  equitable  feature  must  be 
(Something  dehors  the  very  ::ssi!ie3  and  merits  of  tlae  controversy:  See  Harri- 
son V.  Nettleship  2  Mylne  &  K.  423. 

^Simpson  v.  Lord  Hoivcis;-!,  3  Mylne  &  C=  Q7,  108,  2  Ames  Eq.  Jur.  124,  '' 
Keener  323;  Bateman  v,  WiHoe,  1  Sehoales  &  L.  201,  204,  206.  In  the  lastv 
named  case  Lord  Redesci.als  stated  ILis  rale  ia  language  vi^hicli  has  ever  since 
been  regarded  as  a  corieeo  exposition  of  the  principle:  "It  is  not  sufficient  to 
show  that  injustice  hao  bees  done,  but  that  it  has  been  done  under  circumstances 
which  authorize  the  rouTt  to  interfere.  Because  if  a  matter  has  already  been 
investigated  in  a  eov  ■  i  of  justice,  according  to  the  common  and  ordinary  rules 
of  investigation,  a  court  of  equity  cannot  take  on  itself  to  enter  into  it  again. 
Rules  are  establish'::!,  some  by  the  legislature,  some  by  the  courts  themselves, 
for  the  purpose  of  ^iiitting  an  end  to  litigation,  and  it  is  more  important  tiiat 
an  end  should  be  put  to  litigation  than  that  justice  sliould  be  done  in  every 
rjase Th*^   iiiattention  of  parties  in  a  court  of  law  can  scarcely  be  made 

,.  subject  for  t.i3  interference  cf  a  eciirt  of  equity.  There  may  be  cases 
cognizable  at  Itw  and  also  in  equity,  and  of  which  cognizance  cannot  be 
effectually  tak'  _i  at  law;  av.d  therefore  equity  does  sometimes  interfere,  as 
in  cases  of  cMnpllcatecl  aeeoiints,  wfieire  the  party  has  not  made  a  defense; 
because  it  w'.rj  impossible  fo'r  liirn  to  do  it  eflfectually  at  law.  So  where  a 
verdict  has  '.csa  obtained  by  iraiicl,  OT  wfteie  a  party  has  possessed  himself 
improperly  is  something'.  Toy  means  of  whieli  he  has  an  tmconscientious 
advantage  i:t  law,  virhieh  eqialty  will  pwi  OBt  of  the  way  or  restrain  him  from 
using.  Bi't.  withouit  eircimistanees  of  that  kind,  I  do  not  know  that  equity 
ever  does  interfere  to  graiat  a  trial  of  a  matter  wliieli  has  already  been  dis» 
cussed  iO  a  eojirt  of  law, — a  matter  capable  of  being  discussed  tliere.  and 
over  whici  a  eoiirt  oi  law  Iiad  IbII  Jiiifisdietion."  It  should  be  carefully  observed 
that  thf  chaneelloT  is  Bot  speakiBg  of  those  eases  which  involve,  in  k.  ''*  very 
cause  oi"  aetloH  or  defense,  features  of  interests  cognizable  only  by  courts  of 
equity  J  no"  o:?  ths  otfeir  class  of  eases  which,  in  ordinary  phraseology,  belong 
to  the  concurrent  jurisdiction  both  of  law  and  equiity;  he  refers  to  cases  Avhich  in 
themselves  present  no  equitable  aspect,  and  properly  ccrne  within  the  jurisdic- 
tion of  the  law,  but  which,  for  some  reason  or  another,  ka'se  "been  wrongly  tried 
and  (Ipeided  hy  the  eonrt  of  law.  There  must  have  been  some  special  equitable 
'^i-ound  conn'""^"''   with  this  wrongful  trial  and  decisions  ia  oirdsi,'  iliat  GGvity, 

■nay  interfere  and  restrain  the  judgment. 


851  ENJOINING    LEC4AL    ACTION^    OEt    J  LDGMEXT&,  '  §  aS  O.o 

\ 

wliicli  was  not  made  available  either  through  the  error  of  the  30ur^ 
in  determining-  the  law  or  the  facts,  or  the  omissions  of  himselr 
or  his  counsel  in  presenting  it,  or  in  obtaining  the  evidence  by 
which  it  could  have  been  supported.** 

^;  1362.  When  the  Jurisdiction  may  be  Exercised— First  Class--« 
Equitable  Rights. — I  i)ass  from  this  negative  vievv^  to  consider-  ttie 
doctrine  on  its  affirmative  side.    The  cases  in  Avhich,  according  jc 

'Hendrickson  v.  Hinckley,  17  How,  443,  445,  15  L.  ed.  123,  Shep.  292;  Yar» 
borough  V.  Thompson,  3  ISmedes  &  M.  291,  41  Am.  Dec,  62G»  In  HendrieksOTj 
V.  Hinckley,  Mr,  Justice  Curtis  stated  the  principle  in  a  very  concise  mannev^ 
'"A  court  of  equity  does  not  interfere  with  judgments  at  law,  unless  the  com- 
plainant has  an  equitable  defense  of  which  he  could  not  avail  himself  at 
laA\  because  it  did  not  amount  to  a  legal  defense,  or  had  a  good  defense 
at  law  which  he  was  prevented  from  availing  himself  of  by  fraud  or  acci=« 
dent  unmixed  with  negligence  of  himself  or  his  agents." 

It  is  immaterial  whether  the  question  or  matter  relied  upon  by  the  com-* 
pjainant  in  equity  was  considered  by  the  law  court  or  not.  Omission  to 
present  or  to  make  out  a  defense  at  'av;  is  not  a  ground  for  equitable  reliefs 
J^merson  v.  Udall,  13  Vt.  477,  3/  Am.  Dec.  604. 

i'hat  the  legal  defense  was  not  successful,  through  the  ignorance,  negli-* 
genee,  or  mistake  of  the  party's  own  attorney  or  counsel,  is  no  ground  for 
interference:  Payton  v.  McC^uown,  97  Ky.  757,  53  Am.  St.  Rep.  437,  and 
note,  31  S,  W.  874,  31  L.  R.  A.  33. 

ignorance  of  the  facts  constituting  the  defense  does  not  excuse  the  omis- 
sion of  the  party  to  make  it,  nor  entitled  him  to  the  aid  of  equity,  unless  it  can 
be  shown  that  the  party  could  not  have  acquired  the  information  by  the 
alligent  and  careful  labor  in  preparing  the  cause  for  trial  which  he  is  bound 
to  use:     Mayor  of  New  York  v.  Brady,   115  N.  Y.  616,  22  N.   E.  237. 

By  Act  of  Congress  (Mar.  2,  1793)  federal  courts  are  prohibited  from  en- 
joining proceedings  in  state  courts,  except  in  matters  relating  to  bankruptcy 
proceedings:  1  U.  S.  Gomp.  Stats.,  1901,  §  720;  U.  S.  v.  Parkhurst.  etc., 
Co.,  176  U.  S.  317,  20  Sup.  Ct.  423,  44  L.  ed.  485;  see  Riverdale  Cotton  Mills 
JP,  Alabama,  etc.,  Co.,  198  U.  fS.  188,  25  Sup.  Ct.  029  (injunction  permitted 
IBrheu  necessary  to  render  efl'ective  the  federal  court's  own  decree ) . 

As  a  general  rule,  a  court  of  equity  will  not  enjoin  proceedings  in  another 
court  of  equity  of  co-ordinate  jurisdiction;  Furnald  v.  Glenn,  64  Fed.  49,  12 
ti.  C.  A.  27,  26  U.  S.  App.  202. 

In  general,  a  court  of  equity  has  no  jurisdiction  to  enjoin  criminal  jiroceed- 
ings:  In  re  Sawyer,  124  U.  S.  200,  8  Sup.  Ct.  482,  31  L.  dd.  402,  Shep.  5;  Davis 
V.  American  Society,  75  N.  Y.  362,  2  Ames  Eq.  Jur.  104,  1  Keener  lOS; 
Crighton  v.  Dahnier,  70  ]\liss.  002,  13  South.  237,  21  L.  R.  A.  84,  Shep.  15; 
Sauii  V.  -BroA\'ne.  L.  ft.  10  Ch.  App.  64,  2  Ames  Eq.  Jur.  100.  For  exceptions 
in  case  ot  prosecutions  under  a  void  municipal  ordinance,  see  ante,  §§  254,  1345, 
note. 

Since  a  court  ot  equity  acts  in  personam,  it  has  the  power  to  restrain  ]mrties 
Ot  whom  it  has  jurisdiction  from  prosecuting  suits  in  other  states  or  foreign 
countru's,  and  will  exercise  the  power  -when  necessary  to  prevent  one  citizen 
from  obtaining  an  inequitalile  advantage  over  another  citizen:  Lord  Portar- 
lington  V.  Soulby,  3  Mylne  &  K.  104,  1  Ames  Eq.  .fur.  24,  1  Keener  15:  Ivemp- 
SWii  V.  Kempson.  58  N.  J,  Eq,  J-i.  4<i  Atl.  97;  1  Ames  Eq.  Jur.  20;  see  59  Am. 
fi)«,  ttep.  B79  it.i  GQt& 


§  1363  EQUITY    JURISPRUDENCE.  852 

its  original  jurisdiction  unaffected  by  statute,  equity  may  interfere 
by  injunction,  and  restrain  an  action  at  law  either  before  or  after 
judgment,  may  be  reduced  to  three  general  classes:  1.  Where  the 
controversy,  in  addition  to  its  legal  aspect,  involves  some  equitable 
estate,  right,  or  interest  which  is  exclusively  cognizable  by  a  court 
of  equity,  so  that  a  complete  determination  of  the  issues  cannot  be 
made  by  a  court  of  laAv,  it  is  well  settled  that  equity  not  only  may, 
but  must,  interfere  at  the  suit  of  the  party  in  whom  the  equitable 
estate  or  right  is  vested,  and  restrain  the  action  at  law.  and  decide 
the  whole  controversy.  This  is  so  when  the  defendant  at  law  has 
a  purely  equitable  defense  Avhich  the  court  of  law  will  not  recog- 
nize or  enforce,  and  especially  when  he  is  entitled  to  some  affirmative 
equitable  relief  which  will  clothe  him  with  a  legal  right  or  title, 
and  thus  defeat  the  legal  action  brought  against  him.  Cases  of  this 
kind  belong  to  the  first  branch  of  the  exclusive  jurisdiction  of  equity 
as  described  in  the  first  volume.^ 

§  1363.  The  Same.  Second  Class. — •?.  The  second  general  •  class 
includes  those  cases  which  belong  to  the  second  branch  of  the 
exclvsive  jurisdiction  of  equity  as  heretofore  described;^  or,  in  the 
ordinary  nomenclature  of  the  books,  cases  over  the  facts  of  which 
both  courts  of  law  and  of  equity  have  a  concurrent  jurisdiction  t? 
grant  their  respective  and  distinctive  remedies ;  for  example,  cases 
involving  actual  fraud,  such  as  suits  upon  instruments,  where  the 
defense  is  fraud  in  procuring  their  execution.  Where  the  jurisdic- 
tion is  tluLS  said  to  be  concurrent,  or  in  other  words,  where  the 
interests  and  primary  rights  of  the  parties  are  legal,  and  the  only 
({uestion  between  the  two  courts  relates  to  the  adequacy  of  their 
respective  remedies,  as  a  general  rule  the  tri])unal  which  first  ex- 
ercises jurisdiction  is  entitled,  or  at  least  permitted,  to  retain  an 
exclusive  control  of  the  issues.-  It  is  therefore  a  well-settled  doc- 
trine that  in  cases  of  this  kind,  where  the  primary  rights  of  both 
parties  are  legal,  and  courts  of  law  will  grant  their  remedies,  and 
courts  of  equity  may  also  grant  their  peculiar  remedies,  equity  will 
not  interfere  to  restrain  the  action  or  judgment  at  law,  provided  tlie 

^  See  ante,  §  219,  and  cases  cited  in  note.  The  case^^  to  which  this  doctrine 
is  applicable  are  numberless,  and  in  fact  cover  the  entire  domain  of  equitable 
estates,  interests,  and  primary  rights  whicli  constitute  the  first  branch  of 
the  exclusive  jurisdiction.  See  Earl  of  Oxford's  Case,  1  Cli.  R.  1,  2  Lead.  Cas. 
Kq.  12!)1,  Shep.  2G ;  (ireenlee  v.  Gaines,  13  Ala.  inS.  4S  Am.  Dec.  49;  Johnson 
V.  Christian,  128  U.  S.  374,  9  Sup.  Ct.  S7,  31  L.  ed.  820. 

Under  the  application  of  this  doctrine,  an  action  at  law  may  be  enjoined, 
in  order  to  avoid  a  nniltiplicity  of  suits,  or  a  circuity  of  action:  See  ante, 
SS  245  et  seq. 

'  See  ante,  §§  220,  221. 

^  See  ante,  §   179. 


853  EXJOIXIXG    LEGAL    ACTIONS    OR    JUDGMENTS.  §  1364 

legal  remcJij  will  he  (Klcijuatr;  that  is,  provided  the  judgment  at  law 
will  do  full  justice  between  the  parties,  and  will  ati'ord  a  complete 
relief;  the  adequacy  or  inadequacy  of  the  legal  remedy  is  the  sole 
and  universal  test.^  On  the  other  hand,  in  cases  of  this  general 
class,  equity  will  enjoin  the  action  at  law,  and  will  determine  the 
whole  cause,  whenever  the  legal  remedy  is  inadequate ;  and  the 
legal  remedy  is  deemed  to  be  inadequate  if  the  ends  of  justice  wonld 
not  be  satisfied  by  a  mere  judgment  for  the  defendant  in  the  action 
at  law.  but  would  require  that  some  distinctively  equitable  relief, 
such  as  a  cancellation  or  a  reformation  of  the  instrument  sued  upon, 
be  conferred  upon  him.  If  any  affirmative  equitable  relief  is  ne- 
cessary to  a  full  settlement  of  the  controversy,  and  to  a  complete 
protection  of  the  defendant's  rights,  a  court  of  equity  will  interfere, 
entertain  a  suit  for  such  relief,  and  enjoin  the  action  at  law.*  The 
scope  of  this  particular  doctrine  is  plainly  identical  with  that  which 
governs  the  second  branch  of  the  exclusive  jurisdiction  of  equity 
as  described  in  the  first  volume.  Whenever  a  court  of  equity  exer- 
cises its  jurisdiction  over  a  case  involving  only  legal  interests  and 
primary  rights,  for  the  purpose  of  awarding  its  exclusively  equitable 
remedies,  because  the  legal  remedies  would  be  inadequate,  it  will 
always,  if  necessary,  enjoin  an  action  at  law  which  interrupts  the 
full  exercise  of  its  jurisdiction. 

§  1364.  The  Same.  Third  Class. — 3.  In  the  two  preceding  classes 
of  cases  the  ground  for  interference  was  some  equitable  element 
or  feature  involved  in  the  very  subject-matter  of  the  controversy, 
or  in  the  remedies  appropriate  thereto,  which  constituted  an  equi- 
table defense  in  full  or. in  part  to  the  legal  action,  and  over  which 
the  court  of  equity  had  either  a  concurrent  or  an  exclusive  jurisdic- 
tion. In  the  present  class  there  is  no  such  equitable  element  or 
feature  of  the  controversy;  there  is  no  equitable  defense  embraced 
in  any  possible  issues,  no  equitable  right  or  interest  of  the  defendant 
which  defeats  or  modifies  the  legal  cause  of  action;  all  the  issues 
are  wholly  legal.  The  ground  for  the  equitable  jurisdiction  to  in- 
terfere is.  therefore,  something  dehors  the  issues,  something  arising 
out  of  or  connected  with  the  trial  itself  of  the  legal  action  in  the 
court  of  law.     It  was  a  settled  doctrine  of  the  equitable  jurisdic- 

^  See  ante.  §§  220.  221;  and  eases  oited ;  Insiiraneo  Co.  v.  Bailey.  1-'?  WalL 
610.  .3  Keener  474:  rjrand  Chute  v.  Winegar,  15  Wall.  373.  2  Ames  Eq.  Juv.  116; 
Hoaro  v.  Kremridjje.  L.  R.  8  Ch.  22;    14  Eq.  o22.  2  Ames  Eq.  Jnr.  121. 

*  Hamilton  v.  Cummings.  1  Johns.  Ch.  517,  1  Scott  104,  1  Keener  317;  Boj'ce's 
Ex'rs  V.  Grundy,  3   Pet.  210.  215.  Shep.  10. 

There  is  some  disagreement  among  the  decisions  upon  the  question  of 
equity  taking  jurisdiction  to  compel  the  cancellation  of  an  instnmient.  when 
the  contracting  party  who  seeks  tins  relief  miglit  set  up  the  same  defense  in 
an  action  at  law  and  defeat  a  recovery.     See  post.  §   1377. 


§  1364  EQUITY    JURISPRUDEXCE.  •  854' 

tion — and  is  still  the  subsisting  doctrine  except  where  it  has  been 
moditied  or  abrogated  by  statute,  or  has  become  obsolete  through 
the  enlarged  powers  of  the  law  courts  to  grant  new  trials — that 
where  the  legal  judgment  was  obtained  or  entered  through  fraud, 
mistake,  or  accident,  or  Vv'here  the  defendant  in  the  action,  having 
a  valid  legal  defense  on  the  merits,  was  j^revented  in  any  manner 
from  maintaining  it  by  fraud,  mistake,  or  accident,  and  there  had 
been  no  negligence,  laches,  or  other  fault  on  his  part,  or  on  the 
part  of  his  agents,  then  a  court  of  equity  will  interfere  at  his  suit, 
and  restrain  proceedings  on  the  judgment  wiiich  cannot  be  con- 
scientiously enforced.  From  the  very  nature  of  the  case,  this 
interference  takes  place  after  the  judgment,  and  not  while  the 
action  at  law  is  pending.^ 

^  The  fraud  which  is  ground  of  relief  against  ju<lgnients;  does  not  generally 
fall  within  the  definition  of  "actual"  fraud;     See  ante,  §  875. 

Among  the  examples  of  the  fraud,  etc.,  which  are  a  ground  for  this  equitable 
jurisdiction,  are  the  following:  ^^'llore  tlie  defendant  is  prevented  from  de- 
fending by  false  and  fraudulent  promises  or  representations  that  the  pro- 
ceedings will  not  be  carried  on  against  him,  and,  relying  thereon,  he  does 
not  contest  the  case,  as  he  might  havo  done,  and  a  judgment  is  thus 
obtained  against  him:  See  Merriman  v.  Walton,  105  Cal.  408,  45  Am.  St. 
Rep.  50,  38  Pac.  1108,  30  L.  R.  A.  78G:  Brooks  v.  Twiehell.  182  Mass.  443,  94 
Am.  St.  Rep.  002,  05  N.  E.  843.  A  collusive  judgment  in  fraud  of  tlic  rights 
of  a  third  party  may  be  enjoined  by  him:  See  Warren  v.  Union  Bank.  157 
N.  Y.  259,  68  Am.  St.  Rep.  777.  51  N.  E.  1030,  43  L.  R.  A.  256;  Grand  Rapids, 
etc.,  Co.  V.  Haney,  92  INlieh.  558,  31  Am.  St.  Rep.  611,  52  N.  W.  1009,  16  L.  R. 
A.  721.  See,  also,  Piatt  v.  Threadgill.  SO  Fed.  192  (tampering  with  the  jury)  ; 
Baldwin  v.  Davidson,  139  :\Io.  118.  01  Am.  St.  Rep.  400.  40  S.  W.  765  (fraudu- 
lent conduct   on    part    of   judge). 

Perjury  in  obtaining  liie  judgment  is  not,  however,  a  ground  for  the  injunc- 
tion. If  it  were  accepted  as  a  ground  for  relief,  litigation  might  be  emlless; 
the  same  issues  would  have  to  be  tried  repeatedly:  United  States  v.  Throck- 
morton, 98  IJ.  S.  61,  25  L.  ed.  93;  Pico  v.  Cohn,  91  Cal.  129,  25  Am.  St.  Rep. 
159.  25  Pac.  970.  27  Pao.  537.  13  L.  R.  A.  330.  The  harshness  of  this  rule 
has  led  to  exceptions  to  its  general  ojieration  in  several  of  the  states;  see  Pom. 
Eq.  Rem.  §  056. 

Accident,  if  without  any  negligence  on  the  part  of  the  one  who  a-ks  the 
relief,  is  a  well  recognized  ground:  Kansas  &  A.  V.  R.  Co,  v.  Fitzhugli.  61 
Ark.  341,  ,54  Am.  St.  Rep.  211.  33  S.  W.  900  (after  trial  at  law.  right  of 
appeal  is  cut  off  by  the  death  of  the  judge  before  he  can  sign  a  bill  of  excejitions; 
relief  by  compelling  adverse  party  to  submit  to  a  new  trial).  Mistake:  see 
ante,  S  871;  Rust  v.  Ware.  0  Graft.  507.  52  Am.  Dec.  100  (mistake  by  jury  in 
calculating  amount  due).  Surprise:  see  Barnes  v.  Milne.  1  Rich.  Eq.  459.  24 
.\m.  Dec.  422. 

Failure  to  summon,  nolify.  or  serve  process  on  the  defendant,  so  thnt  be 
was  ignorant  of  the  ])rocepdings  against  him.  is  a  ground  for  enjoiniuii  the 
judgment.  If  the  jurisdiction  of  the  coinl;  which  rendered  the  judgment  de- 
jipiided  upon  a  false  return  of  an  officer  to  the  service  of  process,  such  false 
return  may.  by  tlie  woislit  of  autliority.  be  attacked  in  an  action  to  set  aside 
the  judgment:     Smoot  v.  Judd.  161  Mo.  673,  84  Am.  St.  Rep.  738,  61  S.  W.  854; 


855  ENJOIXIXG    LEGAL    ACTIONS    OR    JUDGMEXTS.  §  1365 

§  1365.  Jurisdiction  to  Grant  New  Trials  at  Law  in  the  United 
States. — lluw  far  does  the  doctrine  of  this  third  general  chiss  of 
cases  operate  under  the  modern  legislation,  and  the  principles  of 
equity  jurisprudence  as  adminLstered  in  the  United  States?  The 
jurisdiction  of  the  English  chancery  to  enjoin  judgments  at  law, 
not  by  reason  of  any  equitable  right  involved  in  the  controversy  it- 
self, but  on  account  of  wrongful  acts  or  omissions  accompanying  the 
trial  at  law,  originated  at  a  time  when  the  law  courts  had  little  or 
no  power  to  grant  new  trials  for  such  causes.  To  prevent  a  failure 
of  justice,  a  distinct  head  of  equitable  jurisdiction  was  admitted, 
that  of  virtually  granting  new  trials — of  entertaining  suits  for  a 
new  trial — when  a  judgment  at  law  had  been  thus  obtained  by  fraud, 
mistake,  or  accident;  and  the  injunction  against  further  proceedings 
on  the  judgment  was  a  mere  incident  of  the  broader  relief  which 
set  aside  the  judgment  and  granted  a  rehearing  of  the  controversy 
in  the  court  of  chancery.  The  original  occasion  for  this  special 
jurisdiction  has  disappeared.  In  England,  and  in  most  if  not  all 
of  the  American  states,  either  through  statutes  or  through  judicial 
action,  the  courts  of  law  have  acquired,  and  constantly  exercise, 
full  powers  to  grant  new  trials,  whenever  from  the  wrongful  acts 
or  omissions  of  the  successful  party,  or  from  accident  or  the  mis- 

Dowell  V.  Goodwin,  22  R.  I.  287,  84  Am.  St.  Rep.  842,  47  Atl.  693,  51  L.  R.  A. 
873;  Kibbe  v.  Benson,  17  Wall.  624,  21  L.  ed.  741;  contra,  unless  the  false 
return  was  made  by  the  procurement  of  the  plaintiff  at  law:  Preston  v. 
Kindrick,  94  Va.  760,  64  Am.  St.  Rep.  777,  27  S.  E.  588.  Similarly,  by  the 
better  mile,  an  unserved  party  may  have  relief  against  a  judgment  obtained 
upon  the  unautiiorized  appearance  of  an  attorney  in  his  behalf:  Handley  v. 
Jackson,  31   Oreg.  552,  65  Am.  St.  Rep.  839,  50  Pac.  915. 

In  general,  the  party  seeking  the  aid  of  equity  to  enjoin  a  judgment  at 
law  against  him  must  not  onlj'  show  some  ground  for  interference,  within 
the  doctrine  of  the  text,  but  must  also  show  that  he  has  a  good  and  sufficient 
defense  to  the  cause  of  action,  so  that  on  a  re-examination  and  retrial  the 
result  would  be  difierent:  See  Ford  v.  Hill,  92  Wis.  188,  53  Am.  St.  Rep. 
902,  66  N.  W.  115;  and  by  the  prevailing  view,  a  good  defense  on  the  merits 
nuist  be  shown  even  when  the  judgment  is  attacked  for  lack  of  jurisdiction: 
Handley  v.  Jackson,  supra ;  contra,  Magin  v.  Lamb,  43  ]\Iinn.  SO,  19  Am.  St. 
Rep.  216. 

The  party  seeking  the  aid  of  equity  must  also  show  diligence.  A  judg- 
ment will  not  be  enjoined  for  any  defense  or  right  which  could  be  asserted 
in  the  court  of  law,  unless  such  party  can  show, — 1.  That  he  was  pre- 
vented by  fraud,  mistake,  or  accident  from  maintaining  his  legal  rights;  and 
2.  That  the  obstacle  which  prevented  him  could  not  have  been  overcome  or 
avoided  by  any  reasonable  diligence  or  care  on  his  part.  Th<>se  requisites 
are  absolutely  indispensable;  the  rule  is  inflexible,  and  it  is  enforced  with 
special  strictness  when  the  ground  relied  upon  for  relief  is  newly  discovered 
evidence,  which  the  party  had  failed  to  obtain,  through  ignorance  amounting 
to  accident  or  through  fraud:  Warner  v.  Conant,  24  Vt.  351;  58  Am.  Dee. 
178. 


§  1365  EQUITY    jriUSPKUDENCE.  856 

take  of  the  other  party,  or  from  error  or  nilscouduct  of  the  judge  or 
the  jury,  there  has  been  a  failure  of  justice.  In  other  words,  the 
powers  of  the  law  courts  to  set  aside  verdicts  or  judgments  are  so 
ample  as  to  meet  all  the  requirements  of  equity  and  justice,  and 
tlie  special  equitable  jurisdiction  with  respect  to  this  matter  has 
l)ecome  obsolete  in  the  very  large  majority  of  the  states,  if  not  in 
all  of  them.^  The  result  is,  in  my  opinion,  that  practicall}-  the  only 
jurisdiction  now  exercised  by  courts  of  equity  to  enjoin  judgments 
at  law.  where  no  equitable  right  or  interest  is  involved  in  the  con- 
troversy, on  account  of  wrongful  acts  or  omissions  connected  with 
the  trial,  is  a  part  of  and  incidental  to  the  broad  jurisdiction  which 
ecpiity  possesses  to  set  aside  and  cancel  judgments,  deeds,  contracts, 
and  the  like  which  have  been  obtained  through  fraud,  undue  in- 
fluence, or  mistake.  A  court  of  ecjuity,  in  general,  no  longer  assumes 
control  over  a  legal  judgment  for  the  purpose  of  a  new  trial  or  any 
similar  relief;  it  will,  in  a  proper  ca.se  of  fraud  or  mistake,  set 
aside  such  judgment:  and  wherever  it  will  grant  this  final  remedy, 
it  will,  as  a  preliminary  and  incidental  relief,  restrain  by  injunction 
all  proceedings  upon  the  judgment. - 

^  As  an  illustration,  the  California  Code  of  Civil  Procedure,  sec.  657.  au- 
tliorizes  a  new  trial  to  be  granted  for  the  following  causes:  1.  Irregularity 
in  the  proceedings  of  tlie  court,  jury,  or  adverse  party,  or  misconduct  of 
the  court;  2.  ]\Iiseonduct  of  the  jury:  3.  Accident  or  surprise;  4.  Newly 
discovered  evidence;  5.  Excessive  damages;  G.  Insufficiency  of  the  evidence; 
7.  Error  of  law. 

-The  modern  cases,  Avhere  such  judgments  at  law  have  been  enjoined,  will 
be  found,  on  examination,  to  have  arisen  under  the  more  general  power,  which 
equity  clearly  possesses,  of  setting  aside  the  most  solenm  proceedings  when 
tainted  by  fraud.  The  equitable  jurisdiction  to  entertain  bills  for  a  new  trial, 
if  it  exist  at  all,  nnist  be  confined  to  a  very  few  states. 

I'fpiitable  relief  against  executions. — When  there  is  reason  for  relief  against 
the  judgment  there  is,  of  course,  ground  for  relief  against  the  execution 
based  upon  the  judgment.  In  many  cases,  however,  a  judgment  may  be  per- 
fectly valid  and  yet  there  may  be  some  vice  in  tlie  execution  it-elf  or  in  the 
lev}-  which  will  warrant  the  interference  of  equity. 

A  sale  of  real  property  exempt  from  exec\ition.  or  belonging  not  to  the 
judgment  debtor  but  to  a  third  person,  or  a  sale  under  an  invalid  execution, 
may  pass"  no  title  to  the  purchaser,  yet  it  casts  a  cloud  upon  the  title  which 
renders  the  land  unsaleable,  and  may,  therefore,  generally  be  enjoined  or  set 
aside:  see  post,  §§  1398,  1399;  Bishop  v.  Moorman,  98  Ind.  1,  49  Am.  Rep. 
731.  2  Ames  Eq.  Jur.  15G.  On  the  other  hand,  an  injunction  does  net 
ordinarily  lie  to  prevent  the  seizure  or  sale  of  personal  property,  since  the 
actions  of  trespass,  trover  or  replevin  furnish  ample  relief:  Parsons  v.  Hart- 
man.  25  Greg.  517,  42  Am.  St.  Pvep.  803.  37  Pac.  Gl,  30  L.  R.  A.  98.  If, 
however,  these  remedies  are  inadequate,  as  wliere  the  seizure  would  result  in 
the  ruin  of  the  owner's  business,  injunction  is  proper:  Watson  v.  Sutherland, 
5  Wall.  74.  18  L.  ed.  580,  1  Ames  Eq.  Jur.  531,  1  Scott  134.  H.  &  B.  741, 
Shep.  22.  An  execution  sale  will  not  be  enjoined  or  set  aside  for  mere 
irregularities:  Gardner  v.  Mobile,  etc..  R.  Co.,  102  Ala.  G35,  48  Am.  St.  Rep. 
84,   15  South.   271. 


85T  EEFORMATION    AND    CAJsCELLAXlON.  §  137§ 


THIRD    GROUP. 

REMEDIES  WHICH  INDIRECTLY  ESTABLISH  OR  PROTECT 
INTERESTS  AND  PRIMARY  RIGHTS,  EITHER  LEGAL  OR 

EQUITABLE. 


CHAPTER    FIRST. 

REFORMATION  AND  CANCELLATION. 


ANALYSIS. 


§   1375.     General   nature  and  object. 

§   137(5.     Reformation   and    re-execution   of   instruments. 

§   1377.     Cancellation,   surrender  up,   or  discharge  of   instruments. 

§  1375.  General  Nature  and  Object. — The  ultimate  object  of  the 
remedies  belonging-  to  this  group  is  the  establishment  or  protection 
of  interests,  estates,  and  primary  rights;  but  this  object  is  accom- 
plished indirectly.  While  these  remedies  are  not  so  completely 
ancillary  as  interpleader  and  receivership,  yet  they  are  to  a  certain 
extent  auxiliary.  They  do  not,  like  a  specific  performance,  or  the 
execution  of  a  trust,  or  an  assignment  of  dower,  or  partition  of 
land,  operate  directly  and  immediately  to  establish  the  plaintiff's 
title,  and  to  confer  upon  him  the  complete  dominion  over  his  es- 
tate,— the  ultimate  relief  which  he  seeks.  Their  effect  in  establishing 
his  ultimate  dominion  is  indirect.  They  are  often  used  as  the  pre- 
paratory step  which  enables  him  to  obtain,  sometimes  in  the  same 
action,  and  sometimes  in  a  subsequent  suit,  the  ultimate  remedy 
which  finally  establishes  his  rights  or  obligations,  or  restores  him 
to  the  full  enjoyment  of  his  estate.  The  reformation  of  a  policy  nf 
insurance  is  not  a  final  remedy;  but  it  establishes  the  real  contract, 
and  thus  enables  the  assured  to  recover  the  amount  actually  due 
according  to  the  terms  of  that  contract.  The  reformation  of  a 
deed  does  not  directly  restore  the  grantee  to  the  dominion  and 
possession  of  the  land  which  had  been  omitted;  but  it  places  him 
in  a  position  which  enables  him,  if  necessary,  to  assert  his  dominion 
and  recover  the  possession.  The  cancellation  of  a  deed  does  not 
of  itself  directly  establish  the  plaintiff''s  title  and  put  him  in  pos- 
session of  the  land,  but  it  enables  liim,  it  necessary,  xo  assert  his  title 


§  ?.376  EQUITY    JL'RISPRUDEJSrCE.  858 

and  obtain  the  possession.  These  remedies  may  be  obtained 
on  behalf  of  eitiier  a  legal  or  an  equitable  interest,  by  either  a 
legal  or  an  equitable  owner.  The  remedies  constituting  this  group 
are  the  two  following;  reformation  or  re-exeeution  of  instruments, 
and  rescission,  cancellation,  surrender  up,  or  discharge  of  instru- 
ments.^ Since  they  are  chiefly  occasioned  by  fraud  or  mistake,  the 
general  doctrines  and  rules  determining  the  jurisdiction  to  grant 
them,  and  regulating  their  use,  have  already  been  fully  examined 
in  the  preceding  volume. - 

§  1376.  Reformation  and  Re-execution  of  Instruments. — This  sub- 
ject has  already  been  treated  under  the  head  of  Mistake,  and  little 
more  need  here  be  said.^  Equity  has  jurisdiction  to  reform  written 
instruments  in  but  two  well-defined  cases:  1.  Where  there  is  a 
mutual  mistake, — that  is,  where  there  has  been  a  meeting  of  minds, 
—  an  agreement  actually  entered  into,  but  the  contract,  deed,  set- 
tlement, or  other  instrument,  in  its  written  form,  does  not  express 
what  was  reall^^  intended  by  the  parties  thereto;  and  2.  Where  there 
has  been  a  mistake  of  one  party  accompanied  by  fraud  or  other 
inequitable  conduct  of  the  remaining  parties."  In  such  cases  the 
instrument  may  be  made  to  conform  to  the  agreement  or  transaction 
entered  into  according  to  the  intention  of  the  parties.  The  con- 
dition of  fact  giving  rise  to  the  exercise  of  the  jurisdiction  to 
grant  reformation  are  numerous.  Almost  all  written  instruments 
may  be  reformed  when  a  proper  occasion  is  furnished.'' 

'  Keforniation  and  re-exeeution  are  in  fact  one  and  tlie  same  remedy,  de- 
pending upon  the  same  rules;  and  the  same  is  true  of  rc-^eission.  cancellation, 
surrender  up,  and  discharge.  The  decree  for  cancellation  generally  includes 
a  direction  lor  a  surrender  uj),  and,  if  necessary,  for  a  discharge  of  record, 
and  is  frequently  accompanied  by  an  injunction  against  a  suit  at  law  upon 
the  instrument,  or  against  the  negotiation  or  transfer  of  the  instrument  to  other 
peisons:      ante.  S    1340. 

-See  ante.  SS  83S-S71  (on  mistake);  §§  872-021  (on  actual  fraud);  and 
§§  922-074  (on  constructive  fraud).  A  large  number  of  cases  cited  in  these 
cha])ters  illustrate  the  remedies  of  "reformation"  and  "cancellation.'*  In 
particular,  see,  as  to  jurisdiction  to  grant  the  relief  of  reformation  Or  of 
cancellation  on  account  of  mistake,  and  the  conditions  of  fact  which  must 
exist.  §§  870.  871,  and  cases  in  notes.  As  to  cancellation  on  account  of  fraud, 
see  SS  910-921;  English  doctrine:  §  912.  The  American  doctrine:  §  914. 
incidents  of  the  relief,  what  is  required  of  the  plaintiff  as  a  condition  to 
granting  the  relief:  §§  915-917.  Persons  against  whom  granted:  §  918. 
Illustrations:     §S  919-921. 

'§§  838-871. 

-  §  870,  and  cases  cited. 

•^  "If  one  should  execute  a  release  so  broad  in  its  terms  as  to  release  his 
rights  in  pi'operty.  of  which  he  was  wholly  ignorant,  and  which  was  not 
in  contemplation  of  tlie  parties  at  tlie  time  the  bargain  for  the  release  was 
made,"  a  court  of  equity  may  either  cancel  the  release  or  by  reformation, 
restrain    its   application   as   intended:      Cholmondeley   v.    Clinton,   2   Mer.   352; 


859  iiia<'ou-MATio^'  and  caxcellatiox.  §  1377 

§  1377.  Cancellation  and  Surrender  up  or  Discharge  of  Instru- 
ments,— The  jurisdiction  of  equity  to  grant  the  remedy  of  cancel- 
laiion  exists  and  will  always  be  exercised  when  it  is  necessary 

Dungeis  v.  Angove,  2  Ves.  304,  o  Keener  205;  Uainbinann  v.  Scliulting,  75  N. 
Y.  35,  3  Keener  202;  Cleghoru  v.  Zunnvalt,  83  Cal.  155,  23  Pac.  294,  2  Ames 
Eq.  Jur.  197,  3  Keener  322.  Where  the  same  mutual  mistake  has  been 
repeated  in  each  one  of  a  chain  of  conveyances,  under  such  circumstances  as 
to  entitle  any  one  of  the  vendees  to  a  reformation  as  against  his  immediate 
vendor,  the  equity  will  work  back  througli  all,  and  entitle  the  la-,t  vendee  to 
a  reformation  against  the  original  grantor:  Blackburn  v.  Randolph,  33  Ark 
119,  2  Ames  Eq.  Jur.  183.  Similarly,  it  has  been  held  that  if  there  is  a 
mutual  mistake  in  a  mortgage  in  the  description  of  property,  and  the  same 
mistake  is  continued  in  the  foreclosure  decree  and  in  the  sheriff's  deed  to  the 
foreclosure  purchaser,  equity  ^^ill  go  back  to  the  original  transaction  and  reform 
the  mortgage  and  decree  as  well  as  the  deed,  so  as  to  make  them  conform 
to  the  intention  of  the  parties  concerned,  or  if  svich  relief  is  impossible,  the  pur- 
chaser may  be  quieted  in  his  possession  against  the  mortgagor:  Waldi'on  v. 
Letson,  15  N.  J.  Eq.  126,  2  Ames  Eq.  Jur.  223.  It  has  been  held  that  relief 
will  not  be  awarded  to  give  a  party  a  remedy  exactly  equivalent  to  one  he 
has  lost  by  his  o\ra  laches:  Daggett  v.  Ayer,  65  N.  H.  82,  18  Atl.  169,  2 
Ames  Eq.  Jur.  232,  3  Keener  181. 

ISfo  Reformation  in  Favor  of  a  Volunteer. — As  a  general  rule,  equity  will 
not  interfere  in  favor  of  a  volunteer.  Hence  no  relief  will  be  awarded  to  a 
grantee  in  an  imperfect  conveyance  which  is  not  supported  by  either  a  valuable 
or  meritorious  consideration,  against  either  the  grantor  or  his  representatives: 
Else  V.  Kennedy,  G7  Iowa,  37G.  25  N.  W.  290,  3  Keener  429;  Henderson  v. 
Dickey.  35  Mo.  120.  2  Ames  Eq.  Jur.  185;  Eaton  v.  Eaton,  15  Wis.  259, 
2  Ames  Eq.  Jur.  244.  The  doctrine  of  "meritorious"  consideration  in  equity  is 
described,  in  another  connection,  ante,  §§  588-590.  In  some  jurisdictions  it  is 
said  that  the  rule  is  subject  to  the  exception,  that  aftei*  the  death  of  the 
donor  equit>'  will  interfere  to  rectify  a  disposition  which  is  clearly  proved  to 
have  failed,  through  mistake,  to  carry  out  the  donor's  intention:  M'Mechan 
V.  Warburton,  L.  R.,  Ir.,  1  Ch.  D.  435,  2  Ames  TCq.  Jur.  246.  While  reformation 
Avill  not  generally  bo  granted  in  favor  of  a  volunteer  grantee,  it  will  be  given 
to  a  donor  who  shows  that,  through  mistake,  his  deed  does  not  cany  out  his 
intention:     Andrews  v.  Andrews,  12  Ind.  34S,  2  Ames  Eq.  Jur.  245. 

As  to  plaintiff's  negligence,  see  ante,  §  856:  as  to  his  laches,  see  ante,  §  419; 
Citizens'  Nat.  Bank  v.  Judy,  146  Ind.  322,  43  N.  E.  259;  Bloomer  v.  Spittle, 
L.  R.  13  Eq.  427,  2  Ames  Eq.  Jur.  309.  3  Keener  398;  Sable  v.  Maloney.  48 
Wis.  331,  4  N.  W.  479,  2  Ames  Eq.  Jur.   310. 

As  to  the  defense  of  bona  fide  purchase,  see  ante,  §  776:  Garrard  v. 
Frankel,  30  Beav.  445,  3  Keener  261  ;  Citizens'  Nat.  Bank  v.  Judy,  146  Ind. 
322.  43  N.  E.  259.  3  Keener  433:  Cole  v.  Fickett,  95  Me.  205,  49  Atl.  1066, 
2  Ames  Eq.  Jur.  178.  As  to  priority  between  the  equity  for  a  reformation 
and  the  liens  of  subsequent  attaching  and  judgment  creditors  of  the  defendant, 
see  ante,  §§  721-724. 

In  states  where  a  married  tvoman's  deed  must  be  executed  with  certain 
formalities,  no  reformation  on  account  of  defects  arising  from  non-compliance 
with  statutory  provisions  will  be  decreed,  since  it  would  not  only  contravene 
the  policy  of  the  law  but  require  her  to  make  a  contract  which  she  has  not 
made:  Hamar  v.  IMedsker.  60  Ind.  413.  2  Ames  Eq.  Jur.  228.  See.  also,  Gebb 
V.  Rose,  40  Md.  387,  3  Keener  425,    A  mere  mistaken  description  in  her  executed 


§  1377  EQUITY   JUKLSPKUDKXCE.  860 

to  protect  or  maintain  equitable  primary  estates,  interests,  or 
rights;  where,  however,  the  estate,  interest,  or  right  is  legal,  the 
jurisdiction  always  exist.s,  but  its  exercise  depends  upon  the  ade- 
quacy of  the  legal  remedies,— a  party  being  left  to  his  affirmative 
or  defensive  remedy  at  law,  where  full  and  complete  justice  -can 
thereby  be  done.^  The  occasions  giving  rise  to  the  exercise  of  this 
jui'isdiction  are  mistake,  fraud,  and  other  instances  where  enforc- 
ing instruments  or  agreements  would  be  inequitable  or  unjust.- 
A  doubt  was  formerly  entertained  as  to  whether  a  court  of  equity 
ought  to  exercise  its  jurisdiction  to  order  instruments  absolute!}^ 
void  at  law,  and  not  merely  voidable,  to  be  delivered  up  and  can- 
celed, since  the  legal  remedy  of  a  party  was  adequate  and  com- 
plete, and  no  case  was  presented  for  equitable  interference;  but  it 
is  now  well  settled  that  jurisdiction  will  be  exercised  in  such  cases,^ 
except  where  the  invalidity  of  the  instrument  is  apparent  on  its 
face.* 


c(jnveyanee  may,  however,  by  the  preponderance  of  authority  be  eorrectetl 
against  her:  Hamar  v.  Medsker,  GO  Ind.  413,  2  Ames  Eq.  Jur.  228;  and  in 
some  states  where  there  are  no  disabilities  upon  a  married  woman's  power 
to  contract  and  convey,  an  instrument  may  be  corrected  as  against  her  to 
the  same  extent  as  against  any  other  person:  C'hristman  v.  Colbert,  3.3  ^linn. 
509,  24  N.  W.  301,  3  Keener,  428. 

'See  ante,  §§  911-914.  In  the  exercise  of  the  remedy  of  cancellation  instru- 
ments are  almost  necessarily  directed  to  be  "delivered  uj)."  "Delivery  up,"  un- 
der these  circumstances,  can  hardly  be  called  a  distinct  remedy. 

-  The  various  rules  as  to  when  jurisdiction  will  be  exercised,  and  the  evi- 
dence necessary,  in  cases  of  fraud  and  mistake,  have  already  been  discussed, 
and  the  reader  is  referred  to  the  sections  on  those  subjects.  As  to  cancellation 
for  mistake,  see  ante,  §  870. 

■'Forged  instruments:  see  Sliaron  v.  Hill,  20  Fed.  1,  30  Fed.  337,  2  Ames 
Kq.  Jur.    161. 

SSinipson  v.  Lord  Howden,  3  Mylue  &  C.  97,  2  Ames  Eq.  Jur.  124:  Peirsoll 
v.  Elliott,  6  Pet.  95,  98,  Shep.  141;  Town  of  Venice  v.  Woodruff,  62  N.  Y. 
4()2,  20  Am.  Rep.  495.  2  Ames  Eq.  Jur.   133,  H.  &  B.  794,  Shep.  244. 

Subject  to  this  limitation,  the  remedy  at  law  is  usualh'  inadequate,  and 
the  jurisdiction  of  equity  exercised  as  a  matter  of  course.  (1)  where  the 
invalid  instrument  creates  a  cloud  on  title  to  land:  See  post,  §§  1398,  1399. 
(2)  Where  the  instrument  is  negotiable  and  not  yet  mature,  because  in  such 
cases  if  the  present  unlawful  holder,  although  the  legal  defense  to  an  action 
by  him  would  be  perfect,  should  transfer  the  security  to  a  bona  fide  purchaser, 
such  legal  defense  would  be  cut  off.  In  this  case,  it  is  usual  to  enjoin  tlie 
transfer  of  the  instrument,  as  well  as  to  order  its  surrender:  Ante,  §  1340; 
Smith  V.  Aj'kAvell,  3  Atk.  566,  2  Ames  Eq.  Jur.   132. 

Where,  however,  the  instrument  against  which  the  complainant  claims  a 
flefense  does  not  fall  within  either  of  these  classes — ^vhere  it  is  not  a  cloud 
u])on  the  title  to  land,  and  where  there  is  no  danger  that  the  defense  will  be 
lost  by  the  transfer  of  the  instrument  to  a  bona  fide  purchaser. — there  is 
the  sharpest  conflict  among  the  authorities  as  to  the  propriety  of  the  remedy 
of    cancellation.      On    the    one    hand    it    is    held,    in    a    considerable    group    of 


S^61  EKFORMATIOX     AXU    CANCELLATION'.  §  1377 

eases,  that  the  clanger  of  loss  of  evidence  in  support  of  the  defense,  through 
llie  intentional  delay  of  the  holder  of  the  instrument  in  bringing  suit  thereon,  is 
sullicient  to  warrant  the  exercise  of  the  jurisdiction:  Martin  v.  Graves,  a 
AUen,  GOl,  2  Ames  Eq.  Jur.  137;  Commercial  Ins.  Co.  v.  McLoon,  14  Allen, 
a,')!,  o  Keener  322  (insurance  policy);  Fuller  v.  Percival,  12G  Mass.  381,  2 
Ames  Eq.  Jur.  Ill,  3  Keener  483  (promissory  note,  overdue,  obtained  l)y 
fraud)  ;  Sharon  v.  Hill,  20  Fed.  1,  2  Ames  Eq.  Jur.  Kil  (forged  contract  of 
marriage)  ;  (for  further  instances  see  ante,  §  914)  ;  and  this,  too,  even  wlicrc 
tlie  liolder  of  the  instrument  has  already  brought  suit  at  law  upon  it,  sine- 
tlie  ])rosecution  of  such  suit  is  within  liis  control,  and  may  be  delayed  or 
withdrawn,  and  anotlier  brought  at  a  time  when  an  unconscionable  advantage 
may  be  taken:  Buxton  v.  Broadway,  45  Conn.  540,  2  Ames  Eq.  Jur.  115  ("on 
til  is  question  we  can  consider  only  what  means  of  redress  the  law  itself  fur- 
nishes the  petitioner,  and  not  what  he  may  chance  to  get  through  the  indulgence 
of  the  respondent")  :  Andrews  v.  Frierson,  134  Ala.  62G,  33  South.  G,  1  Scott 
lOS.  But  on  the  v\-lioIe.  the  majority  of  the  cases  repudiate  the  idea  that  the 
mere  danger  of  loss  of  evidence  to  support  a  future  defense  is  a  sufficient 
gi-ound  for  immediate  relief  in  equity  against  the  instrument,  unless  some 
special  circumstances  are  shown  whicli  render  svich  delay  more  than  ordinaril.v 
lia/.nrdous:  in  many  of  the  cases,  the  fact  that  the  testimony  of  witnesses  may 
I)e  perpetuated  under  statutory  provisions  being  assigned  as  a  reason  for 
holding  that  there  is  no  danger  of  loss  of  evidence:  See,  in  general,  Globe 
Mut.  L.  Ins.  Co.  V.  Reals,  70  X.  Y.  202,  3  Keener  485  (insurance  policy;  suit 
to  cancel  for  fraud  brought  after  loss)  :  Erickson  v.  First  Nat.  Bank,  44  Xel). 
022,  48  Am.  St.  Rep.  753,  G2  X.  W.  1078,  38  L.  R.  A.  377  (altered  note)  : 
Allerfon  v.  Belden,  49  X.  Y.  373,  2  Ames  Eq.  Jur.  113  (unauthorized  municipal 
bonds)  :  for  further  instances,  see  ante,  §  914,  but  see,  for  cases  where  complain- 
ant IS  exposed  to  a  multiplicity  of  suits,  ante,  §  261,  note.  A  fortiori  the  court 
refuses  to  interfere  where  an  action  at  law  has  already  been  begun  upon  the 
instrument,  and  the  defense  may  be  interposed  therein:  Grand  C'luite  v.  Wine- 
gar,  15  Wall.  373,  21  L.  ed.  174,  2  Ames  Eq.  Jur.  116  (unauthorized  municipal 
l>oiids)  ;  Insurance  Co.  v.  Bailey,  13  Wall.  616,  20  L.  ed.  501,  3  Keener  474;  but 
here.  too.  exceptional  circumstances  may  render  a  defense  in  the  actions  already 
brought  an  inadequate  protection;  as  where  several  separate  suits  have  been 
brought  against  complainant  by  persons  claiming  to  be  assignees  of  an  instrur.n'r.t 
executed  by  him,  and  his  defense  is  fraud  in  obtaining  the  instrument;  intpr- 
])leader  cannot  be  had,  since  complainant  denies  any  liability  on  the  instiiuuont  : 
and  if  left  to  his  defense  at  law,  he  must  try  several  actions  to  secur  ■  a 
single   right:      McHenry  v.   Hazard,   45  X.   Y.   580,  2   Ames   Eq.   Jur.    118. 

In  another  group  of  cases,  in  many  of  Avhich  the  complainant  is  a  vendee 
of  land  or  chattels,  the  question  of  inadequacy  of  the  legal  remedy  concerns, 
not  a  legal  drfewie  in  a  future  action  against  the  complainant,  but  the  alterna- 
tive legal  i-emedy  that  may  be  pursiied  by  him,  as  for  recoveiy  of  the  purchase 
price,  of  damages  for  deceit,  and  the  like.  This  question,  in  the  main,  depends 
upon  the  special  circumstances  of  the  individual  case:  See  Boyce  v.  Gnindy.  3 
J'et.  210.  7  L.  ed.  655,  Shep.  19  (rescission  at  suit  of  defrauded  vendee  of 
land:  explained  in  Buzard  v.  Houston,  119  U.  S.  347.  7  Sup.  Ct.  249.  30  L. 
ed.  451,  3  Keener  487). 

For  the  defense  of  rnfificnfion  in  cases  of  cancellation,  see  ante.  §§  897.  916. 
964:  for  the  necessity  of  reaforation  of  the  defendant  to  the  condition  in  which 
he  stood  before  the  transaction,  see  §  910,  and  note;  also,  §§  391,  937,  946. 


§  1378  EQUITY  JUIUSPRUDENCE.  i^^ 


FOURTH  GROUP. 

REMEDIES  BY  WHICH  ESTATES,  INTERESTS,  AND  PRIMA- 
RY RIGHTS,  EITHER  LEGAL  OR  EQUITABLE,  ARE  DIRECT- 
LY DECLARED,  ESTABLISHED,  OR  RECOVERED,  OR  THE 
ENJOYMENT  THEREOF  FULLY  RESTORED. 


CHAPTER    FIRST. 

SUITS  BY  WHICH  PURELY  LEGAL  ESTATES  ARE  ESTAB- 
LISHED, AND  THE  ENJOYMENT  THEREOF  RECOVERED: 
NAMELY,  ASSIGNMENT  OP  DOWER,  ESTABLISHMENT  OF 
DISPUTED  BOUNDARIES,  PARTITION  OF  LAND,  AND  OF 
PERSONAL  PROPERTY. 

ANALYSIS. 

§   1378.  (leneral   nature   and   object   of   tliis   group. 

§   1379.  Xature  and  object  of  the  first  class. 

§§   1380-1383.  Assignment   of   dower. 

§   1380.  Legal  remedies. 

§   1381.  Origin   and  grounds   of  the  equitable  jurisdiction. 

§   1382.  The   jurisdiction    now   concurrent. 

§  1383.  Exclusive  jvirisdiction  over  dower  in  equitable  estates. 

§   1384.  Establishment  of  disputed  boundaries. 

§   1385.  The  same;  equitable  incidents  and  grounds. 

§§   1380-1390.  Partition  of  lands. 

§   138G.  Common  law  remedy. 

§   1387.  Equitable   jurisdiction    and   remedies. 

§   1388.  The  title  of  the  plaintiff. 

^   1389.  Mode  of  partition. 

§   1390.  Partition  by  means  of  a  sale. 

§  1391.  Partition  of  personal  property. 

§   1392.  The  same;  issue  of  title. 

§  1378.     General    Nature   and    Object   of   This   Group.— All   the 

remedies  belonging-  to  this  group  have  one  most  important  dis- 
tinctive feature  in  common,  which  is  apparent  npon  even  a  slight 
examination.  In  all  of  them  the  estate  or  interest  of  the  com- 
plaining party,  whether  it  be  legal  or  equitable,  is  directly 
established  or  recovered,  or  the  enjoyment  thereof  is  directly  re- 
stored. These  remedies  are  not.  therefore,  provisional  or  auxiliary, 
but  they  are,  for  the  purposes  of  the  complaining  party,  as  truly 


^63  ASSIGNMENT   OF   DOWER.  f  1380 

final  or  ultimate  reliefs  as  is  the  judgment  in  an  action  of  eject- 
ment or  of  replevin.^  The  estate,  interest,  or  primary  right  to 
be  established  or  recovered,  or  fully  enjoyed  by  their  means,  ma;^ 
be  either  legal  or  equitable ;  and  when  it  is  equitable,  the  establish- 
ment may  consist  in  clothing  the  plaintiff  with  the  legal  estate.'^ 
The  remedies  composing  this  group  are  separated,  by  a  natural  line 
of  division,  into  tJiree  general  classes,  namely:  1.  Suits  by  which 
purely  legal  estates  are  established,  and  the  enjoyment  thereof 
recovered ;  2.  Suits  by  which  some  general  right,  either  legal  or 
equitable,  is  established;  and  3.  Suits  by  which  some  particular  es- 
tate  or  interest,   either   legal   or   equitable,   is   established. 

§  1379.  Nature  and  Object  of  the  First  Class. — Since  the  par- 
ticular cases  belonging  to  this  class  are  primarily  adapted  to  purely 
legal  interests,  the  common  law  gives  similar  relief  by  means  of 
appropriate  legal  actions.  The  jurisdiction  of  equity  Avas  based 
wholly  upon  the  superiority  of  the  equitable  methods  and  pro- 
cedure ;  and  while  the  equitable  jurisdiction  in  cases  of  dower 
and  partition  has  become  so  established  that  it  has  almost  dis- 
placed the  legal  remedies,  that  of  settling  disputed  boundaries 
still  requires  the  presence  of  some  special  equitable  incident  or 
circumstance.^  I  purpose  to  state  the  general  doctrines  and  rules 
which  regulate  the  jurisdiction  to  grant  these  remedies,  and  de- 
termine the  circumstances  under  which  and  the  parties  between 
whom  it  will  be  exercised. 

§  1380.    Assignment    of    Dovrer — Legal    Remedies. — The    right 

'  This  is  manifestly  so  in  "assignment  of  dower,"  "settlement  of  disputed 
boundaries,"  and  "partition  of  land,"  since  in  each  of  these  instances  the  plain- 
tiff establishes  his  individual  right  to  and  obtains  sole  possession  of  a  Specific 
tract  of  land,  and  in  "partition  of  personal  property,"  he  procures  the  same 
with  respect  to  specific  chattels.  The  statement  is  no  less  true  of  the  other 
suits  included  within  this  group.  In  a  suit  to  construe  a  will,  estates  in 
specific  property  are  directly  established;  in  suits  to  quiet  title,  the  very  object 
of  the  judgment  is  to  declare  and  establish  the  plaintiff's  legal  or  equitable 
estate  in  some  specific  property,  and  perhaps  to  convert  his  equitable  estate 
into  a  legal  one.  Even  in  suits  to  remove  a  cloud  from  title,  although  the 
relief  is  often  obtained  by  means  of  a  cancellation,  yet  from  the  nature  of 
the  whole  proceeding,  the  plaintiff's  estate  is  thereby  established,  and  he  is 
left  in  its  full  enjoyment.  In  strict  foreclosure  of  mortgages  or  pledges,  and 
in  redemption  of  mortgages  or  pledges,  the  plaintiff  plainly  establishes  his 
estate  in.  and  secures  his  possession  of,  the  specific  land  or  chattels,  free  from 
any  claim  of  the  defendant.  However  much  these  remedies  may  differ  in  aj)- 
])earance,  they  all  have  this  same  essential  element  which  brings  them  within 
the  same  group. 

"As  in  some  statutorv-  suits  to  quiet  litle,  and  some  suits  to  remove  a  cloud 
from   title. 

^  Under  ail  ordinary  circumstances,  the  action  of  ejectment  is  an  adequate 
remedy  by  which  to  settle  disputed  claims  to  legal  titles  and  estates. 


§  1383  EQUITY    JL'RISPKL'DENCE.  864 

known  as  the  wife's  right  of  dower  was  purely  legal,  and  was 
asserted  at  law  through  the  writ  of  right  of  dower,  and  the  writ 
of  dower  unde  nihil  habet,  both  of  which  were  in  the  nature 
of  real  actions.  As  early  as  the  reign  of  Queen  Elizabeth,  courts 
of  equity  began  to  assume  jurisdiction  over  cases  of  dower,  but 
only  tentatively,  and  as  ancillary  to  proceedings  at  law.^  This 
jurisdiction,  originally  narrow  and  auxiliary,  has,  by  the  course 
of  decision,  and  on  familiar  equitable  principles,  been  expanded 
to  the  extent  of  affording  complete  relief  between  the  parties. 

§  1381.  Origin  and  Grounds  of  the  Equitable  Jurisdiction. — 
E(iuitable  interposition  in  cases  of  dower  was  at  first  invoked 
for  the  removal  of  impediments  in  the  way  of  recovery  at  law. 
As  the  title  deeds  to  real  estate  were  held  by  heirs,  devisees,  or 
trustees,  it  would  be  important,  and  even  necessary,  for  the  widow, 
in  the  event  of  a  contest  of  her  dower,  to  resort  to  equity,  for 
the  purpose  of  ascertaining  the  lands  of  which  her  husband  had 
been  seised  during  marriage.  To  accomplish  this  purpose,  a  bill 
of  discovery  would  be  entertained  in  equity;  and  where  the  land 
of  the  husband  was  an  undivided  interest  in  a  greater  portion, 
equity  would  decree  a  partition  in  aid  of  the  assignment  to  the 
widow  of  her  dower. ^  This  jurisdiction  was,  in  its  earlier  stages, 
strictly  auxiliary;  and  if  no  obstacle  in  the  way  of  recognition 
and  assignment  of  dower  at  law  was  disclosed,  the  equitable  pro- 
ceedings would  be  arrested."  The  equitable  jurisdiction,  having 
once  attached,  was  not  slow  in  maturing  so  as  to  confer  full  re- 
lief. When  the  widow  came  into  equity  for  a  discovery  respecting 
tlie  title  deeds  to  her  husband's  estate,  which  were  in  the  hands 
of  the  heir,  it  was  held  that  she  should  have  complete  relief." 
If  her  title  to  dower  was  denied,  it  woidd  be  incumbent  upon 
her  to  establish  such  title  at  law.  Equity  would,  for  that  purpose, 
retain  the  bill  for  a  reasonable  time,  and  upon  the  determination 
of  the  issue  at  law  in  the  widow's  favor,  would  proceed  to  ad- 
minister final    relief.* 

§1382.  The  Jurisdiction  Now  Concurrent. — Although  it  was 
thus,  at  one  time,  supposed  that  the  jurisdiction  of  equity  was  an- 
cillary, and  could   not  attach   in  the  absence  of  impediments  at 

MVild  V.  Wells   1   Dick.  3;   Toth.   82. 

^Moor  V.  Black,  Cas.  t.  Talb.   126. 

=  Sliute  V.  Shute,  Prec.   Ch.   111. 

'Curtis  V.  Curtis,  2  Brown  Ch.  620,  631,  632. 

*  Curtis  V.  Curtis,  supra.  And  assuming  the  widow's  title  to  be  established 
or  conceded,  equity  will  not  only  assist  her  by  way  of  discovery  and  assignment,  but 
will  decree  her  a  due  share  of  the  mesne  profits,  and  this,  not  from  the  time  of 
the  demand  merely,  but  from  the  time  when  her  title  accrued:  Dormer  v. 
Je^ortescue,  3  Atk.   124,  130,  1  Keener  523. 


865  ASSIGNMEXT    OF    DOWEK.  §  1383 

law,  it  is  uow  well  settled  that  courts  of  equity  have  concurrent 
jurisdiction  in  cases  of  legal  dower,  or  dower  in  legal  estates.^ 
The  advantages  of  the  equitable  procedure  are  obvious.  An  out- 
standing term  could  be  removed  and  satisfied;-  a  partition  in  the 
case  of  undivided  interests  could  be  decreed,  and  an  account  could 
he  taken  r  fraudulent  conveyances  could  be  canceled;*  and  an- 
tagonistic claims  to  the  subject-matter  could  be  determined  without 
multiplicity  of  suits.^  Equity  will  also  award  damages  which  could 
not  be  recovered  at  law  on  an  application  for  dower.*' 

§  1383.  Exclusive  Jurisdiction  over  Dower  in  Equitable  Estates. 
— In  England  since  the  statute  of  3  and  4  William  IV./  and  in  the 
United  States  from  an  early  day,  equity  has  assumed  an  exclusive 
jurisdiction  over  claims  for  dower  in  equitable  estates.  Where 
the  husband's  estate  was  an  equity  of  redemption,  the  widow  may 
proceed  against  the  mortgagee  by  a  bill  in  equity  to  redeem.^  .  .  . 
If  the  husband  should  die  seised  of  land  on  which  a  part  of  the 
purchase-inoney  was  due,  the  widow  may  resort  to  equity  for 
a  sale  of  the  land  in  satisfaction  of  the  unpaid  balance,  and  for 
her  dower  in  the  surplus.^  On  the  conversion  of  the  husband's 
estate  into  money,  equity  will  aAvard  to  the  widow  her  proportion- 
ate share.'*  And  where  the  husband  has  sought,  by  fraudulent 
convcA'ances,  to  defeat  the  wife's  dower,  equity  will,  on  her  ap- 
plication, grant  appropriate  relief.^  The  widow's  right  of  dower, 
Avhile  3'et  unmeasured  and  unassigned,  may  be  transferred  by  her, 
or  reached  by  her  judgment  creditors,  and  her  voluntary  trans- 
feree, or  the  receiver  appointed  in  aid  of  the  judgment  creditor, 
may  maintain  a  suit  in  equity  to  have  the  dower  assigned  to  him." 
The  assignment  of  dower  is  usually  effected  b}'  a  reference  to  a  mas- 
ter  and    a    commission,    and   the    share    is   set    out    by    metes    and 

^Mundy  v.  Mundy,  2  Ves.  122;  Herbert  v.  Wren,  7  Crancli  370,  Shep.  132; 
iJadgley  v.  Bruce,  4  Paige,  98. 

-Dormer  v.   Fortescue,  3  Atk.   124,   130,   1   Keener  .'523. 

'  Herbert  v.  ^Vren,  7  Cranch,  370,  Shep.  132. 

*8\vaine  v.  Ferine,  5  Johns.   Ch.  482;   9  Am.  Dec.   318. 

^Goodbuni  v.  Stevens,  1  Md.  Ch,  420. 

"Curtis  V.  Curtis  2  Brown  Ch.  620,  632;  Dormer  v.  Fortescue,  3  Atk.  124, 
130,  1  Keener  523. 

>  Chapter   10;"). 

=  Gibson  v.   Crehore,  3  Pick.   475;    Farwell  v.  Cotting,  9  Allen  211. 

*  Thompson  v.  Cochran,  7  Humph.  72;  46  Am.  Dec.  68.       * 

*Higbie  v.  VVestlake,   14  N.  Y.  281. 

^vSwaine  v.  Ferine,  5  Johns.  Ch.  482,  9  Am.  Dec.  318;  Petty  v.  Petty,  4  B. 
Mon.  215,  39  Am.  Dec.  501. 

"McMahon  v.  Gray,  150  Mass.  289,  15  Am.  St.  Rep.  202,  22  N.  E.  923,  5  L. 
R.  A.  748  (creditors'  bill)  ;  Payne  v.  Becker,  87  N.  Y,  153  (receiver  appointed 
in  aid  of  an  execution)  ;  Strong  v.  Clem,  12  Ind.  37;  74  Am.  Dec.  200  (trans- 
feree; . 

5^ 


j   lobO  EQUITY    JURISPRUDENCE.  866 

bounds.  AVhere  an  account  is  needed,  it  may  be  taken  by  means 
of  a  similar  reference.  In  many  of  our  states  summary  proceed- 
ings have  been  provided  by  statute  for  the  assignment  of  dower, 
especially  where  the   widow's  ri.uht  thereto  is  not  contested. 

§  1384.  Establishment  of  Disputed  Boundaries. — Where  the 
boundaries  between  two  adjacent  parcels  of  land,  even  when  held 
by  their  respective  owners  under  purely  legal  titles,  have  become 
confused  or  obscure,  equity  has,  from  an  early  period,  exercised 
a  jurisdiction  to  settle  them.^  Whether  this  jurisdiction  originated 
in  the  consent  of  the  parties,  and  proceeded  by  analogy  to  the 
writs  de  rationalibus  divisis  and  de  perambulatione  facienda  lused 
at  law,'-  or  arose  in  avoidance  of  a  midtiplicity  of  suits, ^  has  been 
discussed;  but  the  determination  of  the  question  remains  uncertain 
and  conjectural.  The  mere  fact,  however,  that  certain  boundaries 
are  in  controversy  is  not  of  itself  sufficient  to  authorize  the  inter- 
ference of  equity ;  and  upon  such  a  showing,  the  parties  would 
be  left  to  their  rights  and  remedies  at  law.  Courts  of  equity 
will  not  interpose  to  ascertain  boundaries,  unless,  in  addition  to 
a  naked  confusion  of  the  controverted  boundaries,  there  is  sug- 
gested some  peculiar  equity,  which  has  arisen  from  the  conduct, 
situation,    or   relations    of   the    parties.*  \ 

§  1385,  Equitable  Incidents  and  Grounds. — The  fraud  or  neg- 
lect of  duty  of  the  party  against  whom  relief  is  sought  by  way 
of  establishment  of  boundaries  will  afford  a  sufficient  ground  for 
equitable  interference.^  And  where  a  settlement  of  the  boundaries 
in  dispute  cannot  be  had  at  law  without  a  multiplicity  of  suits, 
relief  may  be  obtained  in  equity.-  It  may  happen  that  such  a  re- 
lalion  exists  between  the  parties  as  to  make  it  incumbent  upon 
one  of  them  to  preserve  the  boundaries.  Such  would  be  the  ease 
where  one  of  the  parties  was  a  tenant  or  a  copyholder;  and  in 
all  such  cases,  equity  will  entertain  the  suit  of  the  aggrieved  party — 
as  of  a  landlord — to  compel  the  defendant — as  in  the  example,  a 
tenant— to  preserve  the  boundaries  from  confusion.''  ...  It  is 
necessary  for  the   complainant   to   show  that   some   portion  of  the 

MVake.  V.  Conyers,  1  Eden  .331,  2  Lead.  Cas.  Eq.,  4th  Am.  ed.  8.50,  853,  860, 

=  S])eer  v.  Crawter.  2  Mer.  410,  417. 

'■'  Wake  V.  Conyers,  supra. 

*  Wake  V.  Conyers,  supra ;  Asliurst  v.  ]\IcKenzie,  92  Ala.  484,  9  South.  262, 
1  Keener  381 ;  Hinnboldt  County  v.  Lander  County,  22  Xev.  248,  58  Am.  St. 
Kep.  7.50,  38  Pae.  .578.  26  L.  R.  A.  749  (dispute  between  two  counties)  ;  King 
V.  Brioliam.  23  Ores.  202.  31  Pae.  601,  18  L.  R.  A.  361  (statutoiy  jurisdiction 
in  equity). 

M4uice  V.   Barr.   130  Ala.  570.  30  South.  .563:   2  .Tones  Eq.  470. 

-Wake  V.  Con^'ers.  supra;  Beatty  v.  Dixon.  56  Cal.  622.     See  ante.  §  261.  note. 

=*  Aston  V.  Lord  Exeter.  6  Ves.  288;  see  Ashurst  v.  2>P'lenzie,  92  Ala.  484, 
&  Soutli.  262,  1   Keener  381. 


867  PARTITION    OF    LANDS.  §  1387 

lands,  in  respect  of  which  the  relief  of  establishing  their  boundaries 
is  sought,  is  in  the  possession  of  the  defendant.'* 

§  1386.  Partition  of  Lands — Common-law  Remedy. — At  com- 
mon law,  the  writ  of  partition  lay  only  in  case  of  lands  held  in 
coparcenary.^  The  remedy  was  afterwards  extended  by  statute 
to  joint  tenancies  and  tenancies  in  conniion.-  Where  the  tenure 
was  copyhold,  partition  might  be  had  in  the  lord's  court  by  a 
plaint  in  the  nature  of  a  writ  of  partition.  As  the  plaint  and  the 
writ  have  both  been  abolished  by  statute,^  this  jurisdiction  of 
equity  is  now,  in  the  absence  of  statutory  provision,  exclusive. 
The  operation  of  the  common-law  remedy,  even  after  its  exten- 
sion to  joint  tenancies  and  tenancies  in  common,  was  imperfect 
and  narrow.  The  writ  of  partition  lay  only  against  the  tenant 
in  possession^  and  was  incompetent  to  reach  the  remainderman  or 
the  reversioner.  As  the  judgment  at  law  proceeded  according  to 
the  titles  proved,  it  was  necessary  for  the  plaintiff  to  show  the 
title  of  the  defendant  as  well  as  his  own.  And  as  partition  at 
law  was  made  by  the  sheriff'  by  actual  division,  it  might  happen 
that,  where  the  undivided  interests  were  incapable  of  exact  ap- 
portionment, the  judgment  of  the  court  would  be  powerless  to 
compensate  the  inequalities. 

§  1387.  Equitable  Jurisdiction  and  Remedies. — These  difficnlties, 
illustrating  the  inadequacy  of  the  legal  remedy,  gave  rise  to  the 
equitable  interference.  As  early  as  the  reign  of  Elizabeth,  partition 
became  a  matter  of  equitable  cognizance  ;^  and  noAv  the  jurisdic- 
tion is  established  as  of  right  in  England  and  in  the  United  States.^ 
The  remedy  in  equity  is  not  confined  to  the  tenants  in  possession, 
but  extends  to  all  persons  interested,  w^hether  presently  or  in 
expectancy;  and  remaindermen,  reversioners,  infants,  and  persons 
not  in  esse  may  be  bound  by  the  decree.^ 

^Att'y-Gen.  v.  Stephens,  6  De  Gex,  M.  &  G.  111. 

^The  reason  given  was,  that  as  tenancy  in  coparcenary  arose  by  operation 
of  law,  it  was  only  proper  that  the  law  should  afl'ord  the  means  of  severance. 

'31  Henry  VIU.,  c.  1;   32  Henry  Vlll.,  c.  32. 

•'3  &  4  W'm.  IV.,  c.  27. 

'  1    I'onbJanque's  Equity,  b.  1,  c.  1,  sec.  3,  note  f ;  Speke  v.  Walrond,  Toth.  155. 

-Agar  V.  Fairfax,  17  Ves.  533;  2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  865,  880,  894; 
Hill  V.  Reno,  112  111.  154,  54  Am.  Rep.  222;  Rutherford  v.  Jones,  14  Ga.  521, 
60  Am.  Dec.  655. 

'  Ciaskell  v.  Gaskell,  6  Sim.  643.  But  a  future  estate  cannot  be  partitioned  at 
the  suit  of  a  eo-owmer  thereof;  Baldwin  v.  Aldrichs,  34  Vt.  532.  80  Am.  Dec. 
695;  Savage  v.  Savage,  19  Oreg.  112,  20  Am.  St.  Rep.  795,  23  Pac.  890;  and 
by  the  weight  of  authority  compulsory  partition  cannot  be  had  against  the 
holder  of  a  future  conditional  interest:  Aydlett  v.  Pendleton,  111  N.  C.  28, 
16  S.  E.  8,  32  Am.  St.  Rep.  776,  and  note,  Only  a  parly  having  actual  or  con- 
structive possession  can   compel   partition:      Nichols  v.  Nichols,  28  Vt.   230,  67 


^  1389  E(4U1TY    JLiasFRLDEXCE.  868 

§1388.  The  Title  of  the  Plaintiff.— The  difficulty  under  which 
the  coinpiaiuaut  labored  at  law  iu  proving  the  title  as  well  of 
the  defendant  as  of  himself  is,  in  equity,  obviated  by  a  discovery, 
and  if  need  be  by  a  reference  to  the  master.  The  complainant 
must  show  title  in  himself,  and  such  a  title  as  will  establish 
his  right,  as  against  the  defendant,  to  a  partition.^  Where  the 
ecunplainant's  legal  title  is  disputed,  courts  of  equity  decline  the 
jurisdiction  to  try  this  question;  but,  in  analogy  to  the  case  of 
dower,  they  will  retain  the  bill  for  a  reasonable  time,  until  the 
issue  of  title  has  been  determined  at  law."^  If  the  disputed  titles 
are  equitable,  courts  of  equity  will  exercise  jurisdiction  to  settle 
them,  and  Avill  then  grant  final  relief  by  way  of  partition,  under 
the  same  bill.-'  Where  the  subject-matter  of  the  suit  is  an  equi- 
table estate*  or  an  incorporeal  hereditament,^  a  partition  may  be 
had  in   equity. 

§  1389.  Mode  of  Partition — Pecuniary  Compensation. — In  the 
original  jurisdiction  of  equity  the  partition  was  elTected  by  means 

Am.  Dec.  G99,  and  note.  A  pending-  lease  for  years  is  no  obstacle  to  a  pai-tition 
lietween  the  owners  of  the  fee:  Willard  v.  Willard,  145  U.  S.  116,  12  Sup. 
Ct.  818,  ?)(')  L.  ed.  644.  The  grantee  of  a  co-tenant  acquires  all  the  rights  of 
his  grantor:  :\Iee  v.  Benedict,  08  Mich.  260,  39  Am.  St.  Rep.  543,  57  N.  W. 
175,  22  L.  R.  A.  641.  A  co-tenant  who  has  mortgaged  his  interest  may  have 
partition:      Green  v.  Arnold,   11   R.  1.  364,  23  Am.  Rep.  466. 

In  general,  all  the  tenants  in  common  or  joint  tenants  of  the  estate  in  the 
land  to  be  partititmed  should  be  made  parties,  either  plaintiiT  or  defendant: 
see  Gates  v.  Salmon,  35  Cal.  588,  95  Am.  Dec.  139  (grantee).  But  the  mort- 
gagees and  judgment  creditors  of  tenants  in  common  are  not  necessary  parties : 
Harwood  v.  Kirbv,  1  Paige  469;  though  if  a  mortgagee's  interests  require  that 
lie  be  joined,  he  may  be  made  a  party:  Whitton  v.  Whitton,  38  X.  H.  127,  75 
Am.  Dec.  163.  As  to  the  mode  of  binding  the  estates  of  persons  not  in  being 
w  lio  may  become  co-owners,  see  ]\Iead  v.  Mitchell,  17  X.  Y.  210,  72  Am.  Dec.  455. 

'Agar  V.   Fairfax,   17  Yes.  533.  su])ra. 

-  Bearden  v.  Benner,  120  Fed.  690.  As  a  general  rule,  the  i^laintiff  could 
Jiot  have  partition  of  property  held  adversely  to  him  bj'  his  co-tenant:  Froy 
V.  Willougldjy,  63  Fed.  865,  27  U.  S.  App.  417,  11  C.  C.  A.  463;  but  statutes 
conferring  legal  and  equitable  powers  iii)on  the  same  court  have  generallj'  been 
construed  to  permit  the  adjusting  of  all  the  conflicting  claims  in  one  action: 
Weston  v.  Stoddard  137  N.  Y.  119,  33  Am.  St.  Rep.  697,  33  X.  E.  62,  20 
L.  R.  A.  624;  and  statutes  often  explicitly  authorize  the  determination  of 
tpiestions  of  title  by  the  court  of  equity:  see  Pillow  v.  Southwest,  etc.,  Co.,  92 
A'a.   144,  53   Am.   St.  Rep.   804,  23  S.  E.  32. 

■'■  \'reeland  v.  Yreeland,  49  X.  J.  Eq.  322,  24  Atl.  551. 

*  Aspen  M.  &  S.  Co.  v.  Pucker,  28  Fed.  220. 

'  Equity,  by  reason  of  the  flexibility  of  its  decrees,  may  partition  the  right 
to  the  use  of  water  in  a  flowing  stream :  Warren  v.  Westbrook  Mfg.  Co.,  88  Me. 
58,  51  Am.  St.  Rep.  372,  33  Atl.  665.  35  L.  R.  A.  388;  but  the  actual  partition 
of  oil  and  gas  among  co-owners  who  did  not  own  the  surface  was  beyond  the 
power  of  the  court,  in  Hall  v.  Vernon,  47  W.  Va.  295,  81  Am.  St.  Rep.  791,  34  S. 
E.  764. 


809  PART'TIOX    OF    LANDS.  '  §  1390 

of  mutual  conveyances;  and  where  the  land  was  incapable  of 
i^xact  or  fair  division,  the  court  had  power  to  compensate  for  the 
inetiuality  by  awarding  what  was  known  as  "owelty  of  partition," 
being  a  pecuniary  compensation,  or  a  charge  upon  the  land  by 
way  of  rent,  servitude,  or  easement.^  And  if  one  of  the  joint  own- 
ers or  owners  in  common  has  received  more  than  his  share  of 
the  rents  and  profits,  the  court  will  direct  an  account  for  the 
purpose  of  decreeing  a  reimbursement."  And  if  it  should  appear 
that  one  of  the  parties  had  made  improvements  on  the  land  of 
wliich  partition  is  sought,  he  will  be  awarded  suitable  compensa- 
tion.■'  The  inconvenience  or  difficulty  attending  the  partition  is  no 
ground  for  refusing  the  relief."* 

§  1390.  Partition  by  Means  of  a  Sale. — On  account  of  the  diffi- 
cultly of  making  an  equitable  apportionment  and  division  of  the 
land,  it  might  sometimes  be  expedient  for  the  court  to  order  a 
sale  of  the  property  and  a  division  of  the  proceeds.  By  the  origi- 
nal equitable  jurisdiction,  independent  of  any  statute,  if  all  the 
parties  sui  juris  were  willing,  the  court  had  power  to  decree  a 
a  sale;  and  this,  even  though  infants  might  be  among  the  parties 
interested.^  But  where  one  of  the  parties  sui  juris  refused  his  con- 
sent, the  court  had  no  option  but  to  proceed  with  the  ordinary 
mode  of  partition.-  This  restriction  has  in  England  been  re- 
moved by  a  modern  statute.^  In  the  United  States  an  unquali- 
fied powder  of  sale  has  been  conferred  on  the  courts  in  very  many 
of  the  states,  the  power  to  be  exercised  whenever  it  shall  ap- 
pear to  the   court,  independently   of  the   consent   of  the   parties, 

'Earl  of  Clarendon  v.  Hornby,  1  P.  Wms.  446;  Updike  v,  Adams,  24  R. 
1.  220,  96  Am.  fSt.  Rep.  711,  52  Atl.  991. 

-  i.orimer  v.  Lorimer,  5  Madd.  363;  Early  v.  Friend,  10  Gratt.  21.  78  Am. 
Dec.  649;  Fenton  v.  Miller,  116  Mich.  45,  72  Am.  St.  Rep.  502,  74  N.  W.  384. 

■■•■  Ford  V.  Knapp,  102  N.  Y.  140,  55  Am.  Rep.  782,  6  N.  E.  283 ;  Ward  v. 
Ward,  40  \V.  Va.  611,  52  Am.  St.  Rep.  911  and  monographic  note,  29  L.  R.  A. 
449,  21  N.  E.  746.  See  also  ante,  §  1240.  The  same  result  may  be  reached 
li\'  setting  aside  to  such  party  the  portion  of  the  premises  on  which  he  has 
made  the  improA'ements. 

'  111  one  case  the  doctrine  was  carried  to  the  extent  of  making  partition  of  a 
house  by  buikling  a  wall  through  tlie  middle  of  it:  Turner  v.  INIorgan  8  Ves. 
143.  In  general  the  right  to  partition  is  absolute:  O'Pirien  v.  Mahoney,  179 
Mass.  200,  88  Am.  St.  Rep.  371,  60  X.  E.  493;  unless  the  right  is  waived  by 
agreement  among  the  co-tenants:  ]\Iartin  v.  Martin,  170  111.  639,  02  Am.  St. 
Rep.  411,  48  N.  E.  924.  Equity  will,  of  course,  refuse  to  decree  a  division 
Axliere  the  property  is  charged  with  some  trust  or  dedicated  to  some  use  wliich 
would  be  defeated  by  the  partition:  Latshaw's  Appeal,  122  Pa.  St.  142,  9  Am. 
St.  Rep.  76,  15  Atl.  670. 

'Davis  V.  'rurvey,  32  Bcav.  554. 

'■'("odman  v.  Tinkliam   15  Pick.  364. 

=  31   &  32  \ict.,  c.   40, 


§  1303  EQUITY    JURISPRUDEXCE.  870 

that  a  sale  would  be  more  beneficial,  or  less  injurious,  than  an 
f.etual  division.*  As  between  a  sale  and  a  partition,  however,  the 
courts  will  favor  a  partition,  as  not  disturbing  the  existing  form 
of  the  inheritance. 

§  1391.  Partition  of  Personal  Property — Equitable  Jurisdiction 
and  Remedy. — The  rules  and  proceedings  which  obtained  at  com- 
mon law  and  by  statute  on  the  subject  of  partition  related  exclu- 
sively to  real  estate.'  At  common  law  the  co-owner  of  a  chattel 
could  maintain  an  action  respecting  the  common  property  against 
his  co-tenant  only  where  a  loss,  destruction,  or  sale  of  the  property 
was  provable  against  the  defendant.-  However  expedient  the  par- 
tition of  chattels  might  appear,  or  however  desirable  it  might  be 
to  the  co-tenants,  the  common  law  furnished  no  instrumentality  by 
which  the  partition  could  be  judicially  efifected.  There  was  not 
merely  an  inadecpiacy  of  legal  remedy,  there  Avas  an  utter  ab- 
sence of  it.  The  situation  clearly  demanded  the  intervention  of 
equity.  And  although  the  inception  of  the  equitable  jurisdiction 
for  the  partition  of  chattels  is  not  traceable  with  certainty,  the 
jurisdiction  itself  is  unquestioned;  and  where  a  literal  partition 
is  not  practicable,  the  coui't  will   order  a   sale." 

§  1392.  The  Issue  of  Title. — In  the  partition  of  real  estate,  the 
rule  was  well  settled,  that  where  the  title  of  the  complainant  was 
put  in  issue,  a  court  of  equity  would  suspend  its  interference  until 
the  question  of  title  had  been  determined  at  law  in  an  action 
of  ejectment.  But  no  ejectment  lay  to  try  the  title  to  personalty. 
A  refusal,  then,  by  a  court  of  equity,  in  proceedings  for  the  par- 
tition of  chattels,  to  pass  upon  an  issue  of  title  would  be  tanta- 
mount to  a  complete  failure  of  justice.  Courts  of  equity,  therefore, 
when  partition  of  personalty  is  sought,  have  of  necessity  departed 
from  the  analogies  of  the  law  of  real  estate,  and  have  assumed 
jurisdiction  to  determine  as  well  the  issue  of  title  as  any  other 
issue  pertinent  to  the  case.^ 

*Steedman  v.  Weeks,  2  (Strob,  Eq.  145,  49  Am.  Dee.  GGO;  HoUej'  v.  Glover, 
30  S.  C.  404,  31  Am.  8t.  Rep.  883,  15  S.  E.  G05,  IG  L.  R.  A.  77G. 

'  Allnatt  on  Partition.  48. 

-Gilbert  v.  Dickerson.   7    Wend.   449,   22   Am.   Dec.   592. 

» Robinson  v.  Dickey.  143  hid.  205,  52  Am.  St.  Rep.  417,  42  K  E.  679; 
Godfrey  v.  White.  GO  :Mieli.  443,  1  Am.  St.  Rep.  537,  27  X.  W.  593. 

^  Robinson   v.   Dickey   supra. 


871  BILLS    OF    PEACE.  §  1393 


CHAPTER  SECOND. 

SUITS  BY  WHICH  SO.AIE  GENERAL  RIGHT,  EITHER  LEGAL 
OR  EQUITABLE,  IS  ESTABLISHED— BILLS  OF  PEACE  AND 
BILLS   QUIA   TIMET   QUIETING   TITLE. 

ANALYSIS. 

§   1303.     Nature  and  object. 

*i   13114.     Bills   of   peace — Bills   quia   timet — Quieting. title. 

§  1393.  Nature  and  Object. — In  all  the  remedies  belonuino-  to 
this  class,  some  general  right,  which  may  be  either  leoal  or  equi- 
table, is  declared  and  established.^  The  class  includes  suits  to 
establish  a  will,  suits  to  construe  a  will,  and  the  bills  of  peace 
and  bills  quia  timet  for  the  purpose  of  quieting  title,  which  belong- 
to  the  original   general  jurisdiction   of  equity.^ 

'  Some  of  the  remedies  of  this  class  undoubtedly  depend  upon  what  the 
early  chancellors  called  the  "jurisdiction  quia  timet."  Since  the  conception 
of  a.  quia  timet  jurisdiction  is  so  broad  and  runs  through  so  many  diflerent 
branches  of  the  remedial  jurisprudence,  T  have  not  adopted  it  as  a  basis  of 
classification.  The  object  of  suits  to  establish  and  to  construe  wills  is  plainly 
the  establishment  of  a  general  right;  and  the  same  is  no  less  true  of  those 
suits  to  quiet  title,  bills  of  peace,  and  the  like,  which  belong  to  the  original 
jurisdiction  of  equity. 

-  All  of  these  remedies  have  been  fully  considered  in  the  preceding  parts 
of  this  work. 

For  suits  to  establish  a  will,  see  ante.  §  llo8.  For  suits  to  construe  a  will, 
see  ante,  §§  1155-1157.  For  suit  quieting  title,  bills  of  peace,  etc.,  see  ante, 
§§  243-275. 


131)6  EQUITY    JUKIbPRUDENCE.  87Si 


CHAPTER  THIRD. 

SUITS  BY  WHICH  SOME  PARTICULAR  ESTATE,  INTEREST, 
OR  RIGHT,  EITHER  LEGAL  OR  EQUITABLE,  IS  ESTAB- 
LISHED—STATUTORY SUIT  TO  QUIET  TITLE— SUIT  TO 
REMOVE  A  CLOUD  FROM  TITLE. 

A>"ALYSIS. 

§  1395.  Nature   and   object. 

§  139(5.  (Statutory   suit   to  quiet   title;    legislation. 

§  1397.  The    same;    essential    features   and    requisites;    possession;    title, 

S  1398.  Suit  to  remove  a  cloud  from  title;   to  prevent  a  cloud. 

§  1399.  The  same;   when  the  jurisdiction  is  exercised;   general  doctrine, 

§  1395.  Nature  and  Object. — In  all  the  instances  of  this  class, 
a.s  distinguished  from  those  of  the  preceding  one,  the  direct  ob- 
ject of  the  remedy  is  to  declare  and  establish  some  particular 
estate,  interest,  or  right,  either  legal  or  equitable,  in  the  property 
which  is  the  subject-matter.^  The  class  as  a  whole  embraces  suit.s 
for  the  strict  foreclosure  of  a  mortgage  or  a  pledge,  suits  for  the 
redemption  of  a  mortgage,  suits  for  the  redemption  of  a  pledge,- 
statutory  .suits  to  (piiet  title,  and  suits  to  remove  a  cloud  from 
title. 

§  1396.  Statutory  Suit  to  Quiet  Title — Legislation. — The  equity 
jnrisdiction  to  quiet  title,  independent  of  statute,  was  only  in- 
voked by  a  plaintiff  in  i:)ossession,  holding  the  legal  title,  when 
successive  actions  at  law,  all  of  which  had  failed,  Avere  brought 
against  him  by  a  single  person  out  of  possession,  or  when  many  per- 
sons asserted  equitable  titles  against  a  plaintiff'  in  possession  hold- 
ing the  legal  or  an  equitable  title.  The  action  has  been  greatly 
extended  by  statute,  and  in  many  states  is  the  ordinary  mode  of 

^  Some  of  these  remedies,  also,  have  been  said  to  depend  upon  tlie  quia 
timet  jurisdiction. 

-  These  three  remedies  have  already  been  considered :  Strict  foreclosure  of 
a  mortgage:  Ante,  §  1227:  of  a  pledge:  ante,  §  1231.  Redemption  of  a  mort- 
gage: Ante,  §§  1219,  1220;  of  a  pledge:  ante,  §  1231.  I  shall  in  this  chapter 
only  discuss  the  statutory  suit  to  quiet  title,  and  the  suit  to  remove  a  cloud 
from  title.  The  former  of  these  suits  has,  in  many  of  the  states,  become  the 
most  important  and  common  of  equitable  remedies,  and  has  even  taken  the 
place,  to  some  extent,  of  the  action  of  ejectment.  The  original  equitable 
jurisdiction  to  quiet  title  has  been  greatly  enlarged. 


8To  STATl'TOItY  811T  TO  QUI  KT  TITLK.  §   I  ;')•)? 

trying  disputed  titles.^  The  states  adopting  such  statutes  may  be 
separted  into  two  classes,  the  first  and  most  numerous  class  re- 
(luiring  the  plaintil'i'  to  be  in  possession,  and  the  second  allow- 
ing the  action  to  be  brought  by  a  plaintiflt'  in  or  out  of  possession.'- 
In  almost  every  instance  the  statutes,  either  by  express  terms  or 
tlirough  broatl  and  general  language,  allow  tlie  action  to  be  main- 
tained by  persons  having  e(|uitable  titles:  in  other  words,  a  plain- 
titV  need  not  have  a  legal  title."' 

§  1397.  Essential  Features  and  Requisites. — The  essential  fea- 
tures of  the  action  brought  in  states  of  the  first  class,  wherein 
it  differs  from  the  ordinary  equitable  suit  to  quiet  title,  are  that 
the  plaintiff  may  in  all  cases  take  the  initiative,  and  need  not 
wait  for  proceedings  to  be  instituted  against  him;  the  statute 
is  an  enabling  act;  and  the  action  may  be  brought  against  one 
or  more  claimants  without  regard  to  the  interest  or  title — legal 
or  equitable — which  he  or  the  plaintiflt'  may  hold.^  In  addition 
to  the  foregoing  differences,  possession  is  not  required  in  states 
of  the  second  class;  the  action  may  therefore  be  brought  here 
in  cases  where  a  party  at  common  laAV  would  be  left  to  his  rem- 
edy by  ejectment.  Several  of  the  statutes  in  express  terms  allow 
the  action  to  be  brought  to  remove  clouds  from  title ;  others  are 

^  Tlie  action,  also  known  as  one  for  the  "determination  of  adverse  claims" 
exists  in  tlie  '"Code"  states  and  in  several  others  including  Alabama.  Illinois, 
Louisiana.  jNlicliijian,  Mississippi,  New  .Jersey.  The  economic  conditions  which 
gave  rise  to  these  statutes  are  admirably  described  by  Mr.  Justice  Field; 
see  Curtis  v.  .Sutter,  15  Cal.  2(i3 ;  Holland  v.  Challen.  110  U.  8.  21,  ?,  Sup.  (H. 
4!)5,  28  L.  ed.  (52.  The  action,  if  brought  by  a  plaintift'  in  possession,  or  when 
both  parties  are  out  of  possession,  is  almost  nniformly  held  to  be  equitable  in 
its  nature;  but  when  brought  against  a  defendant  in  possession,  it  is  usually 
iicld  that  he  is  entitled  to  a  jury  trial:  see  the  application  of  the  statutes  in 
the  L  nited  (States  courts,  ante,  §  29,3. 

-In  regard  to  the  nature  of  the  possession  requisite  to  maintain  the  action, 
in  states  of  the  first  class,  there  is  some  conflict.  It  has  been  held  on  the  one- 
side  that  possession  must  be  lawful, — must  be  accompanied  by  a  claim  of  right, 
legal  or  equitable:  Stark  v.  Starrs,  0  Wall.  402:  and  on  the  other,  that  it'  is 
immaterial  how  possession  was  obtained, — by  collusion,  fraud,  or  otherwise: 
Calderwood  v.  Brooks,  45  Cal.  519. 

■■•See  Pioneer  Land  Co.  v.  Mad.Iux,  109  Cal.  633.  50  Am.  St.  Rep.  07,  42  Pac. 
295. 

'See  the  various  statutes;  Curtis  v.  Sutter,  15  Cal.  259,  2(53.  A  possessory 
title  is  held  sufficient  to  maintain  the  action  to  quiet  title  to  a  mining  claim 
locatetl  on  public  lands  of  the  United  States:  Merced  Min.  Co.  v.  Fremont.  7 
Cal.  .317.  08  Am.  Dec.  202.  In  states  of  the  first  class,  while  it  is  evident  thai 
a  party  out  of  possession  holding  a  legal  title  must  resort  to  ejectment,  as 
before,  to  recover  possession:  Curtis  v.  Sutter.  15  Cal.  259.  204;  it  is  equall.v 
evident  that  the  statutes  do  not  prevent  a  party  oul  of  possession  from  apply- 
ing for  equitable  relief, — as.  for  examjilc.  1o  have  a  cloud  removed  or  prevent 
a  cloud  from  being  cast  on  his  title:      King  v.   Carpenter,  37   jSIich.  303. 


§  131)9  EQUITY    JURISPRUDENCE.  874 

sufficiently  general  to  inelnde  this  as  well  as  other  adverse  claims.- 
§  1398.  Suit  to  Remove  a  Cloud  from  Title. — The  jurisdiction 
of  courts  of  equity  to  remove  clouds  from  title  is  well  settled/ 
the  relief  being  granted  on  the  principle  quia  timet, — that  is,  that 
the  deed  or  other  instrument  or  proceeding  constituting  the  cloud 
njay  be  used  to  injuriously  or  vexatiously  embarrass  or  affect  a 
plaintiff" 's  title.- 

§1399.  When  fhe  Jurisdiction  is  Exercised — General  Doctrine. 
— -Whether  or  not  the  jurisdiction  will  be  exercised  depends  upon 
the  fact  that  the  estate  or  interest  to  be  protected  is  equitable  in 
its  nature,  or  that  the  remedies  at  law  are  inadequate  where  the 
estate  or  interest  is  legal,— a  party  being  left  to  his  legal  remedy 
where  his  estate  or  interest  is  legal  in  its  nature,  and  full  and  com- 
plete justice  can  thereby  be  done.^     While  a  court  of  equity  -will 

-As  to  the  nature  of  the  adverse  cUiims,  the  pleadings,  and  the  decree,  see 
2  Pom.  Eq.  Rem.  §§  739-743. 

^  "A  bill  will  not  lie  to  remove  a  mere  verbal  claim  or  oral  assertion  of 
ownership  in  property,  as  a  cloud  upon  the  title.  Such  clouds  upon  title,  as 
may  be  removed  by  courts  of  equity,  are  instruments  or  other  proceedings  in 
writing,  which  appear  upon  the  records  and  thereby  cast  doubt  upon  the 
validity  of  the  record  title":  Parker  v.  Shannon,  121  111.  452,  13  N.  E.  155, 
2  Ames  Eq.  Jur.  160,  1  Keener  363.  Formerly  there  seems  to  have  been  some 
doubt  as  to  the  jurisdiction.  Cancellation  is  the  ordinary  remedy  in  removing 
clouds.  It  is  equally  well  established  that  equity  has  jurisdiction  to  prevent, 
by  means  of  injunctions,  clouds  from  being  cast  on  titles:  See  Bishop  v. 
Moorman,  98  Ind.  1,  49  Am.  Rep.  731,  2  Ames  Eq.  Jur.  156;  Pixley  v.  Hug- 
<^ins,  15  Cal.  127,  2  Ames  Eq.  Jur.  153.  The  danger,  however,  in  such  cases 
must  be  imminent,  and  not  merely  speculative  'or  potential:  Sanders  v.  Vil- 
lage of  Yonkers,  03  N.  Y.  489.  Cases  for  preventing  and  removing  clouds 
from  title  depend  generally  upon  the  same  principles,  and  will  be  discussed 
together. 

-The  distinction  between  a  bill  of  peace  and  a  bill  to  remove  a  cloud  is 
stated  in  Holland  v.  Challen,  110  U.  S.  20,  3  Sup.  Ct.  495,  28  L.  ed.  52,  by 
Field,   J. 

'  It  has  been  held  that  a  cloud  upon  the  title  to  personal  property,  even  by 
matter  appearing  of  record,  cannot  be  removed :  Loggie  v.  Chandler,  95  Me. 
220,  49  Atl.  1059,  2  Ames  Eq.  Jur.  140  (chattel  mortgage)  ;  but  there  seems 
no  good  reason  for  thus  restricting  the  jurisdiction,  and  the  instances  are  not 
infrequent  where  it  has  been  exercised,  in  cases  of  void  recorded  chattel  mort- 
gages, spurious  issues  of  shares  of  stock,  etc.:  Sherman  v.  Fitch.  98  IMass.  59 
2  Ames  Eq.  Jur.  141  (chattel  mortgage)  ;  New  York  and  New  Haven  R-  R. 
Co.  v.  Schuyler,  17  N.  Y.  592,  1  Keener  118. 

A  party  who  has  been  in  advei'se  possession  for  a  period  of  time,  which, 
under  the  statute  of  limitations,  vests  him  with  a  title  against  all  the  world, 
can  bring  his  suit  against  a  party  claiming  under  a  record  title,  to  have 
the  claim  determined  and  adjudged  null  and  void  as  against  him,  "The  statute  of 
limitations  as  against  a  party  claiming  under  a  written  title  would  have  per- 
formed but  half  its  mission,  as  a  statute  of  repose,  if  the  party  relying  upon 
it  must  wait  till  he  is  attacked  before  he  can  reduce  the  evidence  of  his  title 


8T5  SUIT  TO  ui::move  a  cloud  from  title.  §  1399 

set  aside  a  deed,  agreement,  or  proceeding  aifecting  real  estate, 
Avhere  extrinsic  evidence  is  necessary  to  show  its  invalidity,  be- 
cause such  instrument  or  proceeding  may  be  used  for  annoying 
and  injurious  purposes  at  a  time  when  the  evidence  to  contest 
or  resist  it  may  not  be  as  effectual  as  if  used  at  once,  still,  if  the 
defect  appears  upon  its  face,  and  a  resort  to  extrinsic  evidence  is 
unnecessary,  the  reason  for  equitable  interference  does  not  exist, 
for  it  cannot  be  said  that  any  cloud  whatever  is  cast  upon  the 
title.-  ...  In   the   absence   of    statutes   giving   a   prima     facie   validi- 

to  the  form  of  a  permanent  record":  Arrington  v.  Liscom,  34  CaL  3G5,  94  Am. 
Dec.  722,  2  Ames  Eq.  Jur.   142. 

As  to  whether  possession  by  a  plaintiff  is  necessary  before  he  can  resort  to 
equity  to  I'emove  a  cloud,  there  appears  to  be  some  conflict  of  opinion  arising 
from  loose  and  careless  statements  of  judges,  and  an  overlooking  of  the  prin- 
ciples of  equity  in  regard  to  the  exercise  of  its  jurisdiction.  When  the  estate 
or  interest  to  be  protected  is  equitable,  the  jurisdiction  should  be  exercised 
whether  the  plaintiff  is  in  or  out  of  possession,  for  under  these  circumstances 
legal  remedies  are  not  possible ;  but  when  the  estate  or  interest  is  legal  in 
its  nature,  the  exercise  of  the  jurisdiction  depends  iipon  the  adequacy  of  legal 
rejnedies.  Thus,  for  example,  a  plaintiff  out  of  possession,  holding  the  legal 
title,  will  be  left  to  his  remedy  by  ejectment,  under  ordinary  circumstances: 
Whitehead  y.  Shattiick,  138  U.  S.  146,  11  Sup.  Ct.  276,  34  L.  ed.  873.  But 
where  he  is  in  possession,  and  thus  unable  to  obtain  any  adequate  legal  relief, 
he  may  resort  to  equity:  Bull's  Appeal,  113  Pa.  St.  510,  6  Atl.  540,  1 
Keener  348.  Where,  on  the  other  hand,  a  party  out  of  possession  has  an 
equitable  title,  or  where  he  holds  the  legal  title  under  circumstances  that  the 
law  cannot  furnish  him  full  and  complete  relief,  his  resort  to  equity  to  have 
a  cloud  removed  ought  not  to  be  questioned:  Echols  v.  Hubbard,  90  Ala.  309, 
7  South.  817;  Brown  v.  Wilson,  21  Colo.  309,  52  Am.  St.  Eep.  228,  40  Pac.  688; 
as,  wiiere  the  plaintiff  is  a  remainderman  or  reversioner  unable  to  recover 
possession:  Woodstock  Iron  Co.  v.  FuUenwider,  87  Ala.  584,  13  Am.  St.  Rep. 
73,  6  South.  197;  Oppenheimer  v.  Levi,  96  Md.  296,  54  Atl.  74,  60  L.  R.  A. 
729.  While  it  cannot  be  said  that  the  cases  are  uniform  on  the  above  propo- 
sitions, still  it  is  believed  that  the  rule  stated  in  the  text  and  the  above 
explanations  are  founded  on  principle  and  are  sufficient  to  reconcile  a  vast 
majority  of  the  conflicting,  or  apparently  conflicting,  judicial  opinions  and 
dicta  on  this  question.  In  some  of  the  cases  the  rule  is  so  broadlj^  stated 
as  to  require  a  plaintiff,  seeking  to  have  a  cloud  removed,  under  all  circum- 
stances to  be  in  possession:  Keane  v.  Kyne,  66  Mo.  216,  2  Ames  Eq.  Jur. 
144:  Avhile.  on  the  other  hand,  it  is  as  generally  stated  that  possession  is  never 
essential.  Both  of  these  extreme  views  are  open  to  criticism,  and  the  cases 
should  always  be  considered  with  reference  to  the  facts  actually  before  the 
court. 

^Vhere  neither  party  is  in  possession,  or  Avhere  the  lands  are  wild  and  im— 
occupied,  it  has  been  generally  admitted  that  the  remedy  at  law  is  inadequate 
and  that  equity  has  jurisdiction  to  prevent  or  remove  a  cloud:  see  Martin 
v.  Graves.  5  Allen  601,  2  Ames  Eq.  Jur.  137;  O'Brien  v.  Creitz,  10  Kan.  202, 
2  Ames  Eq.  Jur.  146;  Holland  v.  Challen,  110  U.  S.  19,  3  Sup.  Ct.  495,  28  L. 
ed.  52.  a  statutory  suit  to  quiet  title. 

^  Simpson  v.  Lord  Howden,  3  jMylne  &-  C.  97.  102,  103,  108,  and  cases  cited, 
2  Ames  Eq.  Jur.   124,  1  Keener  323;  Scott  v.  Onderdonk,  14  N.  Y.  9,  67  Am, 


§  131)!)  EQUITY    JURISPRUDEXCE.  87(5 

ty  to  deeds  or  other  proceedings,  the  following  doctrine  seems 
to  be  sustained  by  the  great  majority  of  American  decisions: 
Where  the  instrument  or  proceeding  constituting  the  alleged  cloud 
is  absolutely  void  on  its  face,  so  that  no  extrinsic  evidence  is 
necessary  to  show  its  invalidity,  and  where  the  instrument  or  pro- 
ceeding is  not  thus  void  on  its  face,  but  the  party  claiming  under 
it.  in  order  to  enforce  it,  must  necessarily  offer  evidence  which  will 
inevitably  show  its  invalidity  and  destroy  its  efficacy, — in  each  of 
these  cases  the  court  will  not  exercise  its  jurisdiction  either  to  re- 
strain or  to  remove  a  cloud,  for  the  assumed  reason  that  there  is 
no  cloud.^     While    this    doctrine    may    be    settled  by    the  weight    of 

Dec.  106,  2  Allies  Eq.  Jur.  147,  1  Keener  331;  Clark  v.  Davenport,  95  N.  Y. 
477,  1  Keener  344;  Moores  v.  Towiisliend,  102  N.  Y.  387,  7  X.  E.  401,  1 
Keener  355. 

In  many  states,  deeds,  certificates,  and  otlier  instruments  given  on  sales 
for  taxes  are  made  prima  facie  evidence  by  statute  of  the  regularity  of 
proceedings  connected  with  the  assessments  and  sales,  and  it  is  well  settled 
tliat  courts  of  equity  will  set  aside  such  instruments  for  defects,  although 
such  defects  are  apparent  on  the  face  of  the  proceedings  leading  up  to  the 
execution  of  the  instrument;  or.  in  a  proper  case,  the  execution  of  such  an 
instrument,  prima  facie  valid  on  its  face,  may  be  enjoined.  Scott  v.  Onderdonk, 
14  N.  Y.  !),  (i7  Am.  Dec.  lOG,  2  Ames  Eq.  Jur.  137,  1  Keener,  331. 

"IScott  V.  Onderdonk.  14  N.  Y.  147,  07  Am.  Dec.  106,  2  Ames  Eq.  Jur.  147, 
1  Keener  331;  VN'ashburn  v.  Burnham,  6:;  N.  Y.  132,  2  Ames  Eq.  Jur.  150 
(extreme  application  of  princijjle;  in  suit  l\v  (k>fciidant  he  must,  by  extrinsic 
proof,  show  power  of  attorney  to  execute  the  instrument,  and  relief  therefore 
denied   to  coniphiiiiaiit) . 

it  is  a  rule  in  many  jurisdictions  that  where  the  title  of  both  comphiinant 
and  defendant  are  derived  from  a  common  source,  but  defendant's  title  appears 
by  the  records  to  have  originated  subsequently  to  the  complainant's  title,  so 
that  by  an  inspection  of  the  whole  record  it  appears  that  the  defendant's  title 
is  prima  facie  inferior  to  that  of  the  complainant,  the  complainant  is  still 
entitled  to  equitable  relief,  since  he  would  be  required,  in  an  action  by  the 
delendant,  to  offer  evidence  of  his  owii  prior  title  in  order  to  defeat  a  recovery. 
'■'Hie  true  test,  as  we  conceive,  by  which  the  qviestion,  whether  a  deed  would 
cast  a  cloud  upon  the  title  of  the  plaintiff,  may  be  detennined,  is  this:  Would 
tlie  owner  of  the  property,  in  an  action  of  ejectment  brought  by  the  adverse 
party,  founded  upon  the  deed,  be  required  to  offer  evidence  to  defeat  a  recovery? 
If  such  proof  wovild  be  necessary,  the  cloud  would  exist;  if  the  proof  Avould 
be  unnecessary,  no  shade  would  be  cast  by  the  presence  of  the  deed" :  Pixley  v. 
Muggins,  15  Cal.  127,  2  Ames  Eq.  Jur.  153,  by  Field,  C.  J.  (a  leading  case  on 
the  whole  subject)  ;  Linnell  v.  Battey,  17  R.  I.  241,  21  Atl.  606,  1  Keener  387. 
In  New  York,  however,  and  a  few  other  jurisdictions,  the  contrary  is  the 
rule;  if  it  appears  by  the  whole  record  that  the  complainant's  title  is  paramount, 
there  is  no  ch)ud  to  l)e  removed:  Bockes  v.  Lansing,  74  N.  Y.  437.  2  Ames 
Ivp  .Jur.  152  (complainant's  title  was  derived  from  an  assignee  for  benefit  of 
creditors  of  (i.  \\ .,  and  defendant's,  through  a  sale  by  receiver  of  G.  W.'s 
jiroperty,  subsequently  appointed.  ''Those  claiming  under  the  receiver's  sale 
could  not  establish  any  title,  without  first  overthrowing  the  plaintiff's  title  by 
showing  by  extrinsic  evidence  that  the  assignment  made  b}'  G.  \V.  was 
fraudulent  and  void"). 


S77  SUIT    TO    REMOVE    A    CLOUD    FROM    TITLE.  §  13!)U 

authority,  I  iiiust  express  the  opinion  that  it  often  operates  to 
produce  a  denial  of  justice.  It  leads  to  the  strange  scene,  almost 
daily  in  the  courts,  of  defendants  urging'  that  the  instruments 
under  which  they  claim  are  void,  and  tkercfure  that  thry  ought  to 
he  penititted  to  stn)id  unmolested,  and  of  judges  deciding  that  the 
court  cannot  interfere,  because  the  deed  or  other  instrument  is  void, 
wliile  from  a  lousiness  point  of  view  every  intelligent  person  knows 
that  the  instrument  is  a  serious  injury  to  the  plaintiff's  titie, 
gieatly  depreciating  its  market  value,  and  the  judge  himself  who 
repeats  the  rule  would  neither  buy  the  property  while  thus  aft'ect- 
ed  nor  loan  a  dollar  upon  its  security.  This  doctrine  is,  in  truth, 
based  uj)on  mere  verbal  logic,  rather  than  upon  considerations  of 
justice  and  expediency.* 

In  pursuance  of  the  general  doctrine  it  is  usually  held  that  if  the  defendant's 
title  IS  derived  from  a  complete  stranger  to  the  complainant's  title,  from  one 
who  never  had  any  connection  with  the  property,  it  does  not  constitute  a 
cloud;  as,  where  an  execution  is  levied  upon  lands  owned  by  complainant, 
issued  upon  a  judgment,  in  an  action  to  which  he  was  not  a  party,  against 
one  who  never  had  any  interest  in  the  lands :  Lytle  v.  Sandefeer,  93  Ala.  396, 
9  Soutli.  2()0,  1  Keener  383  (deed  by  widow  of  intestate  not  a  cloud  on  title 
of  his  heirs)  ;  Thompson  v.  Etowah  Iron  Co.,  91  Ga.  538,  17  S.  E.  663,  per 
Lumpkin,  .).,  and  cases  cited  (an  instructive  opinion).  But  in  several  states 
such  levy  may  be  enjoined,  on  the  general  theory,  obtaining  in  such  states  that 
a  void  act  nnder  color  of  judicial  process  is  subject  to  injunction:  Bishop  v. 
Moorman,   98   Ind.   1,   49  Am.   Rep.   731,  2  Ames  Eq.  Jur.    156. 

*  This  criticism  has  been  adopted,  and  the  doctrine  repudiated  in  a  few 
slates:  Day  Land  &  Cattle  Co.  v.  .State,  68  Tex.  527,  4  S.  W.  865,  1  Keener, 
.364.  This  j^assage  has  also  been  quoted  in  certain  cases  enjoining  invalid 
execution  sales,  enumerated  in  the  last  note,  Linnell  v.  Battey,  Bishop  v. 
Moorman.  To  the  same  effect  are  the  early  English  case,  Bromley  v.  Holland, 
7  Ves.  ,3,  21,  22:  dicta  of  Chancellor  Kent  in  Hamilton  v.  Cnmmings,  1  Johns. 
Ch.  517,  1  Keener  317,  I  Scott  104,  and  of  Chief  -Tustice  Marshall  in  Piersoll 
V.  Elliott,  6  Pet.  98,  8  L.  ed.  334,  Shep.  241,  to  the  effect  that  the  question  should 
be  one  of  discretion,  not  of  jurisdiction,  where  the  instrument  was  void  on 
its  face;  see  furthei-.  Pom.  Eq.  Picm.,  §  734. 


§  1400  EQUITY    JUEISPKUDENCE.  SYi 


FIFTH  GROUP. 

REMEDIES     BY    WHICH    EQUITABLE    OBLIGATIONS    ARE 
SPECIFICALLY  AND  DIRECTLY  ENFORCED. 


CHAPTER    FIRST. 

SPECIFIC  PERF0R:\IAXCE  OF  CONTRACTS. 

ANALYSIS. 

§    1400.     Nature  and  object. 

§   1401.     Specific   perforinance  of  contracts;   grounds   of  the   jurisdiction. 

§  1402.  Extent  of  the  jurisdiction;  inadequacy  of  damages;  various 
Icinds  of  contracts;  lands;  chattels;  things  in  action;  awards; 
special  contracts. 

§  1402a.  No  relief  when  decree  would  he  nugatory;  partnership  agree- 
ments. 

§  1402b.  Specific  performance  refused  when  court  cannot  render  or  en- 
force a  decree. 

§   1402c.  Same:      arbitration  agreements,  etc. 

§   1402d.  Same:      contracts   for   personal   services. 

§   1402e.  Same:      contracts   for  building  oi'  construction. 

§  1402f.  Same:  other  contracts  requiring  continuous  acts;  railroad  oper- 
ating  agreements. 

§  1403.  Extent  of  the  jurisdiction:  Impracticability  of  the  legal  rem- 
edy. 

^  1404.     The  jurisdiction  discretionary. 

§  1405.  Essential  elements  .and  incidents:  valuable  consideration;  cer- 
tainty:   nuituality;    fairness;    hardship;    doubtful   title,   etc. 

§  140G.  Rights  under  the  contract;  effect  of  events  Avithout  the  agency 
of  the   parties. 

§   1407.     Performance  by   plaintiff  a   condition   j^recedent. 

§   1408.     Time  as  afi'ecting  the  right  to  a  performance. 

S   1499.     Enforcement   of  verbal  contracts  part  performed. 

§   1409a.  Same:    acts   of   part   performance;    possession;    impi'ovements. 

§   1409b.  Same:    payment. 

§   1409c.  Same:   oral  promise  to  give. 

§   1409d.  Same:  marriage  not  part  performance. 

§  1409e.  S])ecific  performance  because  of  fraud,  independent  of  doctrine 
of   part   performance. 

§   1409f.  Partial   performance  with   compensation. 

§   1410.     Damages  in  place  of  a  specific  performance. 

§  1400.     Nature  and  Object. — The   remedies    embraeed    in    this 
group  are  all  purely  equitable,  and  the  rights  of  the  complainant 


879  SPECIFiq    PERFORIMANCE    OF    CONTRACTS.  §  1401 

and  obligations  of  the  defendant  which  are  enforced  by  their 
means  are  also  equitable.^  They  belong,  therefore,  to  the  exclu- 
sive jurisdiction  of  equity.  Their  distinctive  object  is  to  specifically 
enforce  the  complainant's  equitable  right,  and  to  compel  the  de- 
fendant to  specifically  perform  the  actual  equitable  obligation  which 
rests  upon  him.  This  group,  as  a  whole,  contains  the  specific 
performance  of  contracts,  including  the  performance  of  verbal 
contracts  for  the  sale  of  land  which  have  been  part  performed, 
and  the  delivery  up  of  specific  chattels;  the  specific  enforcement 
-of  trusts,  express  and  implied ;  and  the  specific  enforcement  of 
obligations  arising  from  fiduciary  relations  analogous  to  trusts.- 
§  1401.  Specific  Performance  of  Contracts — Ground  of  the  Juris- 
diction.— The  remedy  of  the  specific  performance  of  contracts  is 
purely  equitable,  given  as  a  substitute  for  the  legal  remedy  of 
compensation,  whenever  the  legal  remedy  is  inadequate  or  impracti- 
cable. In  the  language  of  Lord  Selborne:  "The  principle  which 
is  material  to  be  considered  is,  that  the  court  gives  specific  perform- 
ance instead  of  damages  only  when  it  can  by  that  means  do  more 
perfect  and  complete  justice."'^  The  jurisdiction  depending  upon 
this  broad  principle  is  exercised  in  two  classes  of  cases:  1.  Where 
the  subject-matter  of  the  contract  is  of  such  a  special  nature, 
or  of  such  a  peculiar  value,  that  the  damages,  when  ascertained 
according  to  legal  rules,  would  not  be  a  just  and  reasonable  sub- 
stitute for  or  representative  of  that  subject-matter  in  the  hands 
of  the  party  who  is  entitled  to  its  benefit ;  or  in  other  words,  where 
the  damages  are  inadequate ;  2.  Where,  from  some  special  and  prac- 
tical features  or  incidents  of  the   contract  inhering  either   in   its 

^  Although  contracts  may  also  give  rise  to  a  legal  right,  yet  when  equity 
compels  their  specific  performance,  it  enforces  the  equitable  obligation  aris- 
ing from  them,  and  not  the  legal  duty.  In  most  cases,  it  turns  the  vendee's 
equitable  estate  into  a  legal  one. 

-The  indirect  specific  enforcement  of  certain  contracts  by  means  of  an 
injunction  has  already  been  considered  in  a  preceding  chapter  {§§  1341- 
1344).  and  will  not  be  here  discussed. 

^  Wilson  V.  Northampton,  etc.,  R'y,  L.  R.  9  Ch.  279,  284.  The  foundation 
and  measure  of  the  jurisdiction  is  the  desire  to  do  justice,  which  the  legal 
remedy  would  fail  to  give.  This  justice  is  primarily  due  to  the  plaintifl', 
but  not  exclusively,  for  the  equities  of  the  defendant  are  also  protected. 
.Specific  performance  is,  therefore,  a  conscious  attempt  on  the  part  of  the 
court  to  do  complete  justice  to  both  the  parties  with  respect  to  all  the  judicial 
relations  growing  out  of  the  contract  between  them:  See  Buxton  v.  Lister, 
3  Atlv.  383,  1  Ames  Eq.  Jur.  47,  2  Scott  21,  2  Keener  5;  Wright  v.  Bell,  5 
Price  325,  328,  329,  2  Keener  9;  Adderley  v.  Dixon,  1  Sim.  &  St.  607,  010, 
1  Ames  Eq.  Jur.  58.  H.  &  B.  584,  2  Scott  14,  2  Keener  13;  Ord  v.  Johnston. 
1  Jur.  N.  S.  1063,  1064,  1  Scott  40.  It  follows,  therefore,  that  the  remedial 
right,  if  it  exists  at  all,  must  be  mutual ;  each  party  must  be  able  to  enforce 
the  remedy  against  the  otiier:     See  post,  S§  1402,  n.  2,  1405,  n.  3. 


§  1402  EQUITY    JUKlSriU'DENCE.  880 

subject-matter,  in  its  terras,  or  in  the  relations  of  the  parties, 
it  is  impossible  to  arrive  at  a  legal  measure  of  damages  at  all, 
or  at  least  with  an}^  sufficient  degree  of  certainty,  so  that  no  real 
compensation  can  be  obtained  by  means  of  an  action  at  law ;  or 
in  other  words,  where  damages  are  impracticahle.- 

§  1402.  Extent  of  the  Jurisdiction — Inadequacy  of  Damages. — 
The  object  of  the  present  discussion  is  to  determine  the  general 
classes  of  contracts  which  come  within  the  jurisdiction,  and  which 
may  be  specifically  enforced.  Whether  any  particular  contract 
belonging  to  one  of  these  classes  will  actually  be  thus  enforced 
depends  upon  other  ec^uitable  elements,  to  be  described  hereafter. 
Lands:  Where  land,  or  any  estate  therein,  is  the  subject-matter 
of  the  agreement,  the  inadequacy  of  the  legal  remedy  is  well 
settled,  and  the  equitable  jurisdiction  is  firmly  established.^  When- 
ever a  contract  concerning  real  property  is  in  its  nature  and  in- 
cidents entii'cly  unobjectionable, — when  it  possesses  none  of  those 
features  which,  in  ordinary  language,  influence  the  discretion  of 
the  court, — it  is  as  inuch  a  matter  of  course  for  a  court  of  equity 
to  decree  its  specific  performance  as  it  is  for  a  court  of  law  to 
give  damages  for  the  breach.-     Chattels:   On  the  contrary,  the  doc- 

-  The  ground  of  the  jurisdiction  may  be  practically  stated  thus:  that  an 
award  of  damages  will  not  put  the  party  in  a  situation  as  beneficial  to 
him  as  if  the  agreement  were  specifically  performed. 

^  Tlie  remedy  of  specific  performance  is  sometimes  spoken  of  as  one  of  1  he 
most  ancient  heads  of  equity  jurisdiction.  Professor  Ames,  however  ( 1  Green 
Bag,  iiG;  1  Ames,  Cas.  Eq.  Jur.  37),  is  of  the  opinion  that  the  cases  relied 
on  to  sixpport  this  belief  were  instances  of  other  kinds  of  relief,  and  that 
with  one  exce])tion.  dating  from  H.IS,  no  clear  instance  of  specific  performance 
is  to  be  found  earlier  than  the  middle  of  the  sixteenth  centurj'.  Soon  after  that, 
however,  the  remedy  became  common,  as  applied  to  contracts  concerning  land. 
The  origin  and  early  grounds  of  the  jurisdiction  concerning  land  contracts  are 
thus  conjectural.  The  accepted  explanation  of  the  rule  that  specific  performance 
of  such  contracts  is  enforced  may  be  found  in  the  following  passages:  Adder- 
ley  V.  Dixon,  1  Sim.  &  St.  (107.  1  Ames  Eq.  Jur.  .58,  H.  &  B.  584,  2  Scott  14, 
2  Keener  1.3:  '"Courts  of  equity  decree  the  specific  performance  of  contracts, 
not  uj)on  any  distinction  between  realty  and  personalty,  but  because  damages 
at  law  may  not  in  the  particular  case  afford  a  complete  remedy.  Thus,  a 
court  of  equity  decrees  performance  of  a  contract  for  land,  not  because  of  the 
real  nature  of  the  land,  but  because  damages  at  law,  which  must  be  calculated 
upon  the  general  money  value  of  the  land,  may  not  be  a  comjilete  remedy  to 
the  purchaser,  to  whom  the  land  may  have  a  peculiar  and  special  value." 
Cud  V.  Kutter,  1  P.  W'ms.  570,  2  Scott  44,  1  Keener  1 :  "One  parcel  of  land 
may  vary  from,  and  be  more  commodious,  pleasant,  or  convenient  than  another 
parcel  of  land."  It  should  be  carefully  obs(>rved,  however,  that  the  remedy  in 
equity  for  the  specific  performance  of  land  contracts  is  not  refused  because, 
in  the  individual  case,  these  reasons  may  not  hold  good  and  damages  in  an 
action  at  la\\-  may  be  adequate  relief:     See  ante,  §  221. 

-Among  (vtiicr  contracts  thus  enforced  arc  agreements  to  give  or  renew  a 
lease:      Buckland    v.  'Paj)illoji,    L.    R.   2    Ch.   App.    G7,   2    Keener   442;    contracts 


b81  sri:ciFic   i'i:i;fok.maxck  of  contkacts.  §  140'<:' 

trine  is  equally  well  settled  that  eciuity  will  not,  in  general,  decree 
the  specilic  i)errornian("e  of  contracts  concerning  chattels,  because 

for  mortgages:  Hermann  v.  Hodges,  L.  R.  IG  Eq.  18,  1  Ames  Eq.  Jur.  01, 
2  Scott  58,  2  Keener  56;  Hicks  v.  Turck,  72  Mich.  311,  40  N.  W.  339,  H.  &  B. 
711,  2  Keener  57;  family  settlements:  Wistar's  Appeal,  80  Pa.  St.  484;  bonds 
to  convey  land:  Ewins  v.  (lordon,  49  N.  H.  444;  judicial  sales:  Gregory  v. 
Tingley.  IS  Neb.  319,  25  N.  W.  S8.  The  enforcement  of  contracts  concerning 
land   in   another  country  or  state   is   described   in   §§   428   et  seq.,   ante. 

Contract  to  Malce  a  Will  of  Lands. — A  contract  to  devise  land,  though 
looked  upon  Avith  some  disfavor  as  a  non-testamentary  metliod  of  disposition 
of  property  at  death,  and  consequently  not  subject  to  the  statute  of  wills, 
nrll  yet  be  in  effect  enforced  by  equity  when  the  contract  is  clear,  definite, 
and  without  doubt:  Cassey  v.  Fitton  (1679),  2  Hargrave,  Juridicial  Argu- 
ments. 296,  1  Ames  Eq.  Jur.  145;  Johnson  v.  Hubbell,  10  N.  J.  Eq.  332.  04 
Am.  Dec.  773;  Bolman  v.  Overall,  80  Ala.  451,  60  Am.  Rep.  107,  2  South.  624. 
It  is  obvious  that  equity  cannot  compel  direct  specific  performance  of  t lie- 
contract  to  devise  land  by  ordering  the  promisor  to  make  the  devise  before 
liis  death,  as  performance  is  not  due  imtil  the  time  of  death.  But  e(iuity 
will  tlo  wliat  is  ecjuivalent  to.  giving  specific  performance,  by  fastening  a 
trust  upon  the  land,  in  the  heir  or  devisee,  and  enforcing  conveyance  by  the 
representative  holding  the  legal  title  in  favor  of  the  purchaser  under  the 
contract  to  devise. 

Specific  i)erforma7ice  in  favor  of  vendor. — It  is  Avell  settled,  with  scarcely 
any  dissent,  that  specffic  performance  is  granted  in  favor  of  a  vendor  of 
land  as  freely  as  in  favor  of  a  vendee,  though  the  relief  actually  obtained  by 
him  is  usually  only  a  recovery  of  money — the  purchase  price;  "it  differs  from 
the  suit  to  enforce  a  vendor's  lien  in  the  fact  that  the  judgment  is  for  the 
recovery  of  the  money  generally,  and  not  out  of  the  land  itself  as  a  special 
fund:"  1  Pom.  Eq.  Jur.,  §  112,  note  1.  Three  theories  have  been  advanced 
lo  explain  the  rule:  (1)  It  is  said  tliat  the  vendor's  remedy  in  law  by  dam- 
ages is  inadequate,  since  the  measure  of  damages  is  the  difference  between 
liie  agreed  price  and  the  market  value,  whereas  the  vendor  might  for  par- 
ticular reasons  stand  in  need  of  the  whole  sum  agreed  to  be  paid:  Lewis 
v.  Lechmere,  10  Mod.  503.  See,  also,  Hodges  v.  Kowing.  58  Conn.  12,  IS  Atl. 
!I7!I,  7  L.  R.  A.  87,  H.  &  B.  585,  2  Scott  62,  2  Keener  95.  The  objection  to  this  theo- 
ry is.  that  it  proves  too  much;  since,  if  the  same  test  were  applied  generally,  dam- 
ages might  be  an  inadequate  remed}'  in  almost  every  instance  of  sale  and 
]Mirchase,  of  chattels  as  well  as  of  land.  (2)  It  is  said  that  by  the  doctrine 
ot'  ('(luitable  conversion  the  A^endee  is  a  trustee  of  the  purchase  price  for  the 
Acndor,  and  the  vendor,  in  obtaining  specific  performance,  enforces  this  trust :  ante, 
S  221,  note;  Lewis  v.  Lechmere.  10  Mod.  503.  To  this  it  may  be  answered,  that 
it  proves  too  little;  for  t'he  doctrine  of  equitable  conversion  is  not  supposed  io 
extend  to  contracts  for  the  sale  and  purchase  of  chattels  or  tilings  in  action, 
yet  the  eases  are  not  infrequent  where  such  contracts  have  been  enforced  at 
the  suit  of  the  vendors  therein:  See  Withy  v.  Cottle;  Adderley  v.  Dixon;  Cogent 
V.  (iihson,  33  Beav.  .557  (vendor  of  patent);  Kenney  v.  Wexham,  infra;  Bum- 
gardner  v.  Leavitt,  35  W.  Va.  194,  13  S.  E.  67,  12  L.  R.  A.  776,  H.  &  B. 
5SS.  (3)  The  rule  is  more  satisfactorily  accounted  for  by  reference  to  the 
doctrine  of  mutuality;  viz..  that  where  an  equitable  remedial  right  in  the 
vendee  is  recognized,  a  corresjionding  remedial  right  should  be  admitted  in 
fav(n"  of  the' ven<lor :  Ante.  S  221,  note.  S  1401,  note  1;  Lewis  v.  Lechiiiere, 
10  .Mo<i.  503;  Withy  v.  Cottle,  1  Sim.  &  St.  174,  1  Ames  Eq.  Jur.  57  (vendor 
56 


5  l-i02  EQUITY    JUKISPKUDEXCE. '  882 

their  mouey  value  recovered  as  damages  will  enable  the  party 
to  purchase  others  in  the  market  of  like  kind  and  quality.  Excep- 
tions: Where,  however,  particular  chattels  have  some  special  value 
to  the  owner  over  and  above  any  pecuniary  estimate, — the  pretium 
affeetionis, — and  where  they  are  unique,  rare,  and  incapable  of 
being  reproduced  by  money  damages,  equity  will  decree  a  specific 
delivery  of  them  to  their  owner,  and  the  specific  performance  of 
contracts    concerning    them."     Things    in    action:    Contracts    for    the 

of  annuity)  ;  Adderley  v.  Dixon,  1  Sim.  &  St.  607,  1  Ames  Eq.  Jur.  58,  H.  & 
ii.  .jS4,  2  .Scott  14,  2  Keener  13  (vendor  of  debt)  ;  Cogent  v.  Gibson,  33  Beav. 
5.57.  1  Ames  Jiq.  Jur.  50,  2  Scott  147,  2  Keener  86  (vendor  of  patentj  ; 
Kenney  v.  Wexham,  6  Madd.  355,  2  Keener  80  (annuity)  ;  Phillips  v.  Berger, 
2  Barb.  G08,  2  Keener  98.  This  is  the  usual  explanation  of  the  rule,  and  appears 
to  reconcile  most,  if  not  all,  of  the  cases. 

"See  also,  ante, •  §  185.  This  class  includes. — 1.  Articles  of  special  value  to 
tlieir  owner,  but  of  no  general  pecuniary  value;  and  2.  Articles  of  such  great 
rarity  and  value  that  tliey  cannot  be  replaced  by  money, — paintings,  statues, 
etc.  The  jurisdiction  will  be  exercised  to  compel  the  delivery  by  one  who  wrong- 
fully detains  them,  or  to  compel  the  specific  execution  of  a  contract  for  their 
sale  or  delivery.  In  Pusey  v.  Pusey,  1  Vern.  273,  1  Scott  86,  Shep.  278,  tlie 
bill  was  that  an  ancient  horn  which  time  out  of  mind  had  gone  along  with  the 
plaintiff's  estate,  and  was  delivered  to  his  ancestors  in  ancient  time  to  hold 
the  land  by,  might  be  delivered  up.  In  Duke  of  Somerset  v.  Cookson,  3  P. 
A\  nis.  389,  1  Ames  Eq.  Jur.  39,  the  suit  was  to  compel  the  delivery  of  an  old 
silver  patera  having  a  Greek  inscription  and  dedication  to  Hercules,  which  had 
been  dug  up  on  plaintiff's  estate.  Fells  v.  Read,  3  Ves.  70,  2  Scott  37,  was 
brought  to  recover  a  tobacco-box  of  a  remarkable  kind,  which  belonged  to  a  club. 
Ld.  Ch.  Loughborough  said:  "The  Pusey  horn,  the  patera  of  the  Duke  of 
Somerset,  were  things  of  that  sort  of  value  that  a  jury  might  not  give  twopence 
beyond  the  weight.     It  was  not  to  be  cast  to  the  estimation  of  people  who  had 

not  those  feelings It  would  be  great  injustice  if  an  individual  cannot 

have  iiis  property  without  being  liable  to  the  estimate  of  people  who  have  not 
his  feelings  vipon  it."  See,  also,  Pearne  v.  Lisle,  Amb.  75,  77,  1  Scott  80; 
Faicke  v.  Gray,  4  Drew.  651,  H.  &  B.  655.  In  analogj'  to  this  jurisdiction  and 
for  the  same  reasons,  equity  will  decree  the  delivery  up  to  the  lawful  owner  of 
deeds,  and  other  written  muniments  of  title:  Ante,  §  185;  McGowin  v.  Rem- 
ington, 12  Pa.  St.  56,  51  Am.  Dec.  584,  1  Scott  90,  H.  &  B.  037  (valuable 
private  maps).  Where,  however,  the  party  seeking  to  recover  the  property 
has  himself  fixed  a  value  at  which  he  has  agreed  to  sell,  he  cannot  subsequently 
come'  into  equity  to  obtain  the  specific  delivery'  of  the  chattel:  Dowling  v. 
Jietjemann,  2  Johns.  &  H.  544,  1  Ames  Eq.  Jur.  40,  2  Scott  41,  2  Keener  20. 

Other  grounds  for  relief. — An  agreement  to  furnish  articles  necessary  to 
the  vendee  and  which  the  vendor  alone  can  supply,  either  because  their  manu- 
facture is  guarded  by  a  patent  or  for  any  similar  reason,  may  be  enforced,  for 
it  is  impossible  to  ascertain  how  much  the  vendee  would  siiffer  from  not  being 
able  to  obtain  such  articles  for  the  iise  in  his  business :  Adams  v.  Messinger, 
147  Mass.  185,  0  Am.  St.  Rep.  679,  17  N.  E.  491,  1  Ames  Eq.  .Jur.  50.  2  Scott 
48,  2  Keener  41.  In  Equitable  Gas  Light  Co.  v.  Baltimore  Coal  Tar  &  Mfg. 
Co.,  63  Md.  285,  2  Keener  35,  specific  performance  was  decreed  of  a  contract 
to  sell  coal  tar  which  plaintiff  needed  in  order  to  fulfill  existing  contracts,  and 
which  it  wouki  be  impossible  to  obtain  otherwise  than  by  purchasing  "in  other 


s83  sPKciFic    im;i;i()i;.maxck  ok   coxti;acts.  §  1402 

3ale  or  assignment  of  tilings  in  action  may  be  enforced  by  the  pur- 
chaser, by  compelling  a  transfer  and  delivery,  where  the  legal 
damages  might  be  too  uncertain  and  conjectural  to  constitute  an 
adequate  compensation.  And  since  the  remedy  must  be  mutual, 
the  vendor  may  also  maintain  the  action  in  such  cases.*     Awards: 

and  distant  cities,  and  transporting  the  same  at  great  expense  and  loss,  the 
amount  of  which  it  is  impossihle  to  estimate  in  advance."  In  Gloucester 
Isinglass  &  (ihie  Co.  v.  Russia  Cement  Co.,  154  Mass.  92,  26  Am.  St.  Rep. 
214,  27  N.  E.  1005,  12  L.  R.  A.  563,  2  Keener  51,  specific  performance  was 
decreed  of  a  contract  to  furnish  fish  skins  to  be  used  in  the  manufacture  of 
glue.  It  appeared  that  fish  skins  are  of  a  very  limited  production,  that  most 
of  the  producers  were  under  contract  with  defendant,  and  that  unless  relief 
were  given  it  would  be  very  difficult  if  not  impossible  for  defendant  to  carry 
on  his  business.  If  a  trust  or  fiduciary  relation  exists  in  reference  to  the 
chattels,  if  an  express  trust  has  been  created  by  the  contract  or  an  implied 
trust  has  arisen  from  the  acts  or  omissions  of  the  parties,  then  equity  will 
exercise  its  jurisdiction  to  compel  the  specific  performance  of  such  contract, 
whether  the  chattels  are  common  or  special,  since  the  court  will  always  enforce 
a  trust.     See  Wood  v.  Rowelifi'e,  3  Hare  304    (affirmed  2  Ph.  382),  2  Scott  40, 

1  Ames  Eq.  Jur.  43.  Insolvency  of  the  defendant,  rendering  him  unable  to 
respond  in  damages,  is  recognized  by  dicta  in  a  few  cases  as  a  sufficient  ground 
for  relief,  altiiough  damages,  if  collectible,  would  be  an  adequate  remedy: 
Parker  v.  Garrison,  61  111.  250,  1  Ames  Eq.  Jur.  44.  But  it  is  believed  that 
in  no  case  has  insolvency  alone  been  the  ground  for  relief.  These  dicta  seem  in 
oonllict  with  sound  principle  in  at  least  two  respects.  In  the  first  place,  sucli 
a  rule  makes  one  under  svich  a  contract  a  preferred  creditor.  In  the  second 
])!ace,  the  inadequacy  of  the  legal  relief  which  is  the  basis  of  equitable  reme- 
dies consists  ordinarily  in  the  general  nature  of  that  relief  in  cases  of  a 
certain  type,  not  in  the  difficulty  of  collection  of  damages  in  the  individual 
instance:      See  Pom.   Spec.  Perf.,   §§   26,  27. 

In  a  few  cases  it  has  been  held  that  where  a  contract  is  to  be  performed 
in  installments,  that  fact  is  sufficient  to  warrant  relief:  Buxton  v.  Lister, 
3  Atk.  383,  1  Ames  Eq.  Jur.  47,  2  Scott  21,  2  Keener  5.  There  seems  very 
little  reason  in  support  of  this  iview,  and  it  has  been  distinctly  repudiated  in 
other  cases:  Fothergill  v.  Rowland,  17  Eq.  132,  140,  1  Ames  Eq.  Jur.  Ill, 
H.  &  B.  599,  2  Scott  111,  2  Keener  261. 

^Accordingly,  a  contract  for  the  sale  of  the  uncertain  dividends  which 
might  become  payable  from  the  estate  of  a  bankrupt — in  other  words,  for  the  sale 
of  a  debt  due  by  a  bankrupt — may  be  specifically  enforced ;  for  damages  cannot 
accurately  represent  the  value  of  future  dividends,  and  to  compel  the  purchaser  to 
take  such  damages  would  be  to  compel  him  to  sell  at  a  conjectural  price:  \Yriglit 
V.  Bell,  5  Price  325,  2  Keener  9;  Adderley  v.  Dixon,  1  Sim.  &  St.  607,  I  Ames  Va\. 
Jur.  58,  H.  &  B.  584,  2  Scott  14,  2  Keener  13;  Cutting  v.  Dana,  25  N.  J.  Eq.  265, 

2  Keener  60.  Likewise,  a  contract  for  the  sale  of  an  annuity  may  be  enforced 
in  equity:  Withy  v.  Cottle,  1  Sim.  &  St.  174,  1  Ames  Eq.  Jur.  57;  Kenney 
V.   Wexham,  6  :\Iadd.  355,  2  Keener  80. 

Patenlfi, — Equity  courts  will  take  jurisdiction  to  compel  the  specific  per- 
formance of  contracts  for  the  conveyance  of  patent  rights,  either  at  the  suit 
of  the  vendor  or  of  the  vendee:  Cogent  v.  Gibson,  33  Beav.  557,  1  Ames  E(]. 
Jur.  50.  2  Keener  86.  2  Scott  147:  Corbin  v.  Tracy.  34  Conn.  325.  H.  &  B.  700, 
2  Scott  40,  2  Keener  34;   Adams  v.  :\Iessenger,   147   J\lass.    185,   6  Am.   St.  Rep. 


§   IWl  EQUITY    JLia.Sl'ULDEXCE,  884 

All  award  is  treated  as  the  continuance  of  the  agreement  to  siiL^ 
mit.  If  it  directs  acts  to  be  done  which,  if  stipulated  for  in  h 
contract,  would  render  such  contract  capable  of  enforcement,  then 
the  award  itself  may  be  specifically  enforced.^  Special  contracts: 
The  jurisdiction  does  not  depend  upon  the  nature  of  the  contract 
nor  of  the  subject-matter,  but  it  will  be  exercised  wherever  the 
le^al  remedy  is  inadequate.  It  has  been  applied  to  a  great  num- 
ber  of   special   agreements.*^ 

679,  17  N.  E.  491,  1  Ames  Eq.  Jur.  .)(),  2  Scott  48,  2  Keener  41.  The  grounds 
for  the  jurisdiction  are  two.  In  the  first  phiec,  it  is  a  thing  which  the  vendor 
alone  can  supply;  and  we  have  already  seen  that  this  is  treated  by  some  au- 
thorities as  sufficient  to  authorize  relief.  In  the  second  place,  damages  for 
the  breach  cannot  be  accurately  estimated,  for  the  profits  to  be  derived  are 
future   and   conjectural. 

Shares  of  stock. — The  right  to  specific  performance  of  contracts  for  the  sale 
of  corporate  stock  depends  upon  the  character  of  the  stock.  In  England  it  is 
held  tliat  a  transfer  of  public  stocks  which  are  always  to  be  had  by  any  person 
wlio  cliooses  to  apply  for  them  in  the  market  will  not  be  decreed,  for  damages 
are  adequate:  Cud  v.  Rutter,  1  P.  \\'ms.  570,  2  Scott  44,  2  Keener  1.  Shares 
of  railway  and  otiier  private  corporations,  which  are  limited  in  number  and 
cannot  always  be  had  in  the  market,  stand  upon  a  different  footing,  and  equity 
may  grant  its  relief:  Duncuft  v.  Albrecht,  12  Sim.  189,  1  Ames  Eq.  Jur.  o"),  2 
Scott  44,  2  Keener  15.  The  rules  in  the  United  States  are  narrower,  and, 
it  Avould  seem,  more  in  accord  with  principle.  Specific  performance  will  not 
be  decreed  if  the  shares  are  readily  obtainable  in  the  open  market.  If,  however, 
the  shares  have  no  market  rating,  and  cannot  easily  be  obtained  elsewhere, 
damages  will  be  inadequate  and  specific  performance  will  be  granted:  Xew 
England  Trust  Co.  v.  Abbott,  162  Mass.  148,  154,  38  K  E.  432,  27  L.  R.  A. 
271,  H.  &  B.  720;  Bumgardner  v.  Leavitt,  35  W.  Va.  194,  13  S.  E.  67,  12  L. 
R.  A.  776.  H.  &  B.  588. 

•"'For  example,  awards  directing  the  conveyance  of  land,  etc.:  Hall  v.  Hardy, 
3  P.  Wins.  187,  1  Ames  Eq.  Jur.  65,  2  Scott  54,  2  Keener  109;  Wood  v.  Griffith, 
1  Swanst.  43,  2  Keener  ll4;  Bouck  v.  Wilber,  4  Johns.  Ch-  405,  2  Keener  125; 
but  not  an  award  directing  merely  a  payment  of  money:     Hall  v.  Hardy,  supra. 

"Specific  i)crformance  may  be  had  of  a  voiitract  to  in-fure,  the  jurisdiction 
being  based  upon  the  complications  and  embarrassments  incident  to  an  action 
at  law  to  enforce  the  contract:  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How. 
390.  13  L.  ed.  187,  1  Ames  Eq.  Jur.  59,  2  Scott  31,  2  Keener  53.  Relief  may 
be  had  in  equity  either  before  or  after  loss;  and  when  sought  after  loss,  the 
hill  may  be  retained  for  the  purpose  of  awarding  the  amount  due:  Tayloe  v. 
-Meieliants'  Fire  Ins.  Co.,  supra.  An  agreement  to  execute  a  mortgage  is  of 
such  character  as  to  be  capable  of  enforcement  in  equity:  Hermann  v-  Hodges,  L. 
Jl.  16  Eq.  18,  lAmes  Eq.  Jur.  61,  2  Scott  58,  2  Keener  oii ;  Hicks  v.  Turck,  72  Mich. 
311,  40  N.  VV.  339,  H.  &  B.  711,  2  Keener  57  ("the  remedy  at  law.  when  resorted  to, 
is  liable  to  a  very  great  variety  of  perplexities  and  embarrassments  arising  from 

the  want  of  the  note  promised The  note  was  liable  to  run  five  years, 

and  complainants  had  the  right  to  have  the  amount  owing  thereon  during 
ail  the  time  it  did  run  secured  by  the  mortgage."  See,  also,  Sporle  v.  Whay- 
man,  20  Beav.  607,  2  Keener  55,  compelling  to  give  memorandum  of  terms 
of  deposit  of  title  deeds)  ;  as  is  also  a  contract  to  indemnify:  Count  Ranelaugh 
V.    Hayes,    1    Vern.    189,    1    Ames    Eq.    Jur.    64.      On    the    other    hand,    a    con- 


885  spi;c[Fic   [m;i;ix)i;m.vxci;  of  roxTit.vcT.s.  §   llO'^Jh 

§  1402a.  No  Relief  When  Decree  Would  be  Nugatory — Partner- 
ship Agreements. — ''The  court  will  not  grant  the  remedy  when 
by  the  terms  of  the  contract  itself  the  defendant  would  be  entitled 
at  any  time  to  terminate  the  agreement  and  thus  evade  the  de- 
cree."^ Accordingly,  it  is  held  that  an  agreement  to  enter  into 
or  carry  on  a  partnership  at  will  cannot  be  specifically  enforced, 
foi  it  might  be  terminated  at  any  time,-  The  doctrine  is  frequent- 
ly stated  more  broadly  to  the  effect  that  as  a  general  rule  the 
court  will  not  decree  specific  performance  of  an  agreement  to  pei-- 
form  and  carry  on  a  partnership."  Equity  may,  however,  secui'<> 
to  a  partner  the  interests  in  property  to  which  by  the  partnership 
agreement  he  is  entitled.* 

§  1402b.  Specific  Performance  Refused  When  Court  cannot  Ren- 
der or  Enforce  a  Decree. — "Although  the  contract  is  valid,  and 
the  defendant  is  able  to  do  what  he  has  undertaken  to  do,  if. 
through  the  want  of  appropriate  means  and  instrumentalities,  the 
court  is  unable,  while  pursuing  its  ordinary  modes  of  administer- 
ing justice,  either  to  render  a  decree  or  to  enforce  the  decree 
when  made,  then  the  remedy  will  be  refused.  Cases  ivliere  the  court 
cannot  render  a  decree:  The  following  species  of  contracts  will 
not  be  thus  enforced:  Agreements  concerning  the  manufacture 
and  sale  of  secret  medicines  and  other  secret  commodities,  where 
the  contract  recognizes  the  secret  as  not  to  be  disclosed.^  Contracts 
foi'  the  sale  or  transfer  of  a  good-will,  separate  from  or  unconnected 

Iraet  to  lend  or  to  borrow  money  cannot  be  specifically  enforced:  Rogers  v. 
Cliallis,  27  Beav.  175,  1  Ames  Eq.  Jur.  Gl,  2  Scott  60,  2  Keener  60  (agreement 
to  borrow  money  not  enforced,  the  court  saying:  "It  is  a  simple  money  demand: 
the  plaintiff  says,  I  have  sustained  a  pecuniary  loss  by  my  money  remainijig 
idle,  and  by  my  not  getting  so  good  an  investment  for  it  as  you  contracted  to 
give  me.  Tiiis  is  a  mere  matter  of  calculation,  and  a  jury  would  easily  assess 
the  amount  of  the  damage  which  the  plaintiff  has  sustained")  ;  Sichel  v. 
Rosenthal.  30  Beav.  371,  2  Keener  72  (not  of  contract  to  lend  money).  The 
remedy  lias  been  applied  to  a  great  variety  of  special  agreements,  where  tlie 
legal  relief  was  inadequate:  Very  v.  Levy,  13  How.  345,  14  L.  ed.  173.  2 
Keener  101   (agreement  to  accept  goods  in  satisfaction  of  a  bond  and  mortgage). 

'  Pom.  p]q.  .Jur..  §  1405,  note. 

-  Hercy  v.  Birch,  9  Ves.  357.  See,  also,  JSomerby  v.  Buntin,  118  Mass.  27'.K 
10   Am.    Rep.   4.59.   2   Keener   78. 

■■■  Seott  V.  Rayment,  L.  R.  7  Eq.  112,  2  Keener  75;  Hyer  v.  Richmond  Trac- 
tion Co..  108  U.  8.  471,  18  Sup.  Ct.  114,  42  L.  ed.  547.  It  is  clear  that  this 
broader  statement  cannot  be  sui)ported  on  the  theory  stated  at  the  beginning  of 
the  section,  but  rather  depends  upon  the  doctrine  described  in  the  following 
sections. 

'Somerby  v.  Buntin,  118  IMass.  27fl,  19  Am.  Rep.  459,  2  Keener  78.  In 
Homfray  v.  Eothergill,  L.  R.  1  Eq.  567,  2  Keener  26,  a  provision  in  a  partner- 
ship deed  that  the  other  partners  should  have  the  first  opportunity  to  purchase 
the  share  of  any  partner  desiring  to  sell  was  specifically  enforced.  See,  also, 
England  v.  Curling,  8  Beav.   129,  2  Keener  68. 

'Newbery  v.  .Tames,  2  J\Ier.  446,  2  Scott  26. 


§  1402d  EQUITY  JURISPRUDENCE.  886 

with  the  business  and  premises  of  which  it  is  an  incident.^  Cases 
where  the  court  cannot  enforce  its  decree:  This  class  includes  the 
following  species  cf  contracts,  for  which  the  eciuitable  remed}^ 
is  refused;^"  the  more  important  of  which,  together  with  the  ex- 
ceptions to  the  rule  of  non-enforcement,  are  described  in  the  fol- 
lowing paragraphs :  Agreements  to  submit  to  arbitration,  and  eon- 
tracts  for  sale  at  a  price  to  be  fixed  by  valuers;  contracts  for  per- 
sonal services;  contracts  whose  performance  would  be  continuous, 
and  would  recpiire  protracted  supervision  and  direction,  including, 
especially,  contracts  for  building  and  construction,  for  w^orking 
mines,  for  operating  railroads,  and  the  like. 

§  1402c.  Same.  Arbitration  Agreements,  etc. — An  agreement  to 
submit  a  matter  to  arbitration,  or  to  sell  at  a  price  to  be  fixed 
by  valuers,  if  the  mode  of  fixing  the  price  is  an  essential  part 
of  the  contract,  will  not  be  specifically  enforced,  since  it  is  be- 
yond the  power  of  the  court  to  compel  arbitrators  to  agree;  nor 
will  the  court  itself  fix  the  j^rice,  since  that  would  be  to  make 
a   new   agreement   for   the    parties.^ 

§  1402d.  Same.  Contracts  for  Personal  Services. — It  is  a  fa- 
miliar rule  that  contracts  for  personal  services,  where  the  full 
performance  rests  upon  the  personal  will  of  the  contracting  party, 
will  not  be  specifically  enforced  against  him.^  It  is  also  generally 
true  that  they  will  not  be  enforced  where  the  plaintiff  is  the  one 
who  has  contracted  to  render  the  services^  and  there  has  been 
no  full  performance  on  his  part,  since  nuituality  in  the  equitable 
remedy    is    then  lacking.-      The    indirect    enforcement    of     contracts 

-  Bozou  V.  Fallow,  1  ^ler.  459.  But  where  the  good-will  is  sold  and  trans- 
ferred, together  with  the  business  and  premises,  the  agreement  may  be  directly 
enforced,  or  negatively  enforced  by  an  injunction:  Darbey  v.  Whitakei-,  4 
Drew  134,  139,  140,  2  Keener  129;  Whittaker  v.  Howe,  3  Beav.  383,  2  Keener 
20!).     See,  also,  ante,  §§    1344,   13,5.5. 

'  Pom.  Eq.  Jur.   §   1405,  n.   10. 

'Pom.  Spec.  Perf.,  §§  291,  309,  149-151;  Milnes  v.  Gery,  14  Ves.  100,  2 
Keener  111;  Agar  v.  Macklew,  2  8im.  &  St.  418,  1  Ames  Eq.  Jur.  67;  Vickers 
V.  Vickers,  L.  R.  4  Eq.  529,  2  Keener  132.  For  instance  where  specific  per- 
formance was  decreed,  the  court  fixing  the  value,  see  Town  of  Bristol  v. 
Bristol  &  \V.  Waterworks,  19  R.  1.  413,  34  Atl.  359,  32  L.  R.  A.  740  (the 
arbitration  clause  held  to  be  a  subsidiaiy  j^art  of  the  agreement,  and  the  value 
therefore  fixed  by  reference  to  the  master). 

As  to  enforcing  aicards,  see  ante,  §   1402,  n.  5. 

'Pickering  v.  Bishop  of  Ely,  2  Younge  &  C.  Ch.  249;  Metropolitan  Exhi-^ 
bition  Co.  v.  Ewing,  42  Fed.  198,  7  L.  R.  A.  381,  H.  &  B.  631;  Rogers  Mfg. 
Co.  v.  Rogers,  58  Conn.  356,  18  Am.  St.  Rep,  278,  20  Atl.  467,  7  L.  R.  A.  771), 
H.  &  B.  629,  Shep.  294,  2  Keener  279;  ante,  §  1343.  The  opinion  of  Chancellor 
Walworth,  in  De  Rivafinoli  v.  Corsetti,  4  Paige  270,  25  Am.  Dec.  532,  is  a 
locus  classicus  of  judicial  humor. 

MVakeham  v.  Barker,  82  Cal.  46,  22  Pac.  1131,  1  Ames  Eq.  Jur.  87,  and 
post,  §   1405,  n.  3. 


887  SPECIFIC    PERFOR.MAXCE    OF    CON  TRACTS.  §  140'2e 

for  services  of  a  unique  and  extraordinary  character,  by  enjoin- 
ing the  breach  of  an  express  or  implied  stipulation  not  to  do  acts 
inconsistent  with  the  rendering  of  the  services,  is  a  subject  that 
has  been  already  treated.^ 

§  1402e.  Same.  Contracts  for  Building  or  Construction. — The 
general  rule  has  long  been  settled,  after  a  period  of  conflict  and 
uncertainty  in  the  early  eases,^  that  contracts  for  building  and 
construction,  and  contracts  to  make  repairs,  will  not  be  enforced 
'in  specie/^  on  account  of  the  inconvenience  of  enforcing  a  decree 
by  the  process  of  attachment  for  contempt,  wheu  numerous  ques- 
tions must  usually  arise  under  the  decree  in  such  a  case  as  to  whether 
there  has  been  substantial  performance,  whether  defective  per- 
formance may  be  excused,  what  compensation  should  be  made  for 
the  deficiency,  and  the  like.  Moreover,  if  the  building  i.s  to  be 
done  on  the  plaintiff's  land,  the  remedy  at  law  is  usually  adequate, 
since  he  maj'-  do  the  work  himself  and  sue  at  law  for  the  cost. 
Several  exceptions  have  been  made  to  the  rule  by  the  English 
courts.^       One    of    these    exceptions    has    become    firmly    established 

^, See  ante,  §  1343. 

Mn  Jones  V.  Parker,  163  Mass.  564,  47  Am.  St.  Rep.  485,  40  X.  E.  1044,  1 
Ames  Eq.  Jur.  73,  2  Scott  83,  2  Keener  192,  Holmes,  J.,  makes  the  sweeping 
assertion  that  courts  of  equity  "have  enforced  such  contracts  from  the  earliest 
days  to  the  present  time";  but  it  has  been  pointed  out  that  the  cases  dating 
from  the  fifteenth  century  bj^  which  the  learned  jvidge  supports  his  assertion 
are  probably  not  cases  of  specific  performance  at  all :  1  Ames  Cas.  Eq.  Jur.  68, 
note  4.  In  tlie  eighteenth  century,  however,  such  contracts  were  enforced 
rather  frequently.  Lord  Hardwicke,  in  City  of  London  v.  Nash  (1747),  3 
Atk.  512,  made  the  distinction  that  a  covenant  to  build  could  be  enforced, 
''for  to  build  is  one  entire  single  thing":  but  not  a  covenant  to  repair.  By  the 
end  of  that  century,  however,  this  distinction  was  abandoned:  Lucas  v.  Comer- 
ford   (1790),  1  Ves.  Jr.  235,  3  Bro.  C.  C.  166. 

-  The  authorities  are  fully  reviewed  in  the  opinion  of  Mr.  .Justice  Miller  in 
Ross  V.  Union  Pac.  Ry.  Co.,  1  Woohv.  26,  Fed.  Cas.  No.  12,080,  2  Scott  6."). 
2  Keener  145  (a  railroad  construction  contract).  See,  also,  Texas  &  P.  Ry. 
Co.  v.  Marshall,  136  V.  S.  393,  407.  10  Sup.  Ct.  846.  34  L.  ed.  385;  Beck  v. 
Allison,  56  N.  Y.  366.  15  Am.  Rep.  430,  1  Ames  Eq.  .Tur.  70,  2  Keener  167,  2 
ScotI  79    (lessor's  covenant  to  repair). 

SSee  4  Pom.  f]q.  .Jur..  §  1402,  note  6.  "I  must  confess  that  T  cannot  alto- 
gether understand  the  principle  upon  which  courts  of  equity  have  acted  in 
sometimes  granting  orders  for  specific  performance  in  these  eases  and  some- 
times not In  early  times  they  seem  to  have  granted  decrees  for  specific 

performance  in  such  cases.  [See  note  1,  supra.]  Then  came  a  period  in  which 
they  would  not  grant  such  decrees  on  the  groimd  that  the  courts  could  not 
undertake  to  supervise  the  performance  of  the  contract.  Later  on  they  seem 
to  have  attached  less  importance  to  this  consideration,  and  returned  to  some 
extent  to  the  more  ancient  practice,  holding  that  they  could  order  specific  per- 
formance in  certain  cases  in  which  the  works  were  specified  by  the  contract  in 
a  sufficiently  definite  manner";  Collins.  L.  J.,  in  Mayor,  etc.,  of  Wolverhampton 
y.  Emmons,   (1901)   1  K.  B.  515,  1  Ames  Eq.  Jur.  76. 


§  14U-3f  EQUITY    JURISPRUDENCE.  888 

''Where  there  is  a  definite  contract,  by  which  a  person,  who  has 
acquired  land  in  consideration  thereof,  has  agreed  to  erect  on  the 
land  so  acquired  a  building  [or  other  structure]  of  which  the 
particulars  are  clearly  specified,  and  the  erection  of  which  is  of 
an  importance  to  the  other  party  which  cannot  adequately  be 
measured  by  pecuniary  damages  .  .  .  specific  performance  ought 
to  be  ordered/"^ 

§  1402f.  Same.  Other  Contracts  Requiring  Continuous  Acts — 
Railroad  Operating  Agreements. — The  general  doctrine  that  equity 
will  not  affirmatively  decree  specific  performance  of  a  contract  re- 
quiring continuous  acts,  especially  if  those  acts  involve  skill,  judg- 
ment,   and    technical    knowledge^    has    been    broken    into,    of    late 

"*  A.  L.  Sniitli,  M.  IJ.,  in  ■Mayor,  etc.,  of  Wolverhampton,  v.  Ennnons,  [li)01]  \ 
K.   a.  515,   1   Ames   Eq.   Jur.   76;   Evan  v.   Mutual   Tontine,  etc.,  Assn.,    [1893] 

1  Ch.  116,  128,  2  Keener  179.  8ee,  also,  Storer  v.  Great  Western  Ry.  Co.,  2 
Younge  &  C.  Ch.  48,  2  Keener  141  (a  leading  case;  contract  by  railway  com- 
])any  to  build  archway  under  track  which  divided  plaintiff's  farm)  ;  Wilson  v. 
Furness  Ky.  Co.,  L.  R.  9  Eq.  28,  2  Keener  164  (agreement  to  build  road  and 
wharf  on  land  conveyed;  per  James,  V.  C.  "It  would  be  monstrous  if  the 
company,  having  got  the  whole  benefit  of  the  agreement,  could  turn  roiind  and 
say,  'This  is  a  sort  of  tiling  which  the  court  finds  a  difficulty  in  doing,  and 
will  not  do.'  Rather  than  allow  svieh  a  gross  piece  of  dishonesty  to  go  unre- 
dressed the  court  would  struggle  ^\•ith  any  amount  of  difficulties  in  order  to 
perform  the  agreement").  The  American  cases  directlj^  in  point  are  not  so 
numerous,  but  clearly  support  the  foregoing  exception;  see,  e.  g.,  Lawrence  v. 
(Saratoga  Lake  Ry.  Co.,  .36  Hun  467,  2  Keener  171  (an  instructive  opinion; 
agreement  by  railway  to  build  bridges  for  overhead  crossings,  and  a  "neat  and 
tasteful    station    buihling,"    enforced). 

The  decision  in  .lones  v.  Parker,  16.3  ]Mass.  564.  47  Am.  St.  Rep.  485.  40  X. 
E.  1044,  1  Ames  Eq.  Jur.  73,  2  Scott  83,  2  Keener  192  (Holmes,  J.),  that  a 
covenant  by  a  lessor  "reasonably  to  heat  and  light  the  demised  premises" 
from  the  time  when  possession  was  taken  by  the  lessee,  should  be  specifically 
enforced  by  a  decree  ordering  the  installation  of  the  necessary  apparatus,  is 
clearly  not  within  tlie  above  exception,  and  appears  to  be  unsupported  by  modern 
aulhority;  see  contra,  e.  g.,  Keith  v.  National  Tel.  Co.,  [1894]  2  Ch.  147,  2 
Keener  188,  infra,  in  next  note. 

'  For  further  instances  of  specific  performance  refused  because  the  execu- 
tion of  the  decree  would  require  supervision  of  acts,  on  part  of  plaintiff  or 
defendant,  extending  over  a  considerable  period  of  time;  see  Flint  v.  Brandon. 
8  Ves.  159.  1  Ames  Eq.  .lur.  69,  2  Scott  70,  2  Keener  137  (1803;  working  a 
gravel  pit):  Blackett  v.  Rates.  L.  R.  1  Ch.  Ai)p.  117,  2  Keener  154  (1865; 
agreement  relating  to  repair  and  use  of  railway)  ;  Powell  Duffryn  Coal  Co.  v. 
Taff  Vale  Ry.  Co..  L.  R.  9  Ch.  App.  331,  1  Ames  Eq.  Jur.  79  (1874;  agreement 
as  to  operating  railway)  ;  Ryan  v.  Mutual  Tontine  Westminster  Chambers  Assn.. 
[1893]  1  Ch.  116.  2  Keener  179  (by  landlord,  to  appoint  a  porter  who  should 
perform   various  services)  ;    Keith,  Prowse  &   Co.   v.  Nat.  Telephone  Co.,    [1894] 

2  Ch.  147,  2  Keener  188  (to  maintain  telephone  wires  and  apparatus  for  plain- 
tiff; but  injunction  against  cutting  wires)  ;  Rutland  Marble  Co.  v.  Ripley,  10 
Wall.  339,  358,  19  L.  ed.  955  (working  a  quarry)  ;  Texas  &  P.  R.  Co.  v.  Mar- 
sliaH.   136  U.   S.   406,   10   Sup.   Ct.   846,   34   L.  ed.   390    (agreement  by  railroad. 


889  SPECll'IC    PERFORMANCE   OF    CONTRACTS.  §  140'3f 

years,  by  an  important  exception  in  favor  of  certain  contracts  relat- 
ing; to  the  operation  of  railroads.  In  analogy  to  the  cases  men- 
tioned in  the  last  section,  where  the  company,  in  consideration 
of  the  conveyance  to  it  of  land,  was  compelled  to  comply  with  its 
agreement  to  erect  certain  structures  for  the  grantor's  benefit, 
its  reasonable  agreement  to  maintain  a  station  on  the  land  con- 
veyed for  the  plaintiff's  convenience,  and  to  stop  trains  thereat, 
will  be  enforced,-  if  that  is  consistent  with  the  company's  larger 
duty  to  operate  its  road  so  as  to  promote  the  public  convenience.'' 
But  the  exception  has  taken  a  much  wider  scope  than  this.  Track- 
age and  operating  contracts  between  railroads,  of  the  utmost  com- 
plexity, have  recently  been  the  subject  of  decrees  of  specific  per- 
formance, although  in  making  their  decrees  the  courts  have  con- 
in  consideration  of  large  gift  of  land  and  money  by  plaintiff  town,  to  establish 
its  offices  and  shops  there)  ;  Electric  L.  Co.  v.  Mobile  &  S.  H.  Ry.  Co.,  109  Ala. 
190,  5'5  Am.  8t.  Rep.  927,  19  South.  721  (agreement  by  plaintiff  to  furnish 
electric  power,  by  defendant  to  operate  cars)  ;  Stanton  v.  Singleton,  126  CaL 
657,  59  Pac.  146,  47  L.  R.  A.  334  (plaintiff's  agreement  to  develop  and  operate 
mines)  ;  see  68  Am.  St.  Rep.  753-762.  for  an  excellent  note  reviewing  the  cases 
on  this  subject. 

The  objections  to  the  exercise  of  tlie  jurisdiction  are  forciblj'  stated  in  a 
leading  case:  "Even  if  the  contract  was  sufficiently  specific,  so  that  the  party, 
when  ordered  to  operate  the  railroad,  wovild  know  the  manner  and  mode  in 
Avhich  the  order  was  to  be  obeyed,  still  the  question  of  obedience  to  the  order 
must  necessarily  be  left  open.  And  the  question  of  obedience  to  such  an  order 
might  come  uj)  for  solution,  not  once,  as  in  the  case  of  the  archway,  the  erection 
of  which  was  ordered  in  Storer  v.  Great  Western  Railway  [supra,  §  1402e,  note 
4],  but  in  instances  innumerable,  and  for  an  indefinite  time.  Instead  of  the 
final  order  being  the  end  of  litigation,  it  would  be  its  fruitful  and  continuous 
source,  and  that,  too.  of  litigation  not  in  tlie  regular  course  of  judicial  yiro- 
ceedings,  but  irregularly,  on  a  summary  application.  And  such  application  to 
be  made  by  either  party,  one  when  he  conceived  there  had  not  been  a  faithful 
compliance  with  the  order,  and  the  other  when  exemption  from  some  provision 
might  be  claimed,  on  the  ground  of  inability  or  unforeseen  events" ;  Port 
Clinton  R.  R.  Co.  v.  Cleveland  &  T.  R.  Co.,  13  Ohio  St.  544,  556.  The  whole 
opinion  in  this  case  is  one  of  the  most  instructive  on  the  general  subject. 

\Miile  the  passage  above  quoted  states  as  forcibly  as  possible  the  reason 
usually  given  in  support  of  the  rule, — viz.,  the  inconvenience  to  the  court, — it 
seems  to  the  editor  that  there  is  some  ground  for  conjecture  that  the  rule 
really  rests  upon  a  deeper  reason  of  public  policy;  a  feeling,  perhaps  not  ex- 
pressed in  the  decisions,  that  the  daily  and  hourly  ordering  of  the  affairs  of 
an  individual  or  a  group  of  individuals,  for  an  indefinite  term  of  years,  in 
obedience  to  the  terms  of  a  chancery  decree,  and  Avith  its  personal  sanction  Tor 
disobedience,  is,  in  effect,  such  an  impairment  of  personal  freedom  as  is  hostile 
to  -the  whole  spirit  of  English  and  American  institutions. 

'Hood  V.  North  Eastern  Ey.  Co.,  L.  R.  8  Eq.  666,  5  Ch.  525,  1  Ames  Eq.  Jur. 
S2,  2  Scott  76.  2  Keener  160  flSHH]:  Lrnvrence  v.  Saratoga  Lake  I^y.  Co..  3r, 
Hun.  467.  2  Keener  171. 

"^  Conger  v.  New  York,  W.  8.  &  B.  R.  R.  Co.,  120  X.  Y.  29,  23  N.  E.  983. 
1  Ames  Eq.  Jur.  412,  H.  &  B.  723,  2  Scott  304.  2  Keener  1046. 


§  1-1'J3  ECiUiTY    jLi:i.sL'ULDi;xci;.  890 

ceded  that  they  would  be  called  upon  from  time  to  time  to  alter 
and  adapt  to  changing  circumstances  their  regulations  for  carrying 
the  decrees  into  effect,  during  a  long  period  of  years."*  In  the 
first  of  the  series  of  cases  an  important  element  affecting  the  de- 
cision was  a  direct  public  benefit  that  resulted  from  not  leaving 
the  complainant  to  its  remedy  of  damages;  but  no  such  element 
appears  to  have  been  present  in  the  cases  that  followed  this  pre- 
cedent. Whether  this  remarkable  series  of  decisions  is  to  be  taken 
as  a  virtual  abandonment,  on  the  part  of  the  influential  courts 
which  rendered  them,  of  the  rule  against  specific  enforcement  of 
continuing  contracts,  or  merely  as  an  arbitrary  exception  in  favor 
of  operating  agreements  among  railroads,  is  a  question  on  which, 
unfortunately,  these  decisions  themselves  shed  little  light.^ 

§  1403.  Extent  of  the  Jurisdiction.  Impracticability  of  a  Legal 
Remedy. — Tliis  ground  of  the  jurisdiction  includes  two  classes  of 
cases :  1.  Where,  from  the  lack  of  some  legal  formality  or  con- 
dition in  the  contract,  no  action  at  law  can  be  maintained;  2. 
Where,   from  some  peculiar  feature   of  the  contract,   either  in   its 

Moy  V.  St.  Louis,  138  U.  8.  1,  11  Sup.  Ct.  243.  34  L.  ed.  843  (1891;  Blatcli- 
ford,  J.)  ;  L  nion  Pac.  Ky.  Co.  v.  Chicago,  R.  1.  &  P.  Ry.  Co.  163  U.  S.  564,  10 
Sup.  Ct.  1173,  41  L.  ed.  265  (1896;  Fuller,  C.  J.),  affirming  Union. Pac.  Ry. 
Co.  V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  51  Fed.  309,  2  C.  C.  A.  174,  10  U.  S.  App. 
•IS  (1892;  Sanborn,  Cir.  J.),  and  Chicago,  R.  I.  &  P.  Rj.  Co.  v.  Union  Pac. 
l!y.  Co.,  47  Fed.  15  (ISOl;  Bre\ver,  .J.);  Prospect  Park  &  C.  I.  R.  R.  Co.  v. 
Coney  Island  &  B.  R.  R.  Co.  (1894),  144  N.  Y.  152,  39  N.  E.  17,  26  L.  R.  A. 
(ilO,  1  Ames  Eq.  .Jur.  83,  H.  &  B.  641;  Schmidt  v.  Louisville  &  N.  R.  Co.,  101 
Ky.   441,  41    S.   W.    1013.  38   L.   R.   A.   809. 

\n  Joy  V.  St.  Louis,  supra,  tlie  A.  company  acquired,  under  contract,  the 
viiiht  to  riui  its  trains  over  the  line  of  the  B  company,  through  a  large  public 
]iark  adjacent  to  tlie  city  of  St.  Louis,  with  the  right  to  numerous  terminal 
facilities.  The  contract  was  unlimited  in  time,  and  contained  complicated  pro- 
visions regulating  the  running  of  trains,  and  prescribing  the  duties  of  super- 
intendents, train  masters,  and  other  officers.  A  special  reason  for  decreeing 
specific  performance  was  found  in  tlie  fact  that  railroads  entering  St.  Louis 
from  the  west  must  cross  this  park  and  that  it  was  desirable,  in  order  to 
maintain  its  usefulness  as  a  park,  that  tliey  should  all  use  a  single  set  of 
tracks.  Contra  to  tliese  cases,  see  the  instructive  opinion  in  Port  Clinton  ±1. 
\l.  Co.  V.  Cleveland  &  T.  R.  R.  Co.,  13  Oliio  St.  544,  an  extract  from  whicli 
i-<  given  su])ra,  note  1. 

"Several  of  the  opinions  meet  the  objection  to  tlie  exercise  of  tlie  jurisdiction 
in  these  cases  by  pointing  to  the  experience  of  the  courts  of  equity  in  rail- 
road management  tiirough  the  instrumentality  of  receivers;  one  of  them  (47 
Fed.  26,  per  Brewer,  .1.)'  even  indulges  in  frank  expressions  of  admiration  for 
such  management ;  and  in  the  Kentucky  case  the  lower  court  is  actually 
directed  to  place  the  road  in  the  hands  of  a  receiver  "if  that  is  deemed  best" 
for  fhe  purpose  of  enforcing  its  orders.  It  hardly  needs  to  be  pointed  out  that 
a  receiver  has  hitherto  been  supposed  to  be  a  provisional  and  temporary  remedy, 
not  one  extending  over  a  period  of  thirty  or  of  nine  hundred  and  ninety-nine 
vears. 


891  SPECIFIC    Pi:i{FOin[AXCE    OF    COXTHACTS.  §  1401- 

sub.ject-matter  or  in  its  terms,  or  in  the  relations  of  the  parties, 
it  is  impossible  to  arrive  at  a  legal  measure  of  damages  at  all, 
or  at  least  with  any  sufificient  degree  of  certainty.^  The  most  im- 
portant instances  in  which  the  jurisdiction  is  referable  to  this 
ground  are, — 1.  Contracts  which  the  plaintifl'  has  not  fully  per- 
formed, or  even  cannot  fully  perform,  on  his  part,  but  which  equity 
enforces  with  compensation  for  his  partial  failure ;  2.  Contracts 
invalid  at  law,  especially  verbal  contracts  concerning  land;  3. 
Contracts    which    are    incomplete    in    their    terms. 

§  1404.  The  Jurisdiction  Discretionary. — The  ob.ject  of  the  fore- 
going paragraphs  is  to  formulate  the  general  rules  which  deter- 
mine the  classes  of  contracts  in  which  the  equitable  jurisdiction 
may  be  exercised.  But  even  when  a  particular  contract  belongs 
to  such  a  cla.ss,  the  right  to  its  performance  is  not  absolute,  like 
the  right  to  recover  a  legal  judgment.  The  granting  the  equitable 
remedy  is,  in  the  language  ordinarily  used,  a  matter  of  discre- 
tion, not  of  an  arbitrary,  capricious  discretion,  but  of  a  sound 
judicial  discretion,  controlled  by  established  principles  of  equity, 
and  exercised  upon  a  consideration  of  all  the  circumstances  of 
each  particular  case.  Where,  however,  the  contract  is  in  writing, 
is  certain  in  its  terms,  is  for  a  valuable  consideration,  is  fair  and 
just  in  all  its  provisions,  and  is  capable  of  being  enforced  without 
hardship  to  either  party,  it  is  as  much  a  matter  of  course  for  a 
court  of  equity  to  decree  its  specific  performance  as  for  a  court 
of  law  to  award  a  judgment  of  damages  for  its  breach.  This  is 
the  ordinary  language  of  judges  and  text-writers.  The  term  ''dis- 
cretionary" as  thus  used  is,  in  my  opinion,  misleading  and  inac- 
curate. The  remedy  of  specific  performance  is  governed  by  the 
same  general  rules  which  control  the  administration  of  all  other 


*  Under  this  head  are  included, — 1.  Contracts  in  which  the  plaintift"  has 
not  performed,  or  even  cannot  perform,  all  the  conditions  on  his  part,  so 
as  to  maintain  an  action  at  law,  but  which  equity  still  may  treat  as  bind- 
ing and  enforce.  In  siich  cases,  if  the  contract  is  othenvise  a  proper  one, 
equity  will  decree  a  specific  performance  with  such  allowance  or  compensations 
as  are  just;  even  where  t'^-^  partial  failure  or  inability  results  from  the  plain- 
tiff's own  fault:  See  post.  §  1409f;  Day  v.  Hunt,  112  N.  Y.  191,  19  N.  E. 
414.  2  Keener  1114.  2.  Contracts  not  valid  at  all  at  law,  but  which  equity 
treats  as  binding  on  the  conscience.  By  far  the  most  important  are  verbal 
contracts  concerning  land  which  are  invalid  by  the  statute  of  frauds,  but  whicli 
if  part  performed,  equity  will  enforce:  See  post.  §  1409,  where  this  subject 
is  treated.  Under  this  head  are  also  included  certain  agreements  void  at  the 
old  common  law,  I)ut  which  equity  enforces;  e.  g..  assignments  of  expectancies; 
agreements  to  assign  things  in  action ;  contracts  between  a  man  and  woman, 
who  afterwards  marry;  Cannel  v.  Buckle.  2  P.  Wms.  243,  1  Scott  100.  3. 
Contracts  incomplete  in  their  terms:  Buxton  v.  Lister,  3  Atk.  383,  1  Ames 
Eq.  Jur.  47,  2  Scott  21,  2  Keener  5. 


§  1405  EQUITY     JLinsPKlDEXCE.  802 

equitable  remedies.  The  right  to  it  depends  upon  elements,  condi- 
tions, and  incidents,  which  eiiuity  regards  as  essential  to  the  ad- 
ministration of  all  its  peculiar  modes  of  relief.  AYhen  all  these 
elements,  conditions,  and  incidents  exist,  the  remedial  right  is  per- 
fect in  eqiuty.^  So  far  as  these  essential  elements  and  conditions 
do  not  relate  to  the  existence  of  contracts  binding  in  equity,  they 
are  nothing  but  expressions  and  applications  of  the  fundamental 
l)rinciples,  he  who  seeks  e([uity  must  do  e(iuity,  and  he  W'ho  comes 
into  e([uity  must  come  with  clean  hands. - 

§  1405,  Essential^lements  and  Incidents. — Assuming  that  a  con- 
tract has  been  completely  concluded,  and  that  it  belongs  to  a 
class  capable  of  being  enforced,  it  must  still  possess  certain  es- 
sential elements  and  incidents,  in  order  that  a  court  of  equity  may 
exercise  the  jurisdiction  to  compel  its  performance.  Some  of  these 
elements  affect  its  validity;  others  its  equitable  character.  It  must 
b(  upon  a  valuable  consideration.^  It  must  be  reasonably  certain 
as  to  its  subject-matter,  its  stipulations,  its  purposes,  its  parties, 
and  the  circumstances  under  which  it  was  made.-  It  must  be, 
in  general,  mutual  in  its  obligation  and  in  its  remedy."     The  con- 

'  These  elements,  conditions  and  incidents,  as  collected  from  the  cases,  are 
tiie  following:  The  contract  must  be  concluded,  certain,  unambiguous,  mutual, 
and  upon  a  valuable  consideration;  it  must  be  perfectly  fair  in  all  its  parts; 
free  from  any  misrepresentation  or  misapprehension,  fraud  or  mistake,  im- 
position or  surprise;  not  an  unconscionable  or  hard  bargain;  and  its  per- 
formance not  oppressive  upon  the  defendant;  and  finally,  it  must  be  capable 
of  specific  execution  through  a  decree  of  the  court. 

-  For  instances  of  the  application  of  these  maxims,  see  ante,  §§  392,  ."^O;?, 
400,  459. 

'  it  nuist  be  a  valuable,  and  not  merely  a  good,  consitleration,  as  blood  and 
atlectioii;  and  a  seal  does  not,  for  this  purpose,  import  a  valuable  considera- 
tion: -lettVrys  v.  .Jetferys,  Craig  &  P.  138,  1  Ames  Eq.  Jur.  261,  1  Scott  303, 
2  Scott,  154,  2  Keener  700:  Lamprey  v.  Lamprey,  29  :Minn.  15(5.  12  X.  \V.  514. 
See,  also,  ante,  S§  370,  1293.  As  to  inadequacy  of  the  consideration  as  a  de- 
fense, see  ante,  §§   925-92S. 

^^See  Hamilton  v.  Harvey,  121  111.  409,  2  Am.  St.  Rep.  118  (uncertainty  as 
to  description)  ;  Russell  v.  Agar,  121  Cal.  396,  66  Am.  St.  Rep.  35,  53  Rac. 
920  (promise  to  bequeath  an  undeterminable  amount)  ;  as  illustrating  the 
correct  use  of  parol  evidence  of  surrounding  circumstances  to  identify  a  subject- 
niatter  vaguely  described,  see  Minneapolis,  etc.,  R.  R.  Co.  v.  Cox,  76  Iowa  306, 
14  Am.  St.  Rep.  216;  R.  L  &  P.  R.  Co.  v.  Dimick,  144  111.  628,  32  N.  E.  291, 
19  L.  R.  A.  105;  Peay  v.  Seigler,  48  S.  C.  496,  59  Am.  St.  Rep.  731,  26  S.  E. 
885. 

^Mutuality. — This  doctrine  is  constantly  stated  by  tlie  courts,  but  there  are 
so  many  exceptions  that  the  rule  is  far  from  universal.  It  has  no  ap])lication 
to  options  for  the  purchase  or  sale  of  lands:  See  ^IcConnick  v.  Stephany, 
57  N.  J.  Eq.  257,  41  Atl.  840.  1  Ames  Eq.  .Tin-.  431:  O'Brien  v.  BoUand.  166 
Mass.  481,  41  N.  E.  602,  1  Ames  Eq.  Jur.  433;  Borel  v.  Mead.  3  X.  Mvx.  84, 
2  Pac.  222,  1  Ames  Eq.  Jur.  434  :  fomi>are  C.raybill  v.  Brugh.  89  Va.  895.  37 
Ani.  St.  Rep.  894,  17  S.  E.  558,  21  L.  R.  A.  133,  H.  &  B.  677.     Lack  of  mutual- 


893  SPECIFIC     I'KUFUU.MANCK    OF    CONTRACTS.  §  1105 

tract  must  be  free  from  any  fraud,  misrepresentation  even  thoiii^cli 
not  fraudulent,  mistake,  or  illegality.'*  The  elements  which  pe- 
culiarly affect  the  equitable  character  of  the  agreement  and  of  the 
remedy  are  the  following:  The  contract  must  be  perfectly  fair, 
equal,  and  just  in  its  terms  and  in  its  circumstances."     The  cou- 

ity  ill  the  obligation  as  well  as  in  the  remedy  is  illustrated  by  the  rnle  tluit 
an  infant  cannot  have  specific  performance  of  liis  contract,  since  the  act  of 
liling  the  bill  by  liis  next  friend  cannot  bind  him:  Flight  v.  Bolland,  4  Russ. 
299,  1  Ames  Eq.  Jur.  422,  2  Scott  136,  2  Keener  800;  but  if  the  infant  on 
reaching  his  majority  files  the  bill  on  liis  voidable  conti-act,  the  lack  (if 
mutuality  is  cured;  Clayton  v.  Ashdown,  9  \'in.  Abr.  393,  pi.  2,  1  Ames  Eq.  Jur. 
421,  2  Scott  133.  Similarly,  where  husband  and  wife  seek  to  enforce  their  con- 
tract against  the  vendee,  the  filing  of  the  bill  makes  the  remedy  mutual: 
FennoUy  v.  Anderson,  1  Ir.  Ch.  706,  1  Ames  Eq.  Jur.  423,  2  Scott  137.  So,  it  is 
uniformly  held  that  specific  performance  may  be  had  of  a  contract  for  the  sale 
of  hinds  signed  only  by  the  defendant,  and  therefore  not  binding  on  the  plaintiti' 
until  the  bill  is  filed:  Hatton  v.  Gray,  2  Cas.  Ch.  164,  1  Ames  Eq.  Jur.  421. 
2  Scott  129;  Forthman  v.  Deters,  206  111.  159,  99  Am.  St.  Rep.  145,  69  N.  E. 
97. 

The  doctrine  as  to  mutuality  of  remedy  finds  its  most  frequent  application  in 
the  eases  where  the  plaintiff's  promise  calls  for  personal  services,  con- 
tinuous actSj  etc.,  and  is  therefore  of  such  a  character  that  a  court  of 
equity  cannot  conveniently  enforce  a  decree  for  specific  performance:  See 
supra,  §  1402d;  Hills  v.  Croll,  2  Phill.  Ch.  60,  1  Ames  Eq.  Jur.  427,  2  Scott  90,  2 
Keener  216;  Stocker  v.  Wedderburn,  3  Kay  &  J.  393,  2  Keener  801;  Iron  Age 
Tub.  Co.  V.  W.  U.  Tel.  Co.,  83  Ala.  498,  3  Am.  St.  Rep.  758,  3  South.  449.  2 
Keener  834;  Marble  Co.  v.  Ripley,  10  Wall.  339,  19  L.  ed.  955,  Shep.  251;  or 
where  a  decree  would  be  nugatory,  because  the  contract  is  terminable  at  the  will 
of  the  plaintifi'r  Rust"  v.  Conrad,  47  Mich.  449,  41  Am.  Rep.  730,  11  N.  W. 
265,  1  Ames  Eq.  Jur.  435,  2  Scott  144;  Marble  Co.  v.  Ripley,  supra.  If.  how- 
over,  in  the  first  class  of  cases  the  plaintiff  has  already  performed  liis  unen- 
forceable promise,  the  lack  of  mutuality  in  remedy  existing  at  the  inception 
of  the  contract  is  no  defense:  Howe  v.  Watson,  179  Mass.  30,  60  N.  E.  415, 
1  Ames  Eq.  Jur.  429.  In  both  classes  of  cases,  if  defendant's  agreement  con 
tains  a  negative  clause,  the  courts  have  frequently  found  it  possible  to  do 
substantial  justice  by  enjoining  violation  of  his  agreement,  and  making  the 
injunction  conditional  on  the  continued  performance  by  the  plaintiff  of  liis 
own  unenforceable  promise;  if  the  plaintiff  then  fails  to  perform  the  injunc- 
tion will  be  dissolved:  Singer  Sewing  Machine  Co.  v.  Union  Button-Hole  Co., 
1  Holmes  253,  Fed.  Cas.  No.  12,904,  1  Ames  Eq.  Jur.  438,  2  Keener  255;  and 
see  ante,   §    1343. 

*The  effect  of  these  incidents  upon  contracts  in  equity,  and  upon  the  remedy 
of  specific  performance,  has  already  been  discussed.  As  to  parol  evidence  of 
mistake,  fraud,  or  surprise,  see  §§  857-859;  defense  of  mistake  in  suits  for 
specific  performance:  §  860;  proof  of  mistake  on  plaintiff's  part  in  same  suits: 
§§  861-863;  effect  of  statute  of  frauds  on  the  proof  of  mistake,  fraud,  or  sur- 
prise:     §§   864-867. 

As  to  misrepresentations  as  a  deferse,  even  when  not  intentional  or  witii 
knowledge,  see  S  889;  also  §899.  Non-disclosure  of  facts  a  defense:  §  905; 
inadequacy  of  consideration  as  a  defense:  §§  925-928:  illegal  contracts,  in 
general:      §§   929-936:    937-942. 

*  If,  then,  the  contract   itself   is   unfair,   onesided,   unjust,   unconscionable,   or 


§  1405  EQUITY     JUKlbPKUDEKCi:.  S94 

tract  and  the  situation  of  the  parties  must  be  such  that  the  rem- 
edy of  specific  performance  will  not  be  harsh  or  oppressive.'^     The 

affected  by  any  other  inequitable  feature;  or  if  its  enforcement  would  be  oppres- 
sive or  hard  on  the  defendant,  or  would  prevent  his  enjoyment  of  his  o^\^^  rights, 
or  would  work  any  injustice;  or  if  the  plaintiff  has  obtained  it  by  sharp  and 
unscrupulous  practices,  by  overreaching,  by  trickery,  by  taking  undue  advantage 
of  his  position,  by  non-disclosure  of  material  facts,  or  by  any  other  unconsci- 
entious means, — then  a  specific  performance  will  be  refused.  It  necessarily 
folloAvs  that  a  less  strong  case  is  sufficient  to  defeat  a  suit  for  a  specific  per- 
formance than  is  requisite  to  obtain  the  remedy.  See,  also,  ante,  §  948,  as  to 
pecuniary  distress,  illiteracy,  etc.;  Fish  v,  Leser,  69  111.  394,  H.  &  B.  650;  §  949, 
intoxication  which  is  not  a  ground  for  rescission  may  be  a  defense  to  specific 
performance:  Cragg  v.  Holme.  18  Ves.  14,  n.  12.  1  Ames  Eq.  .Tur.  417;  §  928, 
inadeqviacy  of  consideration  coupled  with  other  inequitable  incidents:  Higgins 
V.  Butler,  78  Me.  520,  7  Atl.  276,  1  Ames  Eq.  Jur.  419:  and  see  Friend  v.  Lamb, 
155  Pa.  St.  529,  34  Am.  St.  Rep.  672,  25  Atl.  577.  1  Ames  Eq.  Jur.  408.  2 
Keener  1066,  2  Scott  306  (improvident  contract  of  purchase  by  a  married 
woman)  ;  Kelley  v.  York  Cliffs  Improvement  Co..  94  Me.  374,  47  Atl.  898,  1 
Ames  Eq.  Jur.  402  (contract  of  sale  which  by  inadvertence  of  the  vendor,  per- 
mitted the  plaintiff  to  pay  in  almost  worthless  stock  at  its  par  value,  not 
specifically  enforced)  ;  inadvertence,  as  where  a  covenant  bound  trustees  per- 
sonally in  a  warranty  of  land  sold  under  the  trust:  Wedgwood  v.  Adams,  6 
Beav.  (iOO,  1  Ames  Eq.  Jur.  400:  or  Avliere.  by  the  inadvertent  act  of  a  third 
party,  there  was  a  suppression  of  the  bidding  at  an  auction  sale:  Twining  v. 
Morrice,  2  Bro.  G.  C.  326,  1  Ames  Eq.  Jur.  416. 

"This  rule  generally  operates  in  favor  of  defendants;  but  may  be  invoked 
by  a  plaintiff  when  a  defendant  demands  the  remedy  by  counterclaim  or  cross— 
com])laint.  The  oppression  or  hardship  may  result  from  unconscionable  provisions 
<if  the  contract  itself:  or  it  may  result  from  the  situation  of  the  parties, 
unconnected  with  the  terms  of  the  contract  or  with  the  circumstances  of  its 
negotiation  and  execution ;  that  is,  from  external  facts  or  events  or  circum— 
stances  which  control  or  affect  the  situation  of  the  defendant.  Where,  by  reason 
of  events  since  the  making  of  the  contract,  the  enforcement  of  the  equitable 
remedy  would  produce  results  not  within  the  intent  or  iinderstanding  of  the 
l)arties  when  the  bargain  was  made,  the  court  may,  and  frequently  does,  refuse 
specific  performance:  Gotthelf  v.  Stranahan,  138  N".  Y.  345,  34  N.  E.  286, 
20  I..  R.  A.  4.55,  H.  &  B.  706:  Willard  v.  Tayloe.  8  Wall.  557.  19  L.  ed.  501, 
1  Ames  Eq,  Jur.  404,  H.  &  B.  644.  2  Scott  33,  2  Keener  1026,  Shep.  112  (a 
h-adiiig  case;  court  refused  to  compel  a  vendor  to  accept  greatly  depreciated 
l)a]>cr  currency  in  payment).  This  is  especially  true  where  the  plaintiff's  own 
coiuluct  is  the  cause  of  the  hardship:  Dowson  v.  Solomon,  1  Drew  &  S.  1, 
1  Ames  Eq.  Jui'.  418  (plaintiff  allowed  insurance  to  expire,  gave  no  notice  to 
defendant  and  the  house  burned).  Specific  performance  will  be  refused  where 
it  would  be  of  little  benefit  to  the  plaintiff  and  greatly  injure  defendant: 
Clark  V.  Rochester,  etc.,  R.  Co.,  18  Barb.  350.  1  Ames  Eq.  Jur.  410.  2  Scott 
294:  Miles  v.  Dover  Furnace  Co..  125  X.  Y.  294.  26  N.  E.  261,  2  Keener  1048: 
Anierman  v.  Deane,  132  N.  Y.  355,  30  X.  E.  741.  28  L.  R.  A.  584,  2  Keener 
1050  (restrictive  covenant  not  enforced,  where  character  of  neighborhood  has 
changed:  see  ante.  §  1295):  or  where  it  would  render  the  defendant  liable 
to  a  forfeiture:  Faine  v.  Brown.  2  Ves.  Sr.  307.  1  Ames  Eq.  Jur.  397.  2 
Scott  285;  Peacock  v.  Pen-^on.  11  Beav.  3,")5.  2  Scott  288:  provided  such  liability 
is  not  the  result  of  defendant's  own  conduct:     Helling  v.  Lumlev,  3  De  Gex  &  J. 


895  SrEClFlC    I'EKFUK.MAxXCE    OF    CONTRACTS.  §  1-105 

vendor's  title  must  be  free  from  reasonable  doubt.  In  suits  by  a 
vendor,  the  purchaser  will  not  be  compelled  to  complete  the  con- 
tract.,  unless   the  title  is  free  from  any  reasonable   doubt.''     The 

493,  2  Keener  1022.  But  relief  will  not  be  refused  because  of  changed  eivcuni- 
stances  which  should  liave  been  in  contemplation  of  the  parties  as  possible 
contingencies,  when  they  entered  upon  the  agreement;  ]\Iarble  Co.  v.  Ripley,  10 
\Vall.  339,  357,  19  L.  ed.  955,  Shep.  251 ;  Franklin  Tel.  Co.  v.  Harrison,  145  U. 
S.  459,  12  Sup.  Ct.  900,  3(5  L.  ed.  770,  2  Keener,  1055;  Prospect  Park,  etc.,  Co. 
V.  V.  I.  R.  Co.,  144  N.  Y.  152,  39  N.  E.  17,  26  L.  R.  A.  610,  1  Ames  Eq.  Jur.  83, 
H.  &  B.  641  ;  Adams  v.  Weare,  1  Bro.  C.  C.  567,  1  Ames  Eq.  Jur.  397,  2  Scott, 
286,  2  Keener,  1006;  nor  because  the  defendant  has  an  independent  claim  against 
the  plaintiff,  wliich.  by  reason  of  the  latter's  insolvency,  he  may  be  unable  to 
enforce:  Ante,  S  387 :  Thompson  v.  Winter,  42  Minn.  121,  43  N.  W.  796,  6 
L.  R.  A.  236,  H.  &  B.  654.  2  Keener,  1044.  The  remedy  may  be  refused  because 
it  would  work  injury  to  third  persons:  Curran  v.  Holyoke  Water  Co.,  116 
.Mass.  90;  or  inconvenience  to  the  public,  with  no  corresponding  benefit  to  the 
plaintiff:  Conger  v.  N.  Y.  W.  S.  &  B.  R.  Co.,  120  N.  Y.  29,  23  N.  E.  983,  1 
Ames  Eq.  Jur.  412,  H.  &-  B.  723.  2  Scott,  304,  2  Keener,  1046  (agreement  l»y 
railroad  to  stop  express  trains  near  plaintiff's  house). 

'  This  rule  should  not  be  misunderstood.  It  is  wholly  distinct  from  the  ob- 
jection that  the  vendor  has  no  title  at  all,  or  has  only  a  partial  or  defective 
one, — an  objection  which  may  be  raised  hi/  either  of  the  parties,  and  which,  if 
proved,  would  either  totally  defeat  a  specific  performnace  or  render  it  partial. 
The  rule  of  the  text  assumes  that  the  question  whether  the  vendor's  title  is 
valid  or  imperfect  is  not  definitely  decided  by  the  court.  But  if  there  arises, 
on  the  pleadings  or  from  the  proofs,  a  reasonable  doubt  as  to  the  vendor's  title, 
the -court,  without  deciding  the  question  between  the  parties  then  before  it,  re- 
gards the  doubt  as  a  sufficient  reason  for  not  compelling  the  purchaser  to 
carry  ovit  the  contract  and  accept  a  conveyance.  Where  the  purchaser  is  plain- 
tiff, he  may  elect  to  take  a  defective  and  partial  title.  The  leading  English 
case  is  Pyrke  v.  Waddingham,  10  Hare,  1,  1  Ames  Eq.  Jur.  269,  2  Scott,  361. 
"The  rule  rests  upon  this,  that  every  purchaser  is  entitled  to  require  a  market- 
nl)le  title.  ...  If  the  doubts  arise  upon  a  question  connected  with  the 
general  law.  the  court  is  to  judge  whether  the  general  law  upon  the  point  is 
or  IS  not  settled,  enforcing  specific  performance  iii  the  one  case  and  refusing  it 
ill  the  other.  If  the  doubts  arise  upon  the  construction  of  particular  instrvi- 
ments,  and  the  court  is  itself  doubtful  upon  the  points,  specific  performance 
must,  of  course,  be  refused.  ...  If  the  doubts  which  arise  n.ay  be  afl'ected 
by  extrinsic  circumstances,  which  neither  the  purchaser  nor  the  court  has  the 
means  of  satisfactorily  investigating,  specific  performance  is  to  be  refused.  .  . 
.  .  1  cannot  venture  to  hold  that,  because  this  court  is  of  opinion  in  favor 
of  the  title,  a  purchaser  is  to  be  compelled  to  accept  it.  I  think  that  each  case 
must  depend  upon  the  nature  of  the  objection  and  the  weight  which  the  court 
may  be  disposed  to  attach  to  it;  and  that,  in  determining  whether  specific  per- 
formance is  to  be  enforced  or  not,  it  must  not  be  lost  sight  of  that  the  exer- 
cise by  the  court  of  its  jurisdiction,  in  cases  of  specific  performance,  is  discre- 
tionarA';  and  that  the  court  has  no  means  of  binding  the  question  as  against 
adverse  claimants,  or  of  indemnifying  the  purchaser,  if  its  own  opinion  should 
ultimately  turn  out  not  to  be  well  founded."  See,  also,  Fleming  v.  Burnhani. 
100  X.  Y.  1.  2  Keener.  1138;  Moser  v.  Cochrane,  107  N.  Y.  1,  2  Keener,  1143; 
Abiiott  V.  James.  Ill  X.  Y.  673.  2  Keener.  1146;  Moore  v.  Williams,  115  X.  Y. 
5S6.   12  Am.  St.   Re]).  844.  5   L.  R.  A.  654,  2  Keener,   1149;    Hunting  v,  Damon> 


§    i-tU7  EQUITY   JURISPRUDENCE,  896 

remaining  essential  elements  and  incidents  relate  more  directly 
to  the  remedy  itself,  to  the  actual  performance  directed  by  the 
decree,  and  may  be  briefly  stated  as  follows:  The  contract  must 
bo  such  that  its  specific  enforcement  would  not  be  nugatory.^  Al- 
tliough  the  contract  by  its  terms  can  be  specifically  enforced,  the 
defendant  must  also  have  the  capacity  and  ability  to  perform  it 
by  obeying  the  decree  of  the  court.''  Finally,  the  contract  must  be 
such  that  the  court  is  able  to  make  an  efficient  decree  for  its 
specific  performance,  and  is  able  to  enforce  its  own  decree  when 
niade.^" 

§  1406.  Rights  under  the  Contract — Effect  of  Events  without 
the  Agency  of  the  Parties. — The  effect  of  an  executory  contract 
foi-  the  .sale  of  land,  in  working  an  equitable  conversion,  and  in 
clothing  the  purchaser  with  an  equitable  estate  in  the  land^  and 
the  vendor  with  an  equitable  ownership  of  the  purchase  price,  has 
already  been  described.^  As  soon  as  the  contract  is  finally  concluded, 
although  it  is  wholly  executory  in  form,  these  rights  and  estates 
become  fixed  and  vested.  It  follows,  therefore,  that  the  purchaser, 
lieing  the  equitable  owner,  is  entitled  to  all  the  benefits  and  assumes 
all   the   risks   of  ownership. 

§  1407.  Performance  by  Plaintiff  a  Condition  Precedent. — The 
doctrine  is  fundamental  that  either  of  the  parties  seeking  a  specific 
performance  against  the  other  must  show,  as  a  condition  precedent 
to  his  obtaining  the  remedy,  that  he  has  done  or  offered  to  do. 
or  is  then  ready  and  willing  to  do,  all  the  essential  and  material 
acts  required  of  him  by  the  agreement  at  the  time  of  commencing 
the  .suit,  and  also  that  he  is  ready  and  willing  to  do  all  such  acts 

ino  Mass.  441,  2  Keener,  115G;  Hedderly  v.  Johnson,  42  Minn.  443,  IS  Am.  St. 
Kep.  .521. 

•*  See  ante,  §  1402a. 

^  Total  inahility. — If,  at  the  time  of  the  inability,  the  defendant  is  totally  un- 
able to  perform  because  he  has  no  title  at  all,  or  a  title  completely  defective, 
the  remedy  will  not  be  granted.  The  rule  applies  even  when  the  inability  is 
caused  by  the  defendant's  own  wrongful  act;  as  where  a  vendor,  after  making 
the  contract  and  before  the  suit,  conveyed  the  land  to  a  bona  fide  purchaser  for 
value  and  without  notice.  A  specific  performance  would  be  refused,  although 
the  court  of  equity  might  grant  a  decree  for  damages:  See  ante,  §  237,  n.  3.  But 
if  a  vendor,  after  making  a  contract,  should  enter  into  a  second  agreement  to 
sell  the  land  to  B,  or  should  convey  it  to  B  under  such  circumstances  that  B  is 
iiot  a  bona  fide  purchaser,  etc.,  then  the  prior  vendee  can  compel  a  specific  per- 
formance against  the  vendor  and   B:     See  ante.  §688. 

Partial  incapacity. — Where  the  defendant's  title  fails  as  to  a  part  of  the 
subject-matter,  or  is  partially  defective,  the  plaintiff  may  elect  and  be  entitled 
to  a  specific  enforcement  of  the  contract,  so  far  as  it  can  be  enforced;  and  may 
claim  and  receive  compensation  for  the  deficiency:    See  post,  §  1409  f. 

'"  See  ante,   S  1402  b.  et  seq. 

'See  ante,   §S   3(58,   1161. 


69T  ispjl;cii'ic  pkhfok-MA-vck  oi'  contracts.  §  1407 

as  shall  be  required  of  him  in  the  specific  execution  of  the  contract 
according  to  its  terms.'  /With  respect  to  the  necessity  of  an  actual 
tender  and  a  demand  of  Performance  before  suit  brought,  the  Amer- 
ican decisions  are  somewhat  conflicting,  and  different  rules  seem 
to  prevail  in  different/  states.  The  most  important  of  these  rules 
are  given  in  the  foot'-note.- 

'  In  tlie  language  often  used,  he  must  show  himself  "ready,  willing,  desirous, 
])roinpt.  and  eag^r."  lliere  are  two  apparent  exceptions,  depending  upon  strictly 
tHjuitable  considerations:  1.  A  strict  performance  at  the  very  stipulated  time 
IS  not  always  necessary:  fSee  post,  §  1408;  and  2.  Partial  and  immaterial  fail- 
ures of  title  or  defects  of  the  subject-matter,  if  admitting  of  compensation,  may 
not  prevent  the  vendor  from  enforcing  the  remainder  of  the  agreement:  See 
])ost,  S  1409f. 

Failure  to  perform  conditions  precedent. — In  pursuance  of  this  princ-ii)U' 
equity  will  not  relieve  against  a  failure  to  perform  a  condition  precedent  in  a 
contract,  however  slight  the  failure.  The  right  to  specific  performance  has 
never  vested  for  the  party  in  default:  Earl  of  Feversham  v.  Watson,  Freem. 
Cli.  35,  1  Ames  Eq.  Jur.  ."^17.  Thus,  equity  will  not  enforce  a  contract  of  sale 
wiiere  the  price  is  to  he  lixcd  by  the  parties  or  by  arbitrators  to  be  chosen  by 
the  parties;  and  for  the  plain  reason  that  the  contract  sought  to  be  enforced  is 
incomplete  in  an  essential  particular:  Milnes  v.  Gery,  14  Ves.  400,  407,  2 
Keener,  111;  and  see  ante,  §   1402  c. 

Default  in  option  to  purchase — A'o  relief. — There  can  be  no  relief  against  a 
failure  to  exercise  an  option  after  the  day  named  for  its  expiration,  for  an  op- 
tion is  no  more  than  an  offer  to  sell,  which  the  offerer  is  bound  to  keep  open 
during  the  time  set,  but  which  expirees  with  that  time,  leaving  nothing  for 
equity  to  operate  upon:  Gannett  v.  Albree,  103  Mass.  372,  1  Ames  Eq.  Jur.  321; 
Lord  Ranelagh  v.  Melton,  2  Drew  &  S.  278,  1  Ames  Eq.  Jur.  319. 

\'e)tdor  as  plaintiff;  at  what  time  he  must  furnish  a  good  title. — It  is  a 
familiar  application  of  the  principle,  as  to  performance  by  the  plaintifi",  that 
the  vendor  cannot  force  fierformance  upon  the  purchaser,  unless  he  is  able  to 
give  a  good  title  to  the  subject-matter.  Where,  however,  the  vendor  gets  in 
tile  title  before  the  decree,  the  doctrine  of  equity  is,  when  time  is  not  of  the 
essence,  a  decree  Mill  be  made  against  the  purchaser,  if  -the  seller  can  make  a 
good  title  at  the  time  of  decree,  unless  there  has  been  bad  faith,  or  an  improper 
s])fculation  attempted.  The  weight  of  authority  supports  this  rule:  Langford 
v.  Pitt,  2  P.  Wins.  G29,  2  Keener,  333,  2  Scott,  405;  Pincke  v.  Curtis,  4  Bro. 
C.  C.  329,  331,  2  Scott.  428;  Bruce  v.  Tilson,  25  N.  Y.  194,  1  Ames  Eq.  Jur. 
345,  2  Keener,  IISO.  2  Scott,  355;  although  there  are  several  jurisdictions 
wiiich  hold  that,  if  the  plaintiff  could  not  make  a  good  title  at  the  time  of  Ibe 
agreement,  specific  performance  will  be  denied  him  on  the  ground  of  lack  of 
nmtuality:  Norris  v.  Fox,  45  Fed.  406,  1  Ames  Eq.  Jur.  426;  Ten  Eyck  v.  Man- 
ning, 52  N.  J.  Eq.  47,  27  Atl.  900,  2  Keener,  849.  These  latter  cases  are  incon- 
sistent with  the  view  of  the  mutuality  rule  that  is  best  supported  by  authority 
and  on  principle;  since  at  the  time  of  the  decree  the  defendant  is  not  left  in  any 
inequitable  position. 

-  Tender,  when  necessary. — In  general,  the  rules  of  equity  concerning  the  ne- 
cessity of  an  actual  tender  are  not  so  stringent  as  those  of  the  law.  The  fol- 
lowing special  rules  seem  to  be  settled:  1.  An  actual  tender  by  the  plaintiff 
IS  unnecessarj-  when,  from  the  acts  of  the  defendant,  or  from  the  situation  of 
the  property,  it  would  be  wholly  nugatoiy.  Thus,  if  at  the  time  fixed  the  vendor 
57 


§  1408  EQUITY     JTRISPRUDEXCE.  898 

§  1408.     Time  as  Affecting  the  Right   to  a  Performance. — The 

stipulations  concerning  time  of  performance  in  a  contract  are  re- 
garded by  equity  either  as  immaterial,  or  as  essential,  or  as  mate- 
rial. In  all  ordinary  cases  of  contract,  equity  does  not  regard  time 
as  of  the  essence  of  the  agreement.  In  all  ordinary  cases  of  con- 
tract for  the  sale  of  land,  if  there  is  nothing  special  in  its  objects, 
subject-matter,  or  terms,  although  a  certain  period  of  time  is  stipu- 
lated for  its  completion,  or  for  the  execution  of  any  of  its  terms, 
equity  treats  the  provision  as  formal  rather  than  essential,  and  per- 
mits a  P'driy  who  has  suffered  the  period  to  elapse  to  perform 
such  acts  after  the  prescribed  date,  and  to  compel  a  performance 
by  the  other  party  notwithstanding  his  own  delay. ^  Time  essential: 
Time  may  be  essential.  It  is  so  whenever  the  intention  of  the 
parties  is  clear  that  the  performance  of  its  terms  shall  be  accom- 
plished exactly  at  the  stipulated  day.  The  intention  must  then 
govern.  A  delay  cannot  be  excused.  A  performance  at  the  time 
is  essential ;  any  default  will  defeat  the  right  to  a  specific  enf orce- 

is  unable  to  convey,  by  reason  of  a  defect  in  his  title,  etc.:  Hall  v.  Wliittier,  10 
11.  1.  530,  2  iScott,  323.  2.  Where  the  stipulations  are  mutual  and  dependent, — 
tliat  is,  where  the  deed  is  to  be  delivered  upon  payment  of  the  price, — an  actual 
tender  and  demand  by  one  party  is  necessary  to  put  the  other  in  default,  and  to 
cut  off  his  right  to  treat  the  contract  as  still  subsisting:  Hvibbell  v.  Von 
Schoening.  49  N.  Y.  326,  331,  2  Keener,  1105,  2  Scott,  350.  3.  Time,  essential: 
A\  here  the  time  of  payment  by  the  vendee  is  made  essential,  and  a  fortiori  where- 
if  his  payments  are  not  made  on  the  exact  day  named,  the  vendor  may  treat  the 
eoiitnict  as  at  an  end,  the  vendee  must  make  an  actual  tender  of  the  price  and 
a  demand  of  the  deed  at  a  specified  time.  The  same  is  true  of  the  vendor  when 
the  time  of  conveying  is  made  essential.  This  is  the  very  meaning  of  time 
being"  of  tlie  essence  of  the  contract:  Wells  v.  Smith,  2  Edw.  Ch.  78,  2  Scott, 
317,  2  Keener,  1082.  Time  not  essential:  Concerning  the  necessity  of  actual 
tender  in  contracts  in  which  time  is  not  essential,  the  American  decisions  are 
directly  conflicting.  According  to  one  group  of  cases,  the  strict  legal  rule  is 
enforced.  Where  the  stipulations  are  mutually  dependent,  the  plaintiff  must 
make  an  actual  tender,  and  must  demand  performance  before  bringing  his  suit. 
Some  of  the  cases,  however,  dispense  with  the  demand,  and  only  require  a 
tender.  Suits  by  the  vendee:  Hall  v.  Whittier,  10  R.  T.  530,  2  Scott,  323. 
Sails  by  vendor:  Corbas  v.  Teed,  69  111.  205,  2  Scott,  481.  Another  group  of 
decisions  adopts  a  rule  more  in  accordance  with  the  principles  of  equity,  viz., 
tliat  in  such  contracts  an  actual  tender  or  demand  by  the  plaintiff,  prior  to  the 
suit,  is  not  essential.  It  is  enough  tliat  he  was  ready  and  willing,  and  offered,, 
at  the  time  specified,  and  even  that  he  is  ready  and  willing  at  the  time  of 
bringing  the  suit,  unless  liis  rights  have  been  lost  by  laches,  and  that  he  offers 
to  jierform  in  his  pleading.  The  plaintiff's  performance  will  be  provided  for 
in  the  decree,  and  liis  previous  neglect  will  only  affect  his  right  to  costs. 
Suits  by  vendee:  Bruce  v  Tilson,  25  X.  Y.  194.  197.  203.  1  Ames  Eq.  Jur.  345, 
2  Scott,  355,  2  Keener.  1180.  Siiits  by  vendor:  Rutherford  v.  Haven.  11  Towa, 
587.  1  Ames  Eq.  Jur.  342. 

'Seton  v.   Slade.  7   Ves.  265.  271,  2   Scott,  332:   Parkin  v.  Thorold,   16  Beav. 
59.   1   Ames  Eq.  Jur.  327. 


85iy  SPIXIFIC    PKKFOlf.MAXCK    OF    COXTKACTS.  §  1408 

inent.-  'Time  nuiterial :  Althoui;li  time  is  not  ordinarily  essential, 
yet  it  is,  as  a  general  rnle,  material.  In  order  that  a  det'anlt  may 
not  defeat  a  party's  remedy,  the  delay  which  occasioned  it  )inist 
he  explained  and  accounted  for.  The  doctrine  is  fundamental  that 
a  party  seeking  the  remedy  of  specific  performance,  and  also  the 
party  who  desires  to  maintain  an  objection  founded  upon  the  other's 
laches,  must  show  himself  to  have  been  "ready,  desirous,  prompt, 
and   eager."" 

'  '"Time  may  be  made  essential  by  express  stipulation.  Xo  particular  form 
is  necessary,  but  any  clause  will  have  the  efl'ect  which  clearly  provides  that  the 
contract  is  to  be  null,  if  the  fulfillment  is  not  within  the  prescribed  time." 
Seton  V.  Slade,  7  \"es.  Jr.  2G5,  271,  273,  2  Scott,  332;  Sowles  v.  Hall,  62  Vt. 
247.  22  Am.  St.  Rep.  101,  20  Atl.  810,  2  Keener,  1117.  "Time  may  become  es- 
sential from  the  subject-matter,  or  object  of  the  contract;  c.  g.,  where  the  value 
of  the  subject-matter  necessarily  fluctuates  and  changes  with  the  mere  lapse 
of  time."  Taylor  v.  Longworth,  14  Pet.  172,  174,  10  L.  ed.  405;  from  the  situa- 
tion of  the  parties  in  relation  to  subject-matter;  as  King  v.  Ruekman,  24  N.  J. 
Kq.  316,  351,  2  Keener,  390;  the  particvilar  object  of  vendee;  as  in  Tilley  v. 
Thomas,  L.  1\.  3  Ch.  App.  61,  1  Ames  Eq.  Jur.  336,  2  Scott,  345,  2  Keener,  1001, 
Slu'p.  254 ;  nature  of  property, — a  lease  of  mines :  MacBryde  v.  Weekes,  22 
Reav.  533,  2  Keener,  1085.  Though  time  was  originally  of  the  essence  of  the 
contract,  yet  the  defendant  may  waive  his  right  to  insist  upon  strict  perform- 
ance, either  expressly  or  by  acquiescence  in  plaintifi''s  laches:  Webb  v.  Hughes, 
L.  II.  10  Eq.  Cas.  281,  2  Keener,  1101.  Time,  not  originally  of  the  essence,  may 
be  made  essential  where  one  of  the  parties  delays  in  fulfilling,  and  the  other 
party,  by  a  notice,  prescribes  a  period  within  which  the  contract  nmst  be  com- 
l)leted,  or  else  be  abandoned;  but  this  period  must  be  a  reasonable  one:  Parkin 
v.  Thorold,  16  Beav.  59,  1  Ames  Eq.  Jur.  327;  MacBryde  v.  Weekes,  supra; 
Webb  v.   Hughes,   supra. 

Efl'ect  of  forfeiture  clause  in  the  contract. — Contracts  often  contain  a  clause 
that,  if  payment  is  not  made  at  the  day,  the  defaulting  vendee  shall  forfeit  all 
l>ayments  previously  made  and  also  lose  his  right  to  the  land.  In  England  and 
most  of  the  states  such  a  clause  will,  if  possible,  be  considered  as  a  stipulation 
in  the  nature  of  a  penalty  for  security  of  performance,  and  specific  performance 
will  be  decreed  against  the  vendor  with  compensation  for  delay  by  interest  ou 
tile  purchase-money:  Vernon  v.  Stephens,  2  P.  Wms.  66,  1  Ames  Eq.  Jur.  338; 
Kdgcrton  v.  Peckham,  11  Paige,  351,  2  Scott,  337.  In  other  jurisdictions,  how- 
ever, equity  refuses  to  relieve  against  the  forfeiture  in  behalf  of  the  party  thus 
in  tlefault:  Heckard  v.  Sayre,  34  111.  142,  1  Ames  Eq.  Jur.  340;  Glock  v.  How- 
ard, etc.,  Co.,  123  Cal.  1,  69  Am.  St.  Rep.  17,  55  Pac.  713,  43  L.  R.  A.  199;  unless 
the  forfeiture  is  waived  by  words  or  conduct:  Cheney  v.  Libby,  134  U.  S.  68, 
If)  Sup.  Ct.  498,  33  L.  ed.'siS,  H.  &  B.  695. 

'  Hiihbell  V.  Von  Schoening.  49  X.  Y.  326,  2  Scott,  3,50,  2  Keener,  1105;  South- 
eastern Co.  V.  Knott,  2  Keenei-,  1177.  To  entitle  the  plaintiff  to  specific  per- 
formance in  general,  lie  must  not  have  been  grossly  negligent:  Hubbell  v.  \(m 
Schoening,  49  N.  Y.  326,  2  Scott.  350,  2  Keener,  1105;  the  delay  must  not  have 
been  too  great:  Combes  v.  Scott.  76  Wis.  602,  45  N.  W.  532.  H.  &  B.  682.  2 
Scott.  357,  2  Keener,  1194  (delay  of  six  years)  ;  nor  must  it  have  seriously  injured 
defendant's  interests:  Pincke  v.  Curtis,  4  Bro.  C.  C.  329,  331,  2  Scott,  428;  and  the 
plaintiff  must  show  a  reasonable  excuse  for  the  default:  Brown  v.  Cuarantee  Trust 
Co..  128  C.  S.  403.  9,  Sup.  Ct.  127.  32  L.  cd.  468,  2  Keener,  1109;  Hubbell  v.  Von 


§  1409  EQUITY     JL-KI8Pi;UDEXCE.  900 

§  1409.     Enforcement  of  Verbal  Contracts  Part  Performed. — The 

vloetrine  was  settled  at  an  early  day  in  England,  and  has  been  fully 
adopted  in  nearly  all  the  American  states,  that  a  verbal  contract 
for  the  sale  or  leasing  of  land,  or  for  a  settlement  made  upon 
consideration  of  marriage,  if  part  performed  by  the  party  seeking 
the  remedy,  may  be  specifically  enforced  by  courts  of  equity,  not- 
withstanding the  statute  of  frauds.^  The  ground  upon  which  the 
Scliooiiinj^-.  49  N.  Y.  320,  2  Keener,  1105,  2  Scott,  350.  Any  indication  of  in- 
tention of  abandonment  of  the  contract  by  either  party  defeats  his  right  to  spe- 
cific performance:  Benedict  v.  Lynch,  1  Johns.  Ch.  370,  2  Keener,  1074.  Mere 
lapse  of  time  may  amount  to  evidence  of  such  an  intention:  Lloyd  v.  Collett, 
4  Bro.  C.  C.  4()!),  2  8cott,  329;  Benedict  v.  Lynch,  supra;  unless  there  is  acquies- 
cence in  the  long  delay:  Benedict  v.  Lynch,  supra.  Where  the  delay  of  the 
vendor  or  vendee  in  seeking  performance  is  for  a  speculative  purpose,  to  await 
until  time  shall  determine  whether  or  not  it  is  to  his  advantage  to  have  the 
benefit  of  the  contract,  it  is  held  by  a  considerable  group  of  cases  that  equity 
will  not  aid  him  by  any  relief  against  liis  failure  to  perform,  whatever  the 
situation  otherwise:  McCabe  v.  Matthews,  155  U.  S.  550,  556,  15  Sup.  Ct.  190, 
39  L.  ed.  257,  2  Keener,  1199.  in  the  following  cases  delay  on  the  part  of  the 
vendor,  phiintiil,  was  held  not  material:  Pincke  v.  Curtis,  supra  (no  damage  to 
vendee,  and  good  title  could  be  made  in  a  reasonable  time)  ;  in  the  following  it 
was  heUl  material  and  the  remedy  was  refused:  Harrington  v.  Wheeler,  4  Ves. 
Jr.  GSG,  2  Scott,  331  (seven  years)  ;  Lloyd  v.  Collett,  supra  (his  conduct  evi- 
dence of  abandonment  of  the  contract).  Delay  on  part  of  .vendee,  plaint ifl', 
held  not  material  in  Edgerton  v.  Peckham,  11  Paige  Ch.  351,  2  Scott,  3.^7;  Hub- 
bell  V.  Von  Schoening,  supra;  Day  v.  Hunt,  112  N.  Y.  191.  19  N.  E.  414,  2 
Keener,  1114;  hekl  material,  and  relief  refused,  in  Mackreth  v.  Marlar,  1  Cox, 
2(50,  2  Scott.  328  (five  years)  ;  Benedict  v.  Lynch,  supra  (no  sufficient  excuse)  ; 
McCabe  v.  Matthews,  supra    (speculative  delay  of  nine  years). 

^Fundamental  ground  of  the  jurisdiction. — The  ground  is  equitable  fraud; 
not  an  antecedent  fraud  in  entering  into  the  contract,  but  a  fraud  inhering 
in  the  consequence  of  setting  up  the  statute  as  a  defense.  If  the  defendant 
knowingly  permits  the  plaintiff  to  do  acts  in  part  performance  of  the  verbal 
agreement,  acts  done  in  reliance  on  the  agreement,  wliich  change  the  relations 
of  the  parties  and  prevent  a  restoration  to  their  former  condition,  it  would  be  a 
virtual  frautl  for  the  defendant  to  intei'pose  the  statute  as  a  defense,  and  thus 
to  secure  for  hin)self  the  benefit  of  the  acts  of  part  performance,  while  the 
plaintiff  would  be  left  not  only  without  adequate  remedy  at  law,  but  also  liable 
for  damages  as  a  trespasser:  See  ante,  §§804-867,  921,  where  this  principle 
is  discussed,  it  follows  from  this  principle  that  the  acts  of  part  performance 
must  be  done  by  the  party  seeking  to  enforce  the  contract,  and  must  be  done 
in  pursuance  of  the  contract,  and  with  the  design  of  carrying  the  same  into 
execution:  iind  nuist  be  done  with  the  consent,  express  or  implied,  or  knowl- 
edge, of  the  other  party.  It  is  also  an  important  principle  of  the  English,  and 
many  American  cases,  that  the  act  of  part  performance  must  unequivocally,  and 
without  the  aid  of  parol  testimony  to  explain  it,  point  to  the  existence  of  a 
contract  relating  to  the  specific  land  in  question:  Maddison  v.  Alderson,  L.  R. 
8  App.  Cas.  467,  1  Ames  Eq.  Jur.  295,  2  Scott,  210,  2  Keener.  675.  Shep.  287.  "It 
is  in  genei-al  of  the  essence  of  such  an  act  that  the  courts  shall,  by  reason  of 
the  act  itself,  without  knowing  whether  there  was  an  agreement  or  not,  find 
the  parties  unequivocally  in  a  position  difl'erent  from  that  which,  according 
to   their   le^al    riiihts,   thev   would    be   in   if  there  were   no   contrnct.    .    .   .   But 


901  SPKCIFIC    rKHFOUMAXCE    OF    CONTKAUTS.  §  l-lOlJa 

remedy  in  such  eases  rests  is  that  of  equitable  fraud.  It  would  be 
a  virtual  fraud  for  the  defendant,  after  permitting  the  acts  of  part 
performance,  to  interpose  the  statute  as  a  bar  to  the  plaintiff's 
remedial  right.  The  acts  of  part  performance,  therefore,  in  order 
to  satisfy  this  principle,  must  be  done  in  pursuance  of  the  contract, 
and  must  alter  the  relations  of  the  parties.  The  most  important 
acts  which  constitute  a  sufficient  part  performance  are  actual  pos- 
session, permanent  and  valuable  improvements,  and  these  two  com- 
bined. 

§  1409a.  Same.  Acts  of  Part  Performance — Possession — Im- 
provements.—The  mere  delivery  and  taking  of  possession  in  pui'sii- 
ance  of  the  agreement  is,  by  the  weight  of  authority,  sufficient  part 
performance  to  warrant  equity  in  granting  relief.^  This  is  rested 
upon  the  ground  that  ''the  acknowledged  possession  of  a  stranger  on 
the  land  of  another  is  not  explicable,  except  on  the  supposition  of 
an  agreement,  and  has,  therefore,  constantly  been  received  as  evi- 
dence of  an  antecedent  contract,  and  as  sufficient  to  authorize  an 
inquiry  into  its  terms."^  The  possession  must  be  actual,  notorious 
and  exclusive,"  and  must  be  taken  with  the  consent  or  acquies- 
cence of  the  vendor.*  Since  the  possession  must  be  taken  in  pur- 
suance of  contract,  possession  taken  prior  to  the  contract  or  pre- 
paratory to  the  contract  is  not  sufficient.^  A  mere  holding  over 
by  a  tenant  after  the  expiration  of  his  lease  is  not  sufficient  part 
performance  to  take  the  case  out  of  the  statute.*'  Where,  however, 
there  is  a  change  in  the  terms  of  the  tenancy,  as,  for  instance,  in 

un  act  which,  though  in  truth  done  in  pursuance  of  a  contract,  admits  of  ex- 
planation without  supposing  a  contract,  is  not  in  general  admitted  to  consti- 
tute an  act  of  part  performance  taking  the  case  out  of  the  statute  of  frauds; 
as,  for  example,  the  payment  of  a  sum  of  money  alleged  to  be  purchase  mone_y." 
"The  payment  of  a  sum  of  money  is  an  equivocal  act,  not  (in  itself)  imtil  the 
connection  is  established  by  parol  testimony,  indicative  of  a  contract  concern- 
ing  land." 

^  Butcher  v.  fStapely,  1  Vern.  363,  1  Ames  Eq.  Jur.  279,  2  Scott,  188,  2  Keener, 
022 :  Clinan  v.  Cooke,  2  Schoale-  &  L.  22,  41,  2  Scott,  182,  2  Keener,  G28  (dictum)  j 
Gallagher  v.  Gallagher,  31  \V.  Va.  9,  5  S.  E.  297,  2  Keener,  696. 

-  Morphett  v.  Jones,   1   Swanst.   172. 

■'Gallagher  v.  Gallagher,  31  W.  Va.  9,  5  S.  E.  297,  2  Keener.  696. 

*  Purcell  v.  Miner,  4  Wall.  513,  18  L.  ed.  435,  2  Scott,  200.  She]).  272  (this 
requirement  not  satisfied  by  proof  of  a  scrambling  and  litigious  possession)  ; 
Nibcrt  V.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl.  252,  2  Keener,  722. 

^  For  examples  of  acts   of   preparation  held    insufficient,   see   Clerk  v.    Wright. 

1  Atk.  12,  1  Ames  Eq.  Jur.  294;  Nibert  v.  Baghurst,  47  N.  J.  Eq.  201,  20  Atl. 
252,  2   Keener,  722. 

"  Such  act  is  not  unequivocnl,  but  may  point  to  a  tenancy  at  will  equally  as 
well  as  to  an  express  agreement  to  renew  the  lease:  Smith  v.  Turner,  Prec.  Ch. 
501.  1   Ames  Eq.  .Inr.  282;  Wills  v.  Stradling,  3  Ves.  378,  1  Ames  Eq.  Jur.  291, 

2  Scott,  201.  2  Keener,  626;  ]Maddison  v.  Alderson,  L.  R.  8  App.  Cas.  295,  1 
Ames  Eq.  Jur.  295,  2  Scott,  210,  2  Keener,  675,  Shep.  287    (dictum). 


§  l40!Jb  EQUITY  jui;ispnrni:xci:.  903 

the  amount  of  rent  paid,  or  where  the  tenant  makes  substantial 
repairs  or  improvements,  sueli  circumstance  in  connection  with  the 
possession  is  sufficient  to  warrant  relief."  Possession  obtained 
wrongfully  is,  of  course,  no  ground  for  relief,  for  it  does  not  refer 
to  any  contract  whatever.*  While  the  weight  of  authority  un- 
doubtedly supports  the  view  that  possession  alone  is  sufficient  to 
take  a  case  out  of  the  operation  of  the  statute  of  frauds,  it  will 
be  found  that  in  a  large  majority  of  the  cases  additional  circum- 
stances have  been  present ;  as,  payment  of  the  whole  or  part  of 
the  purchase  price,^  or  the  making  of  valuable  improvements. ^"^ 

§  1409b.  Same.  Payment. — It  is  the  generally  accepted  doc- 
trine that  payment  of  the  whole  or  a  part  of  the  purchase  price  is 
not  sufficient  in  itself  to  take  a  case  out  of  the  operation  of  the 
statute  of  frauds.^  Therefore,  a  conveyance  by  a  plaintiff  in  pur- 
suance of  an  agreement  for  an  exchange  of  lands  is  not  sufficient 
l)art  performance  to  warrant  the  court  in  granting  equitable  relief. - 

'Increased  rcjif.— Wills  v.  Stradlino-,  .3  Ves.  .378.  1  Ames  Eq.  Jiir.  291,  2  Scott, 
201.  2  Keener,  02(5;  Xiinn  v.  Fabian.  L.  R.  1  Cli.  .S.5.  2  Keener,  630. 

I'epairs  and  improvements. — Shindy  v.  .TolliR'e,  5  Mylne  &  C.  167,  1  Ames  Eq. 
Jiir.  289;  Morrison  v.  Herrick,  130  111.  631,  20  X.  E.  537.  2  Keener.  706.  See, 
also.  Wills  V.  Stradlino-,  3  Ves.  378,  snpra.  But  see  Frame  v.  Dawson,  14  Ves. 
3S6.  1  Ames  Eq.  Jur.  283,  2  Scott,  202.  2  Keener,  632. 

H'ole  V.  White,  1  Bro.  C.  C.  409.  1  Ames  Eq.  Jnr.  282;  Fiucell  v.  Miner,  4 
Wall.   513,   IS   L.  ed.  435,  2  Scott,  206,  Shep.  272. 

M'ond  V.  Sheean.  132  111.  312.  23  X.  E.  1018.  8  L.  R.  A.  414,  2  Keener,  715; 
Dunckel  v.  Dunekel.   141   X.  Y.  427.  36  X.  E.  405,  2  Keener.  735. 

^"Morrison  v.  Herrick,  130  111.  631,  22  X.  E.  537.  2  Keener.  706.  As  to  the 
nature  of  the  improvements,  see  Gallagher  v.  Gallagher,  31  W.  Va.  9,  5  S.  E. 
297.  2  Keener,  696.  Possession,  coupled  with  both  the  making  of  improvements 
and  the  payment  of  part  of  the  purchase  jjrice  is,  of  course,  sufficient :  Miller 
V.  Ball.  64  X.  Y.  286,  2  Keener,  657,  2  Scott,  196. 

Modifications  and  rejection  of  the  doctrine. — The  rule  that  delivery  and  ac- 
c('])tance  of  possession  alone  are  sufficient  to  take  a  case  out  of  the  statute  is 
not  accepted  by  all  the  states.  See  Burns  v.  Daggett,  141  Mass.  368.  6  X.  E. 
727,  1  Ames  Eq.  Jur.  284  (acts  must  be  such  that  adequate  compensation  can- 
not to  be  made  except  by  a  conveyance)  ;  Pond  v.  Sheean,  132  111.  312,  23  X.  E. 
1018,  8  L.  R.  A.  414.  2  Keener  715  (part  payment  necessary)  ;  and  in  a  few  states 
the  doctrine  of  part  performance  is  wholly  rejected:  Albea  v.  Griffin,  2  Dev.  &  B. 
9.  1  Ames  Eq.  Jur.  288. 

'Clinan  v.  Cooke,  1  Schoales  &  L.  22.  2  Scott.  182.  2  Keener,  628  (stating 
reasons  for  the  rule)  ;  IMaddison  v.  Alderson.  L.  E.  8  App.  Cas.  467,  1  Ames  Eq. 
.lur.  295,  2  Scott,  210,  2  Keener,  675,  Shep.  287;  Lord  Pengall  v.  Eoss,  2  Bi\. 
Abr.  46,  1  Ames  Eq.  Jur.  276;  2  Scott,  180;  Peters  v.  Dickinson,  67  X.  H. 
389.  32  Atl.  154,  2  Keener,  733;  Xibert  v.  Baghurst.  47  X\  J.  Eq.  201,  20  All. 
252.  2  Keener,  722:  Miller  v.  Ball.  64  X.  Y.  286,  2  Scott,  196,  2  Keener,  657; 
Gallagher  v.  Gallagher.  31  W.  Va.  9,  5  S.  E.  297,  2  Keener,  696. 

=  Smith  v.  Hatch,  46  X.  H.  146,  1  Ames  Eq.  Jur.  277  (dictum).  Wliere,  how- 
ever, there  is  in  addition  an  act  of  part  performance  by  the  defendant,  as  by 
taking  possession  of  the  property  conveyed,  the  plaintiff  may  liave  specific  per- 


903  SPKCIFIC    PKItFOKMANC'i;    OF    CONTItACTS.  §  11091) 

AVhile  sueh  a  conveyance  is  referable  to  a  contract,  it  is  not  nec- 
essarily referable  to  a  contract  for  the  land  sought  to  be  recovered. 
Where  the  consideration  is  paid,  not  in  the  form  of  money,  but 
in  the  form  of  personal  services  of  a  character  such  that  they  do 
not  readily  admit  of  a  pecuniary  estimate  or  recompense,  shall  this 
be  considered  an  act  of  part  performance?  On  this  question  the 
American  jurisdictions  are  very  evenly  divided.  On  the  one  hand, 
pjivment  in  services  no  more  points  to  a  contract  concerning  spe- 
ciiie  land  than  does  payment  in  money;  in  fact,  in  the  ordinary 
case, — domestic  services  by  a  relative  or  by  an  adopted  child, — 
the  fact  of  the  services  rendered  gives  rise  to  no  inference  of  any 
contract  whatever.-'  On  the  other  hand,  if  equitable  fraud  be  taken 
as  the  ba.sis  of  the  doctrine,  and  the  impossibility  of  restoring  the 
complainant  to  the  situation  in  which  he  was  before  the  contract 
was  made,  the  rendering  of  services,  for  a  long  term  of  years, 
the  value  of  which  cannot  be  estimated  by  any  pecuniary  stand- 
ard, must  be  considered  an  act  of  part  performance  of  the  highest 
character;  the  fraud  upon  the  complainant  is  often  greater  than 
that  resulting  from  either  the  taking  of  possession  or  the  making 
of  improvements.^  The  promise,  in  these  cases,  has  nearly  always 
been  to  make  a  will  devising  lands  to  plaintiff;  the  services  ren- 
dered, the  care  of  an  aged  or  invalid  relative,  often  coupled  with 
an  abandonment  of  the  plaintift''s  previous  home  or  occupation; 
or.  in  a  large  group  of  cases,  the  entire  change  of  situation  re- 
. suiting  from  a  virtual  adoption  of  the  plaintiff',  when  a  minor, 
into  the  promisor's  family,  and  the  discharge  of  the  domestic  du- 
.ifs  and  obligations  of  affection  flowing  from  such  relation."' 

fonnance:  Biyelow  v.  Ainies,  108  U.  S.  10,  1  Sup.  Ct.  83.  27  L.  ed.  631,  2 
Keener,  ()G4. 

■■.Maddison  v.  Aldersoii,  L.  R.  8  App.  Cas.  (H.  of  L.)  467,  1  Ames  Eq.  .Tur. 
2!).-).  2  Scott,  210.  2  Keener.  075,  Shep.  287;  Pond  v.  Sheean,  132  111.  312.  23 
-N.  K.  1018.  8  L.  R.  A.  414,  2  Keener,  715  (adoption  of  child)  ;  Shahan  v.  Swan, 
48  Ohio  St.  25.  20  Am.  St.  Rep.  517.  20  X.  E.  222.  2  Scott.  219.  2  Keener.  720 
(adoption;  but  court  intimates  that  there  may  be  part  jterformance  by  services 
in  exceptional  cases). 

*See  supra,  §  1400,  end  of  note;  Owens  v.  jMcXally.  113  Cal.  444.  45  Pac.  710. 
33  L.  K.  A.  300  (but  specific  performance  refused,  since  it  would  be  hardship 
on  promisor's  \\ife,  wlio  married  him  in  ignorance  of  the  agreement)  ;  Svan- 
burg  V.  Fosseen.  75  :\rinn.  350,  74  Am.  St.  Rep.  400,  78  N.  W.  4,  43  L.  R.  A. 
427:  Kofka  v.  Rosjcky.  41  Xeb.  328,  43  Am.  St.  Rep.  685,  59  N.  W.  788,  25 
L.  R.  A.  207  (adoption  agreement)  ;  Vreeland  v.  Vreeland,  53  N.  J.  Eq.  387, 
32  Atl.  3  (care  of  aged  parent)  ;  Lothrop  v.  Marlle,  12  S.  D.  511.  76  Am.  St. 
Rep.  626.  81  X.  W.  885  (services  consisted  merely  in  nursing  a  repulsive  in- 
valid for  a  few  days). 

^  .]fi.<ircnaneous  actt  of  part  perforoirnirr. —  WhWe  possession,  and  possession 
coupled  with  payment,  or  the  making  of  valuable  improvements,  are  the  most 
frequent  acts  of  part   performance  recognized  as  sufficient  to  warrant  equitable 


§  1409e  EQUITY  JURISPRUDENCE.  904 

§  1409c.  Oral  Promise  to  Give. — A  parol  promise  by  one  owning 
lands  to  give  the  same  to  another  will  be  enforced  in  equity,  when 
the  promisee  has  been  induced  by  the  promise  to  go  into  possession, 
and,  with  the  knowledge  of  the  promisor,  has  made  comparatively 
large  expenditures  in  permanent  improvements  upon  the  land.^ 
The  ground  of  the  jurisdiction  is  that  a  failure  to  convey  after 
the  donee  has  made  a  change  of  position  would  amount  to  fraud. 
Equity  does  not  ordinarily  interfere  to  enforce  voluntary  agree- 
ments; but  in  this  case  the  courts  have  construed  a  consideration 
into  the  agreement.^  Such  a  promise  may  be  enforced  against 
an  executor  or  administrator,  as  well  as  against  the  original  promis- 
or.^ 

§  1409d.  Same.  Marriage  not  Part  Performance. — In  cases  of 
contracts  made  in  consideration  of  marriage  it  is  almost  universally 
held  that  marriage  alone  is  not  such  part  performance  as  will  take 
a  case  out  of  the  operation  of  the  statute  of  frauds.^  This  results 
from  the  statute  itself  which  requires  agreements  in  consideration 
of  marriage  to  be  in  writing.  To  hold  marriage  alone  to  be  suffi- 
cient would  render  the  statute  nugatory.  Marriage  coupled  with 
other  acts,  such  as  the  delivery  and  acceptance  of  possession,  may, 
however,   be  sufficient." 

§  1409e.  Specific  Performance  Because  of  Fraud,  Independent 
of  Doctrine  of  Part  Performance. — Independently  of  the  doctrine 
of  part  performance,  relief  may  be  granted  when  the  defendant  has 
l)een  guilty  of  fraud  which  leads  to  an  irretrievable  change  of  po-. 
sition.  Accordingly,  where  a  marriage  is  obtained  under  a  fraud- 
ulent promise  to  convey  property,  the  defendant  may  be  ordered 

relief,  the  courts  have  interfered  in  a  few  other  instances.  Thus,  a  dismissal 
of  certain  actions  at  law  has  been  held  sufficient,  for  the  plaintiff  could  not  be 
placed  in  statu  quo;  Slingerland  v.  Slingerland,  .39  Minn.  197,  39  N.  W.  146,  2 
Keener,  701.  Oral  contract  for  the  conveyance  of  easements  has  been  enforced 
when,  in  pursuance  thereof,  work  has  been  done  in  opening  windows  as  directed 
by  defendant,  and  he  has  been  given  employment:  East  India  Co.  v.  Vincent,  L. 
R.  .3.5  Ch.  D.  ()94.  1  Ames  Eq.  Jur.  310. 

'  Neale  v.  Neale,  9  Wall.  1,  19  L.  ed.  .■)90.  2  Keener,  047;  Seavey  v.  Drake, 
62  N.  H.  393,  1  Ames  Eq.  Jur.  308:  Freeman  v.  Freeman,  43  N.  Y.  34.  3  Am. 
Kep.  657,  1  Ames  Eq.  .Tur.  300,  2  Scott,  20.5,  2  Keener,  6.54 ;  Young  v.  Overbaugh, 
145  N.  Y.  1.58,  39  N.  E.  712,  2  Keener.  743. 

"Freeman  v.  Freeman,  supra;  Seavey  v.  Drake,  62  N.  H.  393.  supra.  It  must 
be  noted  that  the  courts  do  not  here  use  the  term  "consideration"  in  the  sense 
of  something  given  for  a  promise;  it  is  used  rather  in  the  sense  of  something 
done  as  a  result  of  a  promise. 

"  Seavey  v.  Drake,  siipra. 

^Montacute  v.  Maxwell,  1  P.  Wms.  618.  1  Ames  Eq.  .Tur.  274;  2  Keener,  623; 
("aton  V.  Caton,  L.  R.  1  Ch.  App.  137,  2  Keener,  041. 

-  Ungley  v.  Ungley,  L.  R.  5  Ch.  D.  887,  1  Ames  Eq.  Jur.  281,  2  Scott,  193,  2 
Keener,   661. 


yU5  SPECIFIC    rERrOKilAXCE    OF    CONTRACTS.  §  140131" 

to  carry  out  his  contract,'  although,  as  we  have  seen,  marriage 
is  not  a  sufficient  part  performance  to  take  a  case  out  of  the 
statute.  Likewise,  whore  there  is  a  fraudulent  omission  to  have 
an  agreement  reduced  to  writing,  which  induces  an  irretrievable 
change  of  position,  equity  will  grant  relief.-  A  mere  failure  to 
fulfill  a  promise  to  have  an  agreement  reduced  to  writing  is  not 
sufficient,  however,  in  the  absence  of  fraud.'' 

§  1409f.  Partial  Performance  With  Compensation. — Where  the 
vendor  is  unable  to  perform  his  contract  in  its  entirety  either  be- 
cause of  a  deficiency  in  the  ([uantity  or  the  quality  of  the  estate, 
or  because  of  defects  in  his  title  or  interest,  equity  may  give  him 
a  decree  for  specific  performance  with  compensation  or  abatement 
to  the  vendee  for  the  deficiency  or  defect,  if  the  vendor  can  sub- 
stantially perform  his  contract.^  But  specific  perfoniiance  will  not 
be  compelled  against  an  unwilling  vendee  where  the  defect  or  de- 
ficiency i.s  material,  since  that  would  be  to  force  a  new  contract 
upon  the  parties.-  Even  where  the  vendor  is  unable  substantially 
to  perform  his  contract,  the  deficiency  or  defect  being  material,  the 
vendee  may,  at  his  election,  have  specific  performance  with  com- 
pensation or  abatement.  But  where  the  deficiency  is  so  great 
as  practically  to  make  compensation  or  damages  the  main 
object  of  the  suit,  the  vendee  wnll  be  denied  specific  performance 
with  compensation."'     To  be  entitled  to  specific  performance  with 

Mlullett  V.  Halfpenny,  Prec.  in  Ch.  404,  1  Ames  Eq.  Jur.  315;  Peek  v.  Peek, 
77  C'al.  10(5.  11  Am.  St.  Pvep.  244,  19  Pac.  227,  1  L.  R.  A.  185,  1  Scott,  4()3,  2 
Keent-r,  75(). 

=  Woocl  V.  :\Iidoley.  5  De  Gex,  INI.  &  G.  41,  2  Keener,  750,  1  Scott,  4G2  (dic- 
tnm)  :   Peek  v.   Peek,  supra.     See,  also,  ante,  §  921. 

"  W  nod  V.  IVIidjrley,  supra.  For  early  English  cases  contra,  see  Leak  v.  Mor- 
rice.  2  Cas.  in  Ch.  135.  2  Keener,  746;  Hollis  v.  Whiteing,  1  Vern.  151,  2  Keener, 
747.     See,  also,  Cookes  v.  ^Nlasoall,  ^  Vern.  200;  2  Keener,  748. 

*  Small  deficiency  in  fimoinit  of  estate:  Oldfield  v.  Round,  5  Ves.  508,  2 
Scott,  231  (easement  of  foot])ath  across  meadow)  ;  Halsey  v.  Grant,  13  Ves.  73, 
2.  Scott,  379  (encumln-ance  of  rent  charge)  ;  Howland  v.  Norris,  1  Co^  C.  C.  59, 
2  Scott.  371;  Peers  v.  Lambert,  7  Beav.  546,  2  Scott,  375;  Bailey  v.  Piper,  L.  R. 
IS  Kq.  083.  2  Keener,  343.  Small  deficiency  in  quality  of  estate:  King  v.  Bar- 
deau.  0  .lohns.  Ch.  38,  10  Am.  Dec.  312.  2  Scott,  387.  2  Keener,  1123  (two  lots 
.sold  together,  and  Imilding  on  one  lot  projecting  slightly  on  other). 

"Substantial  deficiency  in  amount  or  title:  Drewe  v.  Corp.,  9  Ves.  368,  2 
Scott.  394:  Chicago,  M.  &  St.  P.  R.  R.  v.  Durant.  44  Minn.  SBl,  46  N.  W.  076, 
H.  (X.  J5.  701,  2  Keener,  1211  (title  to  one-half  defective).  Substantial  deficiency 
in  quality:  Perkins  v.  Ede.  16  Rear.  193,  1  Ames  Eq.  Jur.  247,  2  Scott,  376, 
2  Keener.  1128  (a  stri])  of  land  to  which  vendor  could  not  give  title  lay  be- 
tween the  house  and  the  roail).  It  is  enougli.  however,  if  a  defect  in  title  is 
cured  before  the  time  for  the  decree:  HaflVy  v.  Lynch^  143  N.  Y.  241,  38  N.  E. 
298,  If.  &  1',.  703.  2  Keener,  1213.    See  ante.  §  1407,  note  1. 

'nurham  v.  F.egard.  34  Beav.  611,  1  Ames  Eq.  Jur.  395,  2  Scott,  385.  2 
Keener.   120G    (by  mistake  of   viMidor.   estate  of  eleven   thousand   eight    lnindre<l 


§  1410  EQUITY    JUraSPRUDEXCE.  906 

compensation,  the  buyer  must,  generally,  have  been  aware  of  the 
deficiency  at  the  time  of  the  bargain.^ 

It  is  the  rule  in  England  and  in  several  of  the  states  that  a 
husband's  failure  to  convey  the  whole  title  because  of  any  in- 
terest his  wife  may  have,  is  treated  as  an  ordinary  case  of  de- 
fective title;  he  must  therefore,  convey  his  interest  with  compensa- 
tion for  the  amount  of  her  interest,  whether  dower  or  of  other 
nature.'^  But  in  many  jurisdictions  specific  performance  with 
compensation  against  the  vendor  is  denied  in  this  case,  on  the 
ground  that  compulsion  upon  the  husband  would  tend  to  cause 
him  to  procure  his  wife's  conveyance  of  dower  against  her  will.** 

The  court  will  refuse  to  make  a  decree  with  compensation  or 
abatement,  if  it  is  unable  to  compute  fairly  the  value  of  the 
defieienc}"  or  defect.' 

§  1410.  Damages  in  Place  of  a  Specific  Performance. — When 
tlie  impossibility  of  a  specific  performance  is  disclosed  at  the  hear- 
ing, and  the  suit  was  brought  by  the  plaintiff  in  ignorance  of  sueh. 
fact,  the  court  will  award  the  remedy  of  damages.^ 

acres  was  sold  as  estate  of  twenty-one  thousand  seven  hundred  acres).  Chi- 
cago, Mil.  &  St.  Paul  R.  R.  v.  Durant,  44  Minn.  361,  46  N.  W.  676,  H.  &  B. 
701,  2  Keener,  1211  (the  part  that  could  be  conveyed  would  be  relatively  so 
small  "that  compensation  or  damages  would  apparently  be  the  main  object  of  the 
suit" ) . 

^Castle  V.  Wilkinson,  L.  E.  5  Ch.  App.  .5.34,  1  Ames  Eq.  .Tur.  2.52.  2  Scott.  39,5, 
2  Keener,  1208  (purchaser  knowing  of  wife's  interest  cannot  now  compel  husband 
to  convey  his  own  interest  alone,  with  or  without  compensation,  as  liis  contract 
was  to  convey,  vith  liis  wife,  the  whole  estate). 

^Wilson  v.  Williams,  3  -Tur.  X.  S.  810,  2  Scott.  302;  Barnes  v.  Wood.  L.  R. 
8  Eq.  424.   1  Ames  Eq.  .Tur.  249,  2  Scott,  395,  2  Keener.   1228. 

"Hawralty  v.  Warren,  18  N.  -T.  Eq.  124,  128,  90  Am.  Dec.  613.  2  Scott, 
140;  Peeler  v.  Levy  and  Wife,  26  N.  .T.  Eq.  330.  2  Keener,  1236:  Riesz's  Appeal, 
73  Pa.  St.  485,  1  Ames  Eq.  -Tur.  254:  Sternberger  v.  ]\IcGovern,  56  N.  Y. 
12,  2  Keener,  1232;  Graybill  v.  Brugh.  89  Va.  895,  37  Am.  St.  Rep.  894,  17 
S.  E.  558:  21  L.  R.  A.  133,  H.  &  B.  677.  But  see  Young  v.  Paul,  10  N.  J. 
Kq.  401.  64  Am.  Dec.  456,  2  Keener,  1219  (collusion  between  husband  and  wifej 
husband   decreed  to  give  indemnity   against  wife's   inchoate  dower). 

'Sternberger  v.  McGovern,  56  N.  Y.  12,  2  Keener,  1232  (inchoate  dower  in- 
terest cannot  be  estimated  with  fairness  to  vendor)  :  Perkins  v.  Ede,  16  Beav. 
193,  1  Ames  Eq.  Jur.  247,  2  Scott,  376,  2  Keener,  1128;  Rudd  v.  Lascelles 
(1900),  L.  R.  1  Ch.  815.  1  Ames  Eq.  Jur.  256  (restrictive  covenants.  The 
court  says:  "It  is  almost  impossible  to  assess  compensation  for  covenants  of 
this   nature"). 

.'  See  ante,  §   237,  note  3,  for  a  full  statement  of  the  rules  on  this  .subject. 


907  eOMPELLING    TRANSFER    OR    ISSUE   OF    ;iTOCE:.  §  1413 


CHAPTER    SECOND. 

SPECIFIC     ENFOPiCE.AIENT      OF     OBLIGATIONS     ARISING 
FRO'M  TRUSTS  AND  FIDUCIARY  RELATIONS. 

AXAI.YSIS. 

§   1411.     (Teneral   nature,    kind^,   and    classes. 

§   1412.     Suits   against   corporations   to   compel   the   transfer   or   issue   of   stock. 

§  1411.  General  Nature,  Kinds,  and  Classes. — The  nature  and 
objects  of  the  various  remedies  included  in  this  division  are  suffi- 
ciently indicated  by  the  title,  and  need  no  further  description. 
The  remedies  belonging-  to  the  class  are  suits  to  enforce  express 
trusts,  either  private  or  charitable;  suits  to  enforce  resulting  or 
constructive  trusts  by  compelling  a  conveyance  of  the  legal  title; 
suits  against  persons  in  fiduciary  relations ;  suits  against  adminis- 
trators and  executors;  and  suits  against  corporations  and  their 
managing  officers.  The  jurisdiction  to  entertain  these  suits  and 
to  grant  these  remedies  has  been  described  in  previous  chapters.^ 
There  remains  one  particular  remedy  to  be  briefly  considered, — the 
suit  by  a  stockholder  against  a  corporation  to  compel  the  transfer 
or  issue  of  stock, 

§  1412.  Suits  ag-ainst  Corporations  to  Compel  the  Transfer  or 
Issue  of  Stock. — Cases  frequently  arise  where  corporations  or 
joint-stock  companies  refuse  to  recognize  the  rights  of  assignees 
of  stock,  and  make  the  transfers  on  their  books  and  issue  new 
certificates  in  place  of  the  old  ones  presented,  or  where  certificates 
have  been  presented  to  the  company  without  the  owner's  consent 
and  negligence,  and  new  certificates  have  been  issued  instead 
thereof  to  others  purporting  to  be  entitled  thereto.  In  such  cases 
it  is  well  settled  that  although  the  law  may  give  some  remedy,  as 
that  of  damages,  for  the  refusal,  equity  has  jurisdiction  to  compel 
the  corporation  to  make  the  transfer  and  issue  new  certificates  in 
the  one  case,  to  the  lawful  assignee;^  and  in  the  other,  to  decree 
that  the  corporation  replace  the  stock  upon  its  books,  and  issue 
new  certificates  to  the  original  owner,  or  if  it  is  unable  to  do  this 
by  reason  of  its  not  having  or  being  able  to  procure  any  shares, 
to  pay  the  value  of  the  stock.- 

'  See  ante,  concerning  charitable  trusts,  §§  1018-1029;  express  private  trusts: 
§§  1059-1087:  resulting  and  constructive  trusts:  S§  1030-1058;  fiduciaiy  per- 
sons, guardians,  etc.;  §§  1088-1097;  administration  suits:  §§  1152-1154;  suits 
against   corporations   and   their   managing   officers:    §§    1089-1096. 

'Cushman  v.  Thayer  Mfg.   Co.,  76  N.  Y.  .365;   32  Am.  Rep.  315. 

==  Pollock  V.  National  Bank,  7  X.  Y.  274,  57  Am.  Dec.  520;  Pratt  v.  Taunton 
Copper  (\).,  123  Mass.  110,  25  Am.  Rep.  37;  Telegraph  Co.  v.  Davenport,  97 
U.   S.   369. 


1413  EyL'ilY    JLiUariiLDEXCJv  Sl/S 


SIXTH   GROUP. 

REMEDIES  IN  WHICH  THE  FINAL  RELIEF  IS  PECUNIARY, 
BUT  IS  OBTAINED  BY  THE  ENFORCEMENT  OF  A  LIEN 
OR  CHARGE  UPON  SOME  SPECIFIC  PROPERTY  OR  FUND. 


CHAPTER    FIRST.      . 

FORECLOSURE    sriTS— .ALVRS1IALIN(;    SECURITIES— CRED- 
ITORS' SUITS. 

ANALYSIS. 

§   1413.     Nature,    kinds,    and    classes. 

§   1414.     Suits   for   marshaling  of   securities. 

§   1415.     Creitors'    suits. 

§  1413.     Nature,    Kinds,    and   Classes. — The    title    of   this    group 

])lainly  indicates  the  nature  and  ol)jeet  of  the  remedies  composing 
it.  They  are  all  purely  ecjuitable,  and  therefore  belong  to  the 
exclusive  jurisdiction;  because,  although  the  final  relief  is  pecun- 
iary, and  so  resembles  the  ordinary  relief  at  law,  it  is  obtained 
through  pi'eliminary  proceedings,  forming  a  part  of  the  judgment, 
whicli  ])elong  solely  to  the  procedure  and  jurisdiction  of  equity. 
The  group  contains  the  following  species  of  remedies:  Suits  for 
the  foreclosure  by  judicial  sale  of  mortgages  of  real  property; 
suits  for  the  similar  foreclosure  of  mortgages  of  personal  property; 
suits  for  the  similar  foreclosure  of  pledges;  suits  to  enforce  the 
the  various  equitable  liens;  suits  to  enforce  the  equitable  contracts 
of  married  women  upon  their  separate  property;  suits  to  marshal 
securities;  and  creditors'  suits.  The  jurisdiction  to  entertain  most 
of  these  suits — -when  and  between  what  parties  most  of  these 
remedies  will  be  granted — has  already  been  discussed  as  inWj  as 
my  limits  will  permit.^  I  shall  briefly  consider  in  the  present  chai)- 
tei'  mai'shaling  of  securities  and  creditors'  suits. 

'See  ante,  foreclosure  of  mortgages  of  land:  §  1228;  of  mortgages  of  chat- 
tels: §  li.'iO;  of  idedges:  §  1231.  The  enforcement  of  equitable  liens;  arising 
from  express  contract:  SS  1235-37;  from  implied  contract:  S8  1239-1243; 
from  charges  by  will  or  di-vA:  iJS  1245-1247;  grantor's  lien:  SS  1240-12.58; 
vendor's   lien:    §    1262;    vendee's   lien:     §    12(53 ;    deposit  of  title   deeds:    §    1267; 


909  CRKDITORS'  SUITS.  §  1415 

§  1414.  Marshaling  of  securities. — Thn  equitable  remedy  of 
marshaling'  securilie.s,  with  that  oi  marshaling  assets,  depends  upon 
tlie  principle  that  a  person  havinf?  two  funds  to  satisfy  his  de- 
mands shall  not,  by  his  election,  disappoint  a  {)arty  having  but 
one  fund.  The  general  rule  is,  that  if  one  creditor,  by  virtue  of 
a  lien  or  interest,  can  resort  to  two  funds,  and  another  to  one  of 
thein  only, — as,  for  example,  where  a  mortgagee  holds  a  prior 
mortgage  on  two  parcels  of  land,  and  a  subsequent  mortgage  on 
I)ut  one  of  the  parcels  is  given  to  another, — the  former  must  seek 
satisfaction  out  of  that  fund  which  the  latter  cannot  touch.^  If, 
tlierefore,  the  prior  creditor  resorts  to  the  doubly  charged  fund, 
the  subse((uent  creditor  will  be  substituted,  as  far  as  possible,  to 
liis  I'ights.-  These  rules  must  be  taken  with  the  modifications  and 
exceptions  that  in  their  application  the  paramount  encumbrancer 
shall  not  be  delayed  or  inconvenienced  in  the  collection  of  his 
del)t,  for  it  would  be  unreasonable  that  he  should  suffer  because 
sonu^  one  else  has  taken  imperfect  security;'''  that  the  rights  of 
third  parties  shall  not  be  prejudiced;*  and  that  the  parties  them- 
selves are  creditors  of  the  same  debtor.^  The  rules  of  marshaling 
securities  are  applied  under  a  variety  of  circumstances ;  but  gen- 
erally,  in  this  country,  between  mortgagees,  mortgagees  and 
judgment  creditors,  and  between  judgment  creditors. 

§  1415.  Creditors'  Suits. — The  jurisdiction  of  equity  to  enter- 
statutory  liens:  §  12G9.  Suits  to  enforce  the  equitable  contracts  of  married 
women  upon  their  separate  property:  §S  1121-1126.  Although  the  late  Engliali 
cases  hold  that  these  contracts  of  married  women  do  not  create  any  lien,  yet 
tile  whole  remedy  in  form  and  substance  is  exactly  the  same  as  though  there 
was  a  lien,  and  as  though  its  object  was  to  enforce  that  lien.  Furthermore, 
the  American  courts  generally  hold  that  a  lien  is  created.  '•Creditors'  suits" 
belong  to  tliis  group,  because  they  are  based  upon  the  conception  that  an 
c(iuitable  lien  is  created  upon  the  judgment  debtor's  property,  by  means  of  the 
judgment  and  execution  retiu'ned  unsatisfied;  and  this  lien  is  in  reality  enforced, 
although  the  enforcement  may,  perhaps,  require  the  ancillary  remedies  of  can- 
cellation, a  receiver,  etc. 

'  Aldrich  v.  Cooper,  8  Ves.  382.  395,  2  Lead.  Gas.  Eq.  4th  Am.  ed.,  2280,  notes; 
and  see  the  cases  cited  in  the  following  notes. 

'  W  yman  v.  Fort  Dearborn  Nat.  Bank,  181  111.  279,  72  Am.  St.  Rep.  2.59,  54  N.  E. 
114(1.  4S  L.  K.  A.  565;  Hudkins  v.  Ward,  30  W.  Va.  204,  8  Am.  St.  Rep.  22,  3  S.  E. 
COO. 

■  Farwell  v.  BigeloAv,  112  Jlicli.  285,  70  N.  W.  579;  compare  Gotzian  v. 
Shaknian,  89  Wis.   52,  46  Am.   St.  Rep.  820,  61   N.   W.  304. 

'(Ulliam  V.  McCormack,  85  Tenn.  597,  4  S.  W.  521  (a  well  reasoned  opinion). 
The  doctrine  of  marshaling  will  not  be  applied  so  as  to  work  an  injustice 
to  the  (1(1)1  (11-.  Consequently,  it  is  generally  held  that  it  cannot  be  invoked 
to  comiK'l  a  creditor  to  resort  to  a  liomestead  in  the  first  instance:  First 
Nat.  I'.aiik  v.  Hrowne.  12S  Ala.  5:)7.  Si;  .\m.  St.  Rep.  1.56.  29  South.  5,52:  Koen 
V.    Brill.   75   .Miss.   S70.   65  Am.   St.   Rep.   ()3.'5,  23   South.   481. 

••See  (.ot/ian  v.  Shaknian,  89  Wis.  52,  -16  .Am.  St.  Rep.  820,  61  X.  W.  30:. 


§  1415  EQUITY    JLIflSl'RLDEXCE.  910 

tain  suits  in  aid  of  creditors^  iindoul)tedly  had  its  origin  in  the 
narrowness  of  the  common-law  remedies  by  writs  of  execnlion.  These 
wTits,  issued  by  courts  of  conmion  law,  besides  being  otherwise  limited  iu 
their  operation,  were,  of  course,  confined  to  those  estates  and  interests 
recognized  by  the  law,  and  did  not  extend  to  estates  and  in- 
terests equitable  in  their  nature.  Creditors'  suits  w^ere  therefore 
permitted  to  be  brought  in  those  instances  where  the  relief  by 
execution  at  common  law  was  ineffectual;  as  for  a  discovery  of 
assets;-  to  reach  equitable  and  other  interests  not  subject  to  levy 
and  sale  at  law;^  and  to  set  aside  fraudulent  conveyances  and 
obstructions.^  Statutes  in  England  and  in  certain  American  states 
have  greatly  extended  the  scope  of  writs  of  execution,  thereby 
providing  for  adequate  legal  relief  in  cases  where  formerly  resort 
to  equity  was  necessary,  and  even  extending  the  relief  to  instances 
where,  perhaps,  a  creditor's  bill  would  not  lie."'     In  other  states, 

^  Creditors'  suits  may  ho  brought  either  while  the  debtor  is  living,  or  after 
liis  death  against  his  estate.  In  the  latter  case,,  the  suit  ends  in  adminis- 
tration, if  the  executor  or  administrator  does  not  admit  assets.  If  assets  are 
admitted,  a  decree  is  simply  made  for  payment  of  the  debt.  The  jurisdiction 
of  equity  to  entertain  suits  of  this  latter  class  has  been  considered  under  the 
head  of  Administration:  See  ante,  §  1154.  The  present  discussion  will  be  con- 
fined  to   suits   of   the   first   class. 

-Hendricks  v.  Robinson,  2  Johns.  Ch.  283;  Bay  SHate  Iron  Co.  v.  Goodall, 
no  N.  H.  223,  75  Am.  Dec.  219;  Le  Roy  v.  Rogers,  3  Paige,  234. 

■'  Such  intangible  property  as  a  patent-right;  Ager  v.  Murray,  105  U.  S.  120.  2(5 
L.  ed.  942.  The  cases  are  in  conflict  on  the  question  whether,  in  the  absence  of  the 
authority  now  generally  given  by  statute,  the  bill  will  lie  to  reach  the  choses  in  ac- 
tion of  the  judgment  debtor,  unless  the  case  presents  some  independent  ground  of 
equity  jurisdiction,  such  as  fraiul,  trust,  or  the  like;  in  favor  of  the  jurisdiction, 
see  the  leading  cases,  Hadden  v.  Spader.  20  Johns.  (N.  Y.)  554;  Edmeston 
V.  Lyde,  1  Paige,  637,  19  Am.  Dec.  454;  contra,  see  Greene  v.  Keene,  14  R.  I. 
3SS,  51  Am.  Rep.  400;  Harper  v.  Clayton,  84  Md.  346,  57  Am.  St.  Rep.  407,  35 
At  I.  1083,  35  L.  R.  A.  211.  Equitable  interests  of  the  debtor  may  generally  be 
reached:  Cochran  v.  Cochran,  62  Neb.  450,  87  N,  W.  152;  subject  to  the  im- 
portant exception  of  the  "spendtlirift  trusts"  whose  validity  is  recognized  in 
many  jurisdictions:  see  ante,  §  989,  note.  Numerous  species  of  property  are, 
of  course,  exempt  by  statute  (homesteads,  etc.),  or  public  policy  (e.  g.,  salaries 
of  ollicials;  alimony:  see  Romaine  v.  Chauncey,  129  N.  Y.  506,  26  Am.  St. 
Rep.    544,  '29   N.   E.   820,    14   L.   R.   A.   712). 

^  Tlie  creditor's  legal  remedies  to  reach  and  apply  land  fraudulently  conveyed  are 
seldom  adequate.  Though  the  conveyance  may  be  utterly  void  at  law,  and  the  land 
subject  to  seizure  and  sale  on  execution,  such  sale  will  usually  be  at  a  sacrifice, 
since  the  execution  purchaser  receives  a  title  clouded  by  the  apparent  title  of  the 
fraudulent  grantee.  Brown  v.  J.  Wayland  Kimball  Co.,  84  Me.  492,  24  Atl.  1007  ; 
Yasser  v.  Henderson,  40  Miss.  519,  90  Am.  Dec.  351;  Mann  v.  Appel,  31  Fed. 
381.  The  creditor's  suit  may  also  be  directed  against  a  fi'audulent  transfer 
of  personal  propeity :  llie  legal  remedy  by  replevin,  however,  is  more  usual  in 
this  case:  see  O'Brien  v.  Stainbach,  101  Iowa,  40,  ()9  X.  \Y.  1133,  03  Am.  St. 
Rep.    30S. 

^  In  iMigland,  by  the  statute  of  frauds,  29  Car.  11.,  c.  3,  sec.  10,  legal  execution 


911  CREDITUKS"   SLITS.  §    1-415 

statutes  have  increased  the  efficiency  of  creditors'  suits  by  dealin<i: 
with  the  subject  directly.  It  is  a  necessary  result  from  the  whole 
theory  of  the  creditors'  suits  that  jurisdiction  in  equity  will  not 
be  entertained  where  there  is  a  remedy  at  law.*^  The  general  rule 
is,  therefore,  that  a  judgment  must  be  obtained,  and  certain  steps 
taken  towards  enforcing  or  perfecting  such  judgment,  before  a 
party  is  entitled  to  institute  a  suit  of  this  character.'  In  this 
there  is  a  uniformity  of  opinion,  but  the  difficulty  arises  in  de- 
termining- exactly  how  far  a  plaintiff  should  proceed  after  he  has 
ol)tained  his  judgment."^    It  is,  of  course,  necessary  for  the  creditor 

was  given  against  the  lands,  tenements,  and  hereditaments  of  a  person  seised 
in  trust  for  the  debtor  at  the  time  of  execution  sued  out.  This  exception  to 
the  property  capable  of  being  reached  by  the  ordinary  writs  was  obviously  very 
narrow, — extending  onl}'  to  real  estate  seised  in  trust  at  the  tune  of  execution 
sued  out,  and  not  embracing  chattels  real,  trusts  under  which  the  debtor  had 
not  the  whole  interest,  equities  of  redemption,  or  any  equitable  interest  parted 
Avith  before  execution  sued  out.  By  statute  1  &  2  Vict.,  c.  110,  the  remedies 
of  creditors  by  ordinary  writs  of  execution  are  very  complete. 

"  See  the  cases  cited  in  the  next  note  but  one.  The  question  has  frequently 
ari.;en  whether  the  statutory  '"proceedings  svipplementary  to  execution"  have  ren- 
dered the  equitable  remedy  obsolete.  This  question  should  be  solved  by  refer- 
ence to  the  principle  of  §  279,  ante.  8ee,  especially,  Ryan  v.  Maxey,  14  Mont. 
81,  35  Pac.  515  (bills  to  set  aside  fraudulent  conveyances  have  not  been  sup- 
planted by  the  statutory  remedy)  :  fSabin  v.  Anderson,  31  Oreg.  487,  49  Pac. 
870. 

'  See  Ladd  v.  Judson,  174  111.  344,  66  Am.  St.  R,ep.  267,  and  monographic 
note,  51  N.  E.  838:  Aigeltinger  v.  Einstein,  143  Cal.  609,  101  Am.  St.  Pvep.  131, 
77  Pac.  669.  It  is  impossible  to  state  a  more  definite  rule  than  this,  as  will 
subsequently   ajjpear. 

**  Whoi  an  execution  returned  unsatisfied  is  or  is  not  an  essential  preliminary. 
— iiuch  of  the  conflict  doubtless  results  from  the  effect  judgments  and  writs  of 
execution  have  in  diiierent  states.  The  rule  seems  to  be  sustained  by  the  weight 
of  authority,  that  before  a  creditor's  suit  can  be  brought  to  reach  choses  in 
action  and  personal  property  in  such  a  shape  or  form  or  under  such  conditions 
that  no  levy  can  be  made  at  law,  execution  must  have  been  issued  and  a  return 
of  nulla  bona  made,  since  this  is  the  best  evidence  that  the  legal  remedies  are 
inadequate.  See  State  Baidc  v.  Belk  (Neb.),  94  N.  W.  617;  Menkler  v.  U.  S. 
Sheep  Co.,  4  X.  Dak.  507,  62  X.  W.  594,  33  L.  R.  A.  546,  and  cases  cited  below. 
On  the  other  hand,  where  the  object  of  the  suit  is  to  subject  to  the  payment 
of  the  creditor's  claim  property  conveyed  in  fraud  of  creditors  a  return 
of  the  execution  unsatisfied  is  not  usually  necessary.  The  ground  of  the  remedy 
in  this  case  is  the  existence  of  a  fraudulent  obstruction  to  the  enforcement  of 
the  complainant's  lien;  it  is  therefore  necessary  for  the  complainant  to  proceed 
so  far  at  law  as  to  create  a  lien;  this  result,  in  most  states,  is  effected 
as  respects  the  debtor's  land,  by  the  docketing  of  the  judgment.  See  Slate 
Bank  v.  Belk,  Xeb.,  94  X.  W.  617;  Schofield  v.  Ute  Co.,  92  Fed.  269.  34  C.  C. 
A.  334;  Spooner  v.  Travelers'  Ins.  Co.,  76  Minn.  311,  77  Am.  St.  Rep.  651,  79 
X.  \\.  305.  Tliere  are  exceptions  to  the  rule  even  that  a  judgment  is  required. 
Tims  it  is  held  that  under  certain  circumstances  equity  will  lend  its  aid 
to  set  aside  fraudulent  conveyances  of  property  and  apply  it  to  a  creditor's 
demands,  by  a  proceeding  that  may  be  called  "equitable  attachment,"  without  a 


>5   1415  EQUITY     JllMSPKl  DEXCE.  i)lr3 

to  allege  and  prove  that  he  has  taken  the  necessary  proceedings 
at  law  before  he  can  show  a  ease  requiring  the  interposition  of 
equit3^  Whether  an  equitable  suit,  analogous  to  the  creditor's 
suit,  will  be  allowed  in  aid  of  the  lien  created  by  an  attachment, 
before  the  recovery  of  judgment,  is  a  question  to  which  the  Ameri- 
can courts  have  given  directly  contacting  answers. 

judgment  having  been  obtained,  where  tiie  debtor  has  absconded,  or  removed 
Ironi  or  resides  out  of  the  state:  Merchants'  Nat.  Bank  v.  Paine,  13  R.  1. 
r)!t2.  1  Scott,  13G;  First  Nat.  Bank  v.  Eastman,  144  Cal.  487,  103  Am.  St. 
Hep.  05,  77  Fac.  1043.  In  a  few  of  the  states  simple  contract  creditors  are 
authorized  by  statute  to  sue  in  equitj'  to  set  aside  fraudulent  conveyances;  but 
these  statutes  liave  not  been  followed  by  the  federal  courts:  see  ante,  note  to 
§  293. 

In  aid  of  attachment. — An  exception  has  been  sought  to  be  made  in  the 
case  of  attaching  creditors,  and  the  question  has  been  presented  whether  equity 
will  ever  assist  an  attachment  at  law.  It  has  been  held,  in  accordance  with 
the  prevailing  theory,  that  a  creditor's  suit  may  be  maintained  to  reach  real 
estate  when  a  specific  lien  is  created,  that  an  attachment  constitutes  such  a 
lien  as  to  furnish  ground  for  equitable  interference  to  remove  fraudulent 
obstructions  or  impediments  on  the  property,  real  or  personal,  attached,  with- 
out the  requirement  of  a  judgment  obtained,  or  the  steps  subsequent  thereto, 
necessary  in  ordinary  creditors'  suits :  Chicago  &  A.  Bridge  Co.  v.  Anglo-American, 
etc.,  Co.,  46  Fed.  584;  Hunt  v.  Field.  !l  X.  J.  Eq.  30,  57  Am.  Dec.  365.  Other 
decisions  hold  that  such  a  suit  cannot  oe  maintained:  Aigeltinger  v.  Einstein,  143 
Cal.  (JOU,  101  Am.  St.  Rep.  131,  77  Fac.  UUU. 


!jl3  SLITS    Foi;    i:xo\i:katiox,  §  1417 


SEVENTH    GROUP. 

re:\iedies  in  which  the  final  eelief  is  wholly 
pecuniary,  and  is  obtained  in  the  form  of  a 
general  pecuniary  recovery. 


CHAPTER    FIRST. 

SUITS  FOR  CONTRIBUTION,    EXONERATION,    AND  SUBRO- 
GATION. 

ANALYSIS. 

§  1416.  General  nature,  kinds,  and  classes. 

S  1417.  Exoneration:    rights   of   surety   against   the   principal    debtor. 

S  1418.  Contribution. 

§  1419.  Subrogation. 

§  1416.  General  Nature,  Kinds,  and  Classes. — The  remedies 
..  ^iposino^  this  group  belong  to  the  concurrent  jurisdiction  of 
C' .mity,  since  the  final  reliefs  are  the  same  in  form  and  substance 
a^j  that  granted  under  like  circumstances  by  a  judgment  at  law. — 
a  general  pecuniary  recovery, — and  since  the  primary  rights  and 
interests  of  the  parties  are  generally  recognized  and  protected  b,y 
the  law.  Within  the  group  are  included  suits  by  assignees  of 
things  in  action;  suits  by  equitable  assignees  of  a  fund  ;^  suits  for 
contribution  in  general ;  suits  for  contribution,  exoneration,  and 
subrogation,  growing  out  of  suretyship;  suits  for  an  accounting 
iu  general:  and  suits  under  various  circumstances,  and  between 
]iarticular  parties,  in  which  an  accounting  is  a  necessary  element 
(if  tlie  relief.- — as,  for  example,  between  partners. 

§  1417.  Exoneration — Rights  of  Surety  against  the  Principal 
Debtor. — When  a  surety  has  actually  paid  or  satisfied  the  princi- 
j)a]'s  obligation,  or  any  part  thereof,  he  is  entitled  to  be  reimbursed 
by  the  principal  debtor,  and  can  maintain  an  equitable  action  for 
that  purpose.^  He  may  also  maintain  a  quia  timet  suit  in  ecpiity 
before  any  payment. 

'As  to  suits  by  assignees  of  things  in  action,  see  ante,  ?§  1277,  1278;  by 
equitable  assignees  of  a  fund:     §§  1280-1284. 

-The  right,  of   recovery   being  based   upon   an    implied   contract  of  the  jjrin- 
5S' 


§  1418  EQUITY    JUKISPRUDEXCE.  914 

§  1418.  Contribution. — Where  there  are  two  or  more  sureties 
for  the  same  principal  debtor,  and  for  the  same  debt  or  obligation, 
whether  on  the  same  or  on  different  instruments,  and  one  of  them 
has  actually  paid  or  satisfied  more  than  his  proportionate  share  of 
the  debt  or  obligation,  he  is  entitled  to  a  contribution  from  each 
and  all  of  his  co-sureties,  in  order  to  reimburse  him  for  the  excess 
paid  over  his'  share,  and  thus  to  equalize  their  common  burdens. 
The  same  doctrine  applies,  and  the  same  remedy  is  given,  between 
all  those  who  are  jointly,  or  jointly  and  severally,  liable  on  con- 
tract or  obligation  in  the  nature  of  contract.^  The  right,  however, 
may  be  controlled  or  modified  by  express  agreement  among  the 
co-sureties  or  debtors. 

cipal,  a  jurisdiction  at  law  to  give  the  same  relief  has  become  established, 
and  is  ordinarily  resorted  to  in  this  country.  The  equitable  jurisdiction,  how- 
ever, still  exists.  The  surety  is  entitled  to  exoneration,  whether  his  payment 
was  voluntary  or  compulsory:  Beal  v.  Brown,  13  Allen  114  (surety  need  not 
set  up  statute  of  frauds  as  defense)  ;  if  compulsory,  he  can  recover  back  his 
reasonably  necessary  costs  and  expenses:  Butler  v.  Butler's  Adm'r,  8  W.  Va. 
H77„  The  jurisdiction  extends  to  all  those  who  in  reality  stand  in  a  position 
(if  suretyship  towards  principal  debtors;  e.  g-.,  to  a  surety  for  a  prior  siiretj/: 
Hall  V.  (Smith,  5  How.  96,  12  L.  ed.  6G.  If  the  surety  satisfies  the  obligation 
at  less  than  its  full  amount,  he  can  only  recover  from  the  principal  debtor 
wliat  he  has  actually  paid,  or  the  value  of  the  property  given  up:  Bonney  v. 
Seely.  2   V\'end.  481. 

Suit  before  jxii/nient. — After  the  obligation  becomes  payable,  the  surety, 
before  he  has  paid  it,  and  whether  he  has  been  sued  by  the  creditor  or  not, 
may  maintain  a  suit  in  equity  against  the  debtor — in  the  nature  of  a  bill 
(juia  timet — to  compel  hi)ti  to  pay  the  debt  or  perfonn  the  obligation:  pro- 
viiled  the  creditor  can  himself  enforce  payment  or  performance,  and  neglects 
or  refuses  to  do  so.  The  creditor  is.  of  course,  made  a  co-defendant:  Dobie 
v.  Fidelity,  etc.,  Co.,  95  Wis.  540,  GO  Am.  St.  Rep.  135.  70  N.  W.  482. 

'The  doctrine  of  contribution  rests  upon  the  maxim.  Equality  is  equity:  See 
ante,  S§  405-412.  Although  contribution  is  based  upon  general  considerations  of 
justice,  and  not  upon  any  notion  of  an  implied  promise,  a  jvirisdiction  at  law  has 
become  well  settled  which  is  sufficient  in  all  ordinary  cases  of  suretyship  or 
joint  liability.  The  equitable  jurisdiction  still  remains,  and  has  some  mosi  im- 
portant advantages.  All  the  co-sureties  and  the  principal  debtor  being  parties 
to  the  equity  suR,  the  liabilities  of  each  and  their  exoneration  by  the  principal 
debtor  can  be  adjusted  and  established  by  a  single  decree.  Tf  one  or  more  of 
llie  co-sureties  are  insolvent,  the  plaintiff  can  in  equity  obtain  a  pi-oportionate 
increase  of  contribution  from  the  others  who  are  solvent.  Bosley  v.  Taylor.  5 
Dana  157,  30  Am.  Dee.  677.  See  2  Pom.  Eq.  Rem.  §  915.  There  may  be  con- 
tribution among  sureties  whose  liability  depends  upon  different  instruments, 
or  arose  at  different  times,  so  long  as  they  are  sureties  for  the  same  debt  or 
obligation  of  the  same  principal  debtor:  Dering  v.  Earl  of  Winchelsea,  1  Cox  318, 
1  Lead  Cas.  Eq.  120.  124,  134,  1  Scott  307.  Shep.  01:  Sloan  v.  Gibbes.  56  S.  C. 
480,  76  Am.  St.  Rep.  559,  35  S.  E.  408.  Thei-e  is  ordinarily  no  contribution 
among  tort-feasors:  Johnson  v.  Torpy,  35  Nebr.  604.  37  Am.  St.  Rep.  447,  53  N. 
W.  575;  but  see  Farwell  v.  Becker.  129  HI.  261.  16  Am.  St.  Rep.  267,  21 
N.  E.  792,  6  L.  R.  A.  400    (where  the  complainant  did  the  act  witliout  wrongful 


915  SUITS    FUi;    .sriJKUGATION.  §    1419 

§  1419.  Subrogation.— The  surety  who  has  paid  or  satisfied  the 
priucipal's  debt  or  obligation  is  entitled  to  be  subrogated  to  and 
to  have  the  benefit  of  all  securities  which  may  at  any  time  have 
been  put  into  the  creditor's  hands  by  the  principal  debtor^  or 
which  the  creditor  may  have  obtained  from  the  principal  debtor. 
By  the  fact  of  payment,  the  surety  becomes  an  e(iuitable  assignee 
of  all  such  securities,  and  is  entitled  to  have  them  assigned  and 
delivered  up  to  him  by  the  creditor,  in  order  that  he  may  en- 
force them  for  his  own  reimbursement  and  exoneration.  If  there- 
fore, the  creditor  refuses  to  surrender  up  such  securities,  the  surety 
may  maintain  an  equitable  suit  to  compel  their  assignment  and 
surrender.^     The  doctrine  and  remedj^  of  subrogation  are  extended 

intent).  As  to  conti'ibution  among  co-trustees,  see  ante,  §  1081;  among  owners 
of  lands  subj  ct  to  incumbrance,  §§  1221-1226:  among  tenants  in  common,  etc., 
§§  1240,  1389;  see  also  Rindge  v.  Baker,  57  N.  Y.  209,  15  Am.  Rep.  475,  H.  &  B. 
578.  (contribution  enforced  by  one  who  has  constructed  a  party-wall).  Con- 
tiihution  may  be  liad  though  there  was  a  good  defense  to  the  payment  if  tlie 
plaintiff  was  ignorant  of  that  defense  and  acted  in  good  faitli:  Hichborn  v. 
Fletcher,  66  INIe.  209.  22  Am.  Rep.  562.  As  to  contribution  by  the  estate  of  a 
deceased  joint  surety,  see  ante.  §  409.  By  the  better  rule,  the  complainant  is 
entitled  to  contribution  for  reasonable  costs  and  expenses  incurred  in  a  prudent 
defense  of  a  suit:    Connolly  v.  Dolan,  22  R.  I.  60,  84  Am.  St.  Rep.  816,  46  Atl.  36. 

'  The  doctrine  of  subrogation  is  of  wide  extent  and  operation  in  various  de- 
partments of  equity  jurisprudence.  Persons  entitled  to  the  remedy  may  be 
classified  as  follows:  /?/-.sf.  those  who  made  the  payment  in  performance  of  a 
legal  duty,  arising  either  by  express  agreement  or  by  operation  of  law:  in- 
cluding sureties:  Darrnw  v.  Summerhill.  03  Tex.  92.  77  Am.  St.  Rep.  833.  53 
S.  W.  680  (surety  on  an  injunction  bond)  :  a  fire  insurance  companj'  that  has 
paid  a  loss  caused  by  the  negligence  of  a  third  party,  and  is  therefore  subrogated 
to  the  claim  of  the  insured  against  such  party;  Hart  v.  Western  R.  R.  Co.,  13 
^let.  (Mass.)  99,  46  Am.  Dec.  719;  Packham  v.  German  Fire  Ins.  Co.,  91  Md. 
51.-,.  SO  Am.  St.  Rep.  461.  46  Atl.  1066,  50  L.  R.  A.  828.  A  surety  who  has  paid 
more  than  his  fair  share  is  entitled  to  subrogation  against  his  co-surety;  see 
Pace  V.  Pace's  Admr..  95  Va.  792,  30  S.  E.  361,  44  L.  R.  A.  459.  Second,  those 
A\ho,  while  not  legally  bound  to  pay.  yet  might  suffer  loss  if  the  obligation  is 
not  discharged,  and  so  pay  the  debt  in  self -protection ;  including  subsequent  en- 
cumbrancers and  other  owiiers  of  equities  or  partial  interests  who  have  paid  cfl 
prior  incumbrances.  See  ante.  §§  1211-1214.  Third,  those  who  have  paid 
at  the  request  of  the  debtor  or  some  other  party  to  the  obligation ;  see  ante. 
§  1212.  A  person  wiio  attempts  in  good  faith,  to  purchase  property  at  a  void 
judicial  sale,  and  whose  purchase-money  is  used  to  satisfy  valid  claims  against 
tlie  property,  acts  on  an  invitation  from  tlie  puVdic.  favored  by  public  necessity 
and  policy,  and  is  therefore  subrogated  to  the  rights  of  the  parties  receiving  the 
money:  Bond  v.  Montgomery,  56  Ark.  563.  35  Am.  St.  Rep.  119.  20  S.  W.  525; 
Hrewer  v.  Nash.  Ifi  R.  I.  4.58,  27  Am.  St.  Rep.  749,  17  Atl.  857. 

Being  a  doctrine  of  purely  equitable  origin  and  nature,  its  operation  is  al- 
ways controlled  by  equitable  principles.  Bleakley's  Appeal,  66  Pa.  St.  187,  Shep. 
111.  (one  making  payment  to  defraud  another  cannot  have  subrogation).  It  is, 
therefore,  never  enforced  so  as  to  defeai  ni-  interfere  with  the  superior  or  equal 
equities  of  third  persons,  or  with  the  legal  right  of  third  persons  growing  out  of 


§  1419  EQUITY  JUKISPRUDEXCE.   •  Q18 

also  to  the  creditor,  who  is  subrogated  to  and  entitled  to  the  bene- 
fit of  all  securities  given  to  a  surety  for  purposes  of  his  indemnifi- 
cation by  the  principal  debtor;  and  also  between  co-sureties,  so 
that  one  surety,  in  enforcing  his  rights  of  exoneration  and  of  con- 
tribution, is  subrogated  to  securities  given  to  his  co-surety.-  It 
necessarily  follows  from  the  surety's  right  of  subrogation  that  the 
creditor  cannot,  without  the  surety's  assent,  surrender,  give  up, 
release,  or  discharge  any  such  securities,  or  render  them  in  any 
way  unavailable  to  the  surety,  either  by  his  own  acts  or  omissions. 
If  he  does  so,  the  surety's  liability  is  thereby  discharged,  AvhoUy 
or  partially,  as  the  case  may  be.-' 

express  contract,  ilakeel  v.  Hotel. kiss,  100  111.  .311,  8.3  Am.  St.  Rep.  131,  60  X. 
K.  .524. 

Ihe  remedy  of  suhro.uation  has  been  granted  to  snrotics  mncli  more  favorably 
and  extensively  by  the  American  equity  jurisprudence  than  by  the  English.  In 
England,  prior  to  modern  legislation,  if  a  sui'ety  paid  a  conti-act  which  he 
executed  jointl_y  with  his  princijial  debtor,  or  paid  a  judgment  recovered  against  him 
and  his  principal  jointly,  the  contract  or  judgment  was  thereby  ended  and  discharg- 
ed, and  could  not  itself  be  enfoi'ced  by  the  surety.  The  courts  of  all  the  American 
states,  with  very  few  exceptions,  have  extended  the  remedy  of  subrogation  to 
such  cases;  they  enable  the  surety  to  enforce  such  bond,  or  contract,  or  judgment 
immediately  against  the  principal  debtor,  although  the  surety  was  himself  di- 
rectly liable.  In  other  words,  by  the  English  doctrine,  the  surety  became  equitable 
assignee  only  of  collateral  securities ;  by  the  American  doctrine  he  becomes 
equitable  assignee,  not  only  of  collateral  securities,  but  of  the  principal  under- 
taking. See  Subiett  v.  ^McKinney,  10  Tex.  438,  Shep.  73;  favoring  the  English 
doctrine,  see  IVebles  v.  Gay.  115  X.  (".  3S.  44  Am.  St.  Rep.  429,  20  S.  E.  173. 

"  See  Henderson-Achert  Lith.  Co.  v.  .Tohn  Shillito  Co.,  64  Ohio  St.  236,  83  Am. 
St.  Rep.  745,  60  N.  E.  205. 

^  See  Mingus  v.  Daugherty,  87  Iowa  56,  43  Am.  St.  Rep.  354,  54  N.  W.  66. 


^i'i  SLiia    iUiC    A.N     ACCULNli-NG. 


CHAPTER  SECOND. 

SUITS  FOR  AX  ACCOUNTING. 

§   1420.     Origin  of  the  equitable  jurisdiction. 

§   1421.     Extent  of  the  equitable  jurisdiction;  when  exercised. 

§  1420.  Origin  of  the  Equitable  Jurisdiction. — The  action  of 
account-render  was  one  of  the  most  ancient  actions  known  to  the 
common  law.'^  From  the  narrow  scope  and  technical  rules  of  this 
action,  the  inability  of  common-l^w  courts  to  obtain  a  discoveiy 
from  the  defendant  on  his  oath,  the  difficulty  met  with  in  cases 
of  mutual  and  complicated  accounts,  and  the  impossibility  of  other- 
W'se  doinsT  complete  justice,  it  is  easy  to  understand  why  the 
action  of  account-render  fell  into  disuse,  and  a  jurisdiction  in 
equity  to  entertain  suits  for  an  accountino-  grew  up.-  The  juris- 
diction exists,  therefore,  and  is  well  established;  but  the  question 
arises,  since  there  is  a  similar  jurisdiction  at  law.  When  may  a 
suit  in  equity  for  an  accounting  be  brought?  This  question,  of 
course,  does  not  arise  in  those  cases  where  an  accounting  is  decreed 
as  an  incident  to  other  eciuitable  relief;  nor  should  it  arise  where 

^  Tills  action  ^vas  exceedinfily  narrow  in  its  operation:  for  it  lay  only  in  cases 
where  there  was  eitlier  a  privity  in  deed,  as  against  a  bailiff  or  receiver  ap- 
pointeil  by  tlie  ])arty.  or  a  ]Mivity  in  law.  ex  provisione  legis.  as  against  guardians 
m  socage:  Co.  Lit.  90  b.  By  the  la^'  merchant,  also,  the  action  could  be  brought 
by  a  person,  naming  himself  a  merchant,  against  another,  naming  him  a  mer- 
chant, and  charging  him  as  a  receiver:  Co.  Lit.  172  a.  Statutes  afterwards 
extended  tlie  action,  which  was  strictly  confined  to  these  parties,  to  their  exe- 
cutors and  administrators:  ?,  &  4  Anne,  c.  10:  13  Edw.  T.,  c.  23:  31  Edw.  111., 
c.  11.  Tlie  method  of  procedure  was,  first,  to  obtain  a  preliminary  judgment 
that  tlie  defendant  do  account,  quod  computet,  before  auditors,  and  then  a 
second  judgment  that  he  pay  the  plaintiff  the  balance  foimd  to  be  due  him:  3 
Black.  Com.  Ifi3.  But  if  the  balance  was  in  favor  of  the  defendant,  the  plaintiff 
could  not  be  compelled  to  pay  it:  1  Spence's  Eq.  Jur.  fi.'iO.  Besides  this  defect 
in  tlie  common-law  procedure,  the  aTiditors  had  no  power,  prior  to  statute,  of 
examining  the  parties  on  oath;  and  any  disputes  which  arose  before  them  on 
the  items  of  account  could  only  be  settled  by  as  many  issues  in  court:  Jeremy's 
Eq.  Jur.  504.  This  action  of  account-render  was  the  only  means  which  the  com- 
mon law  furnished  of  obtaining  a  settlement  of  an  account,  except  that  assumpsit 
might  be  brought  for  a  determinate  balance:  3  Black.  Com.  162.  But  if  the  bal- 
ance was  disputed,  it  was  necessary  for  the  jury  to  investigate  the  items  one  by 
one,  a  task  which  Avas  practically  inipossilde. 

-  1  Spence's  Eq.  Jur.  640;  Mitford's  Eq.  PI.  120.  123:  Bacon  Abr..  tit.  Accompt. 
The  action  of  account-render  is  perfected  in  several  states  by  statute. 


§  1421  EQUITY     JLr.lSPKlDKXCE.  918 

the  subject-matter  is  an  equitable  interest  or  estate,  for  here  the 
jurisdietio-n  should  be  exercised  as  a  necessary  consequence,  with- 
out regard  to  legal  remedies.-^  It  is  not  in  every  matter  of  account 
cognizable  at  law  that  the  equitable  jurisdiction  will  be  exer- 
cised, the  general  rule  being  that  a  proper  case  is  presented  when 
the  remedies  at  law  are  inadequate.* 

§  1421.  Extent  of  the  Equitable  Jurisdiction — When  Exercised. 
—  The  instances  in  which  the  legal  remedies  are  held  to  be  inade- 
([uate,  and  therefore  a  suit  in  equity  for  an  accounting  proper,  are: 
1.  Where  there  are  mutual  accounts  between  the  plaintiff  and  the 
defendant, — that  is,  where  each  of  the  two  parties  has  received 
and  paid  on  account  of  the  other -j^  2.  Where  the  accounts  are  all 
on  one  side,  but  there  are  circumstances  of  great  complication, 
or  difficulties  in  the  ^way  of  adequate  relief  at  law;-  S'.  Where  a 
lidueiary  relation  exists  between  the  parties,  and  a  duty  rests  upon 
The  defendant  to  render  an  account.^     A  plea   of  stated   account 

=  Ante,  §§  218,  219. 

*Ante,  §§  170,  178. 

^  The  accounts  must  be  nuitual,  as  distinguislied  from  matters  of  set-off,  and 
accounts  on  one  side  only:  Dinwiddle  v.  Bailej',  6  Ves.  136,  1  Ames,  Eq.  Jur.  442; 
Phillips  V.  Phillips,  9  Hare,  471,  1  Ames,  Eq.  Jur.  449;  Fluker  v.  Taylor,  3  Drew. 
183,  3  Keener  906;  Garner  v.  Reis,  25  ]Minn.  475,  3  Keener  920:  Haywood  v. 
Hutchins,  65  N.  C.  574,  1  Ames  Eq.  Jur.  459  (accounts  on  both  sides,  but 
liaving  no  connection  with  each  other).  For  a  definition  of  a  mutual  account, 
see  Phillips  v.  Phillips,  supra. 

-Taff  Vale  R'y  v.  Nixon,  1  H.  L.  Cas.  110;  1  Ames  Eq.  Jur.  454,  3  Keener 
888;  Barry  v.  Stevens,  31  Beav.  258,  1  Ames  Eq.  Jur.  451,  3  Keener 
910  (court  will  not  take  jurisdiction  merely  because  the  items  are  very 
numerous.)  To  determine  wliat  degree  of  complication  is  required  before 
a  court  of  equity  will  entertain  jurisdiction  for  that  reason,  independent  of 
other  circumstances,  the  rule  was  established  in  England  that  the  account  should 
be  so  complicated  that  a  court  of  law  would  be  incompetent  to  examine  it  at 
nisi  prius  with  the  necessary  accuracy:  Taff  Vale  R'y  v.  Nixon,  supra;  Foley  v. 
Hill,  2  H.  L.  Cas.  28,  40,  1  Ames  Eq.  Jur.  446,  3  Keener  897.  But  under  the 
|)resent  practice  in  England,  matters  of  account  may  now  be  referred  to  officers 
or  referees,  so  that  the  rule  as  above  stated  can  now  hardly  be  followed.  Tiie 
facts  of  each  particular  case  should  govern,  and  if  it  is  doubtful  whether  ade- 
quate relief  could  be  obtained  at  law,  equity  should  entertain  jurisdiction.  Foley 
V.  Hill,  supra;  Marvin  v.  Brooks,  94  N.  Y.  71,  3  Keener  924;  Uhlman  v.  New 
York  Life  Ins.  Co.,  109  N.  Y.  421,  433,  4  Am.  St.  Rep.  482,  17  N.  E.  363  (relief 
refused  when  it  will  be  of  very  great  inconvenience  and  possible  oppression  to 
the  defendant).  In  the  important  case  of  Pierce  v.  Equitable  Life  Assnr.  Snc, 
145  Mass.  56,  12  N.  E.  858,  3  Keener  929,  the  defendant  company  Avas  compelled 
to  account  to  the  holder  of  a  "tontine"  policy,  to  show  that  it  had  complied  with 
its  promise  "equitably  to  apportion"  to  the  plaintiff  his  share  in  the  accumula- 
tions made  through  the  operation  of  the  tontine  provisions  in  his  policy.  Relief 
Avas  granted  on  the  ground  of  the  extreme  complexity  of  the  accounts.  But  in 
Uhlman  v.  N.  Y.  Life  Ins.  Co.,  supra,  relief  was  refused  or  similar  facts. 

^This  will  embraces  suits  against  trustees — including  directors  of  corporations 


919  SUITS    FOR    AN    ACCOUNTING.  §  14  U 

obviously  constitutes  a  bar  to  a  suit  in  equity  for  au  accountiug, 

— which,  as  before  stated,  are  particularly  of  equitable  cognizance.  Also  suits  for 
an  accounting  between  partners;  see  Pom.  Eq.  Rem.  §§  937-942.  The  jurisdic- 
tion of  equity  to  compel  guardians  and  executors  and  administrators  to  account 
is  governed  to  a  great  extent  in  the  United  (States  by  the  powers  given  to  courts 
of  probate:  ante,  §  1154.  The  principal  difficulty  is  as  to  when  equity  will  take 
jurisdiction  of  an  accounting  between  principal  and  agent.  The  mere  relation 
of  principal  and  agent,  without  more, — the  relation  not  being  really  fiduciary  in 
its  nature,  and  no  obstacle  intervening  to  a  recoveiy  at  law,— is  insufficient  to 
enable  a  principal  to  maintain  the  action   against  his  agent:    King  v.  Rossett, 

2  Young  &  J.  33,  3  Keener,  886;  Moxon  v.  Bright,  L.  R.  4  Ch.  292,  1  Ames  Eq. 
•  lur.  450,  3  Keener,  918.  But  where  the  relation  is  such  that  a  confidence  is 
rei)osed  by  the  principal  in  his  agent,  and  the  matters  for  which  an  accounting 
is  sought  are  peculiarly  within  the  knowledge  of  the  latter,  equity  will  assume 
jurisdiction:  Makepeace  v.  Rogers,  11  Jur.,  N.  S.  215,  3  Keener,  916;  ^Mackenzie 
V.  Johnston,  4  Madd.  373,  1  Ames  Eq.  Jur.  444,  3  Keener.  885;  Moxon  v.  Bright, 
L.  R.  4  Ch.  292,  1  Ames  Eq.  Jur.  452,  3  Keener,  918;  Marvin  v.  Brooks,  94 
N.  Y.  71,  3  Keener,  924.  While  the  rules  are  thus  settled  in  favor  of  a  principal, 
it  does  not  follow  that  the  reverse  is  true,  and  that  an  agent  may  come  into 
equity  for  an  accounting  against  his  principal,  since  generally  there  is  no  trust 
or  confidence  reposed  in  the  latter,  and  no  duty  on  his  part  to  account:  Padwick 
V.  Stanley,  9  Hare,  627,  3  Keener,  905,;  Smith  v.  Leveaux.  2  Tie  Gex.  J.  &  S.  1, 

3  Keener,  913.  But  there  are  cases  where  an  agent  may  maintain  the  action 
against  his  principal;  as,  for  example,  where  his  salary  depends  on  the  profits 
made  by  his  employer:  Harrington  v.  Churchward,  6  Jur.,  N.  S.  576,  1  Ames 
Eq.  Jur.  457;  Cliannon  v.  Stewart.  103  111.  541,  3  Keener,  922;  Alpaugh  v.  Wood, 
45  N.  J.  Eq.  153,  16  Atl.  676,  3  Keener,  943;  and  persons,  although  not  techni- 
cally partners,  who  are  to  receive  a  certain  share  of  the  profits  of  an  undertaking, 
may  likewise  maintain  the  action:  Pratt  v.  Tuttle,  136  Mass.  233,  3  Keener, 
928.  The  foregoing  rules  are  applicable,  for  similar  reasons,  to  part  owners: 
Sliirley  v.  Goodnough,  15  Oreg.  642,  16  Pac.  871:  and  to  tenants  in  common  and 
joint  tenants  taking  more  than  their  share  of  rents  and  profits:  Early  v.  Friend, 
16  Graft.  21,  78  Am.  Dec.  649.  An  action  by  one  tenant  in  common  against 
another  in  exclusive  possession  to  recover  a  share  of  rents,  profits,  and  issues, 
amounting  in  the  aggregate  to  a  certain  sum,  cannot  be  maintained  in  equity: 
Pico  V.  Columbet,  12  Cal.  414,  73  Am.  Dee.  550.  At  the  common  law,  no  action 
of  account  for  taking  rents  and  profits  lay  against  a  joint  tenant  or  tenant  in 
nonunon  by  another,  unless  the  defendant  was  constituted  bailiff:  Co.  Lit.  200  b; 
hut  tliis  was  remedied  by  the  statute  of  4  Anne,  c.  16,  sec.  27,  and  the  action 
could  be  brought  against  the  defendant  as  bailiff  for  receiving  more  than  his 
sliare  or  proportion.  Tliis  statute  has  been  substantially  re-enacted  in  many 
of  the  American  states,  but  the  equity  jurisdiction  exists  notwithstanding.  An 
accounting  is  often  an  incident  to  a  suit  for  partition  between  joint  tenants  and 
tenants  in  common:  See  ante,  §  1389.  The  relation  of  banker  and  customer 
is  not  fiduciary  in  its  character,  and  unless  there  are  other  circumstances,  there 
can  be  no  accounting  between  them  in  equity:  Foley  v.  Hill,  2  H.  L.  Cas.  28, 
1   Ames  Eq.  Jur.  446,  3  Keener,  897. 

The  rule  is  sometimes  laid  down  by  text-writers  and  judges,  that  where  ac- 
counts are  ail  on  one  side,  but  a  discoveiy  is  necessary,  a  proper  case  is  pre- 
sented for  equitable  interference,  but  such  a  rule  seems  to  be  only  applicable 
to  cases  partaking  of  a  fiduciary  character:  See  cases  ante,  in  tliis  note.  As 
to  discovery  enlarging  the  equitable  jurisdiction  over  accounting,  see  ante,  §§ 
223  et  seq. 


§  14'-il  EcjuiTY    jri;isPi;LDi:xci;.  920 

since  in  that  case  the  remedy  at  law  is  entirely  adequate  ;*  but  of 
course,  a  stated  account  may  be  opened  for  fraud  or  error.^  The 
remedy  of  accounting  is  in  most  instances  a  necessary  incident  and 
part  of  the  relief  granted  in  suits  brought  by  those  beneficially  in- 
terested, against  trustees,  either  express  or  implied,  and  persons 
standing  in  fiduciary  relations,  such  as  administrators,  executors, 
guardians,  directors,  and  the  like.  The  equitable  jurisdiction  is  also 
])raetically  exclusive  in  proceedings  for  an  account  and  settlement  of 
partnership  affairs,  including  suits  for  an  accounting  and  settle- 
ment of  the  firm  affairs  between  the  copartners  themselves;  suits 
for  a  settlement  of  the  firm  affairs  between  the  survivors  and  the 
executors  or  administrators  of  the  deceased  when  a  partner  has 
died;  and  suits  to  settle  the  affairs  of  an  insolvent  firm,  and  to 
adjust  the  demands  of  the  firm  creditors  and  the  creditors  of  the 
individual  partners.  The  ecpntable  jurisdiction  over  partnerships 
is  a  necessary  outgrowth  of  the  jurisdiction  over  accounting,  and 
the  remedies  of  dissolution,  injunction,  and  receivership  are  in- 
cidents necessary  to  a  final  and  complete  relief." 

*  Weed  V.  !Sinall,  7  Paige,  573. 

^  Barrow  v.  Rhinelander,  1  Johns.  Cb.  550,  1   Scott,  409. 

"  Tlie  subject  of  partnersliip  is  so  broad,  requiring  so  much  discussion  for 
its  adequate  treatment,  that  1  shall  not  attempt  to  consider  it.  See  Pom.  Eq. 
Hem.,  §§  936-945. 


TABLE  OF  CASES  CITED. 


TABLE  OF  CASES  CITED. 


Abbott    V.    James,    111    N.    Y.    673,    2 

Keener  1166,  p.  895. 
Abbott  V.  Sworder,  4  De  Gex  &  S.  448, 

2   Keener  483,    p.   483. 
Abbott   V.   Treat,    78   Me.    121,    125,    3 

Atl.   44,  p.   445. 
Abernathy  v.  Hutchinson,  1  Hull  &  T. 

28.  40,  3  L.  J.  Ch.  209,  p.  839. 
Ackerman  v.  Hunsicker^  85  X.   Y.   43, 

47,    39    Am.    Eep.    621,    Kirch.    285, 

p.   702,  703. 
Ackroyd    v.    Sniitlison,    1    Biowu    Ch. 

503,   1   Lead.   Cas.  Eq.   4th  Am.  ed., 

1171,    1181,   3    Keener   977,    1    Scott 

621,  p.  587,  683. 
Acton  V.   Acton,  Prec.  Ch.  237,  Kirch. 

202,  p.  779. 
Acton  V.  Woodgate.  2  ]\lylne  &  K.  492, 

p.  555. 
Adair  v.  Craig,  135  Ala.  332,  33  South. 

902,  p.  518. 
Adair  v.   Shaw,   1    Schoales  &   L.   243, 

262,  p.  5.50.  656. 
Adams    v.    Adams.    21    Wall.    185,    22 

L.    ed.    504,    Ames     Trusts.    227,    p. 

567,  607. 
Adams  v.  Angell,  L.  R.  5  Ch.  Div.  634, 

635,  p.  381. 
Adams  v.  Brenan,  177  111.  194,  69  Am. 

St.  Rep.  222,  52  N.  E.  314,  42  L.  R. 

A.  718,  p.  822. 
Adams  v.  Hill,  29  N.  H.  202,  p.  345. 
Adams  v.  Messinger,  147  Mass.  185,  6 

Am.   St.   Rep,   679,   17   N,   E.  491,   1 

Ames  Eq.  ,Tur.  ,50,  2  Scott  48,  2  Keen- 
er 41,  p.  882,  883. 
Adams  v.   Rutherford.    13   Oreg.   78,   8 

Pac.    896,    p.    219. 
Adams  v.  Vanderbeck,  148  Ind.  92,  45 

N.  E.  645,  47  N.  E.  24,  62  Am.  St. 

Rep.  497,  p.  360. 
Adams  v.  Weare,  1   Pro.  C.  C.  567,   1 

Ames    Eq.   Jur.   397.  2  Scott  286,  2 

Keener    1006,   p.   895. 


Addcrley  v.  Dixon,  1  Sim.  &  St.  007, 

608,  610,  1  Ames    Eq.  Jur.  58,  H.  & 

B.  584,  2  Scott   14,  2  Keener  13,  p. 

879,  880,  881,  882,  883. 
Additon  v.  Smith,  83  Me.  551,  22  Atl. 

470,  p.  660,  663. 
Aden  v.  City  of  Vallejo,   139  Cal.   165, 

72  Pac.  905,  p.  360. 
Aderholt    v.    Henry,    87    Ala.    416,    6 

South.  625,  6  L.  R.  A.  451,  p.  728. 
Adlington    v.    Cann,    3    Atk.    141,    145. 

149,  151,  p.  566. 
Adsit  V.  Adsit,  2  Johns.  Ch.  448,  451, 

7  Am.  Dec.  539,  p.  235. 
Alden  v.  White,   (Ind.  App.)   66  N.  E. 

.509,  p,   707. 
Alderson  v.   Comm'rs,   32  W.  Va.   640, 

25   Am.   St.   Rep.   840,   9   S.   E.   868. 

5  L.  R.  A.  334,  p.  821. 
Aldrich    v.    Coopei%    8    Ves.    382,    395, 

2  Lead.  Cas.  Eq.  228,  255,  291,  305,  p. 

68,   725,   909. 
Aleck  V.  Jackson,  49  X.  J.  Eq.  507,  23 

All.    760,   2   Ames     Eq.    Jur.    45,    p. 

799. 
Alexander  v.  Merrick.  121   111.  (106,   13 

X.    E.    190,    p.    180. 
Alexander  v.  Mortgage  Co.  of  Scotland, 

47  Fed.   131,  134,  p.  80. 
Aetna  Xat.  Bank  v.  Fourth  Bk.  of  X. 

Y.,  46  X.  Y.  82,  87,  7  Am.  Rep.  314, 

p.  766. 
Agar  V.  Fairfax,   17  Ves.  533.  2  Lead. 

Cas.    Eq.,   4th   Am.  ed.   865-919,   880, 

894.   p.   67.   867,  868. 
Agar  V.  Macklew,  2  Sim.  &  St.  418,  1 

Ames  Eq.   Jur.   67,   p.   886. 
Agar-Ellis    v.    Lascelles,    24    Ch.    Div. 

317.  p.  783. 
Ager  V.  IMurray,  105  U.  S.  126,  26  L. 

ed.   942.   p.   910. 
Agnew  V.  R.  R.   Co.,  24  S.   C.   18,  58 

Am.  Rep.  237,  p.  381,  382. 
Ahrend  v.  Odiorne,   118  Mass.  261,   19 

Am.    Rep.   449,   Kirch.    131,   p.   745, 

746. 


(923). 


924 


TABLE    OF    CASES    CITED. 


Aigeltinger  v.   Einstein,   143   Cal.   609, 

101   Am.  St,   Rep.    131,  77   Pac.   UGU, 

p.   iJll,   912. 
Akin    V.    Kellogg,    119   N.    Y.   441,   23 

X.   E.    104(i,   p.   238. 
Alabama  &  Vicksburg  Ry.  Co.  v.  Jones, 

73  Miss.   110,  55  Am.  St.  Rep.  488, 

19  South.  105,  p.  415. 
Alabama  Coal  &  C.  Co.  v.  Shackelford, 

137    Ala.    224,    97    Am.    St.    Rep.    23, 

34    South.    833,    p.    806. 
Albany  City  Savings  Inst.  v.  Burdick, 

87    X.    Y.    39,    3    Keener    378,    p. 

429. 
Albea    v.    Griffin,    2    Dev.    &    B.    9,    1 

Ames   Eq.   Jur.   288,   p.   902. 
Alger   V.   Anderson,    92    Fed.    090,    700, 

710,  p.   99. 
Alleard  v.  Skinner,  3G  Ch.  D.  145,  187, 

p.   510,   522,   526. 
Allen   V.   Allen,    13   S.   C.   512,   30  Am. 

Rep.  716,  p.  246,  247,  248,  249. 
Allen  V.  Hammond,  11  Pet.  63,  2  Scott 

.582.  p.  437. 
Allen   V.    Hawley,   6   Fla.   164,   63   Am. 

Dec.  198,  p.  804. 
Allen  V.  Jackson,  121  111.  507,  13  N.  E. 

840,  p.  523. 
Alh-n    V.    Jackson,    L.    R.    1    Ch.    Div. 

399,    p.    489. 
Allen   V.   Poole,   54   Miss.   323,   333,   p. 

284.  285,  286. 
Allen    V.    Stevens,    161    N.    Y.    122,    55 

X.  E.  568,  H.  &  B.  430,  p.  577. 
Allerton   v.    Belden,    49   X.    Y.    373,    2 

Ames  Eq.  Jur.   113,  p.  861. 
Allfrey   v.    Allfrey,    1    :\lacn.    &    G.    87, 

99.    1    Scott  394,  p.  521. 
Allis  V.  Jones,  45  Fed.  148,  p.  174. 
Allore  V.  Jewell,  94  U.  S.  506,  H.  &  B. 

320,  Shep.  90,  p.  476,  506. 
Almy  V.  Jones,   17   R.  I.   265,  21   Atl. 

616,  12  L.  R.  A.  414,  p.  577. 
Aljiaugh   V.   \Aood,   45   X.   J.   Eq.    153, 

16  Atl.  676,  3  Keener  943,  p.  919. 
Alpers  V.  San  Francisco,  12  Sawy.  631, 

32  Fed.  503,  p.  822. 
Amanda  Consol.  G.  ^M.  Co.  v.  People's 

:\r.  &  M.   Co.,  28  Colo.  251,  64  Pac. 

21 S.  p.  222. 

American   Bell   Tel.   Co.  v.  Kitsell,   35 
Fed.  521,  p.  837. 


American  Biscuit  Co.  v.  Klotz,  44  Fed. 

721,   H.   &   B.   891,   p.   802. 
American  Braided  Wire  Co.  v.  Thomp- 
son,  44   Ch.   Div.   274,   p.   837. 
American    Freehold    L.    &    ]M.    Co.    v. 

Sewell,  92  Ala.  163,  9  South.  143,  13 

L.  R.  A.  299,  p.   179. 
American  Freehold  L.  M.  Co.  V.  Walk- 
er, 31    Fed.   103,  p.  410. 
American  Moi'tgage  Co.  v.  Hutchinson, 

19   Oreg.   334,   24   Pac.   515,   517,   p. 

363. 
American  Surety  Co.  v.  Pafily,  170  U. 

S.   133,   18  Sup.  Ct.  552,  p.   308. 
American  Trust  etc.  Bank  v.  McGetti- 

gan,  152  Ind.  582,  71   Am.  St.   Rep. 

345,  52  X.  E.  793,  p.  80S. 
American   Washboard   Co.   v.   Saginaw 

Mfg.  Co.,  103  Fed.  281,  p.  840. 
American  Waterworks  Co.  v.  Fanners'^ 

L.   &   T.   Co.,  20   Colo.   203,  46  Am. 

St.  Rep.  285,  37  Pac.  209,  26  L.  R. 

A.  348,  p.  811. 
Amerman  v.  Deane,  132  X.  Y.  355,  28 

Am.  St.  Rep.  584,  30  X.  E.  741,  28 

L.  R.  A.  584,  2  Keener  1050,  p.  777, 

894. 
Ames  V.  Richardson,  29  ]\Iinn.  330,  13 

X.  W.  137,  Shep.  64.  p.   157. 
Aiiiick  V.  Woodworth,  58  Ohio  St.   86, 

50  X".  E.  437,  p.  717. 
Amsterdam  Knitting  Co.  v.  Dean,   162 

X.  Y.  278,  56  X.  E.  757,  1  Ames  Eq. 

•Tur.  573,  p.  831,  834. 
Anderson  v.  Eggers,  (X'.  .J.  Eq.)  49  Atl. 

578,   reversing   61    X.   J.   Eq.   85,   47 

Atl.  727,  p.  471,  473. 
Anderson   v.   Xicholas,   28   N.   Y.    600, 

p.  333. 
Andrews   v.   Andrews,    12    Ind.    348,   2 

Ames  Eq.  Jur.  245,  p.  859. 
Andrews  v.  Frierson,  134  Ala.  626,  33 

South.  6,  1  Scott  108,  p.  861. 
Angell  v.  Angell,  1   Sim.  &  St.  83,  93, 

2  Ames  Eq.  Jur.  168.  p.  84,  85. 
Angell    V.    Hadden,     15    Ves.    244,     1 

Keener  214,  p.  791. 
Angier   v.    Webber,    14    Allen    211,    92 

Am.  Dec.  748.  2  Scott  126,  p.  820. 
Angus  V.   Cliftord,    [1891]    2   Ch.   449, 

p.  451. 
Anketel   v.    Converse,    17   Ohio   St.    11, 

91  Am.  Dee.  115,  p.  304. 


TABLi:    Of    CASKS    CITED. 


923 


Anonymous,   1   Alk.  401,  p.   G.")(i. 
Anonymous,  iloore  554  pi.  798,  1  Ames 

Eq.  Jur.  467,  p.  827,  829. 
Anonymous,  3    fSwunston    79,  u.     (a), 

Ames  Trusts  508,  p.  Oil. 
Anonymous,   2   Ves.   414,    1    Ames   Eq. 

Jur.  611.  1  Scott  168,  p.  841. 
Anonymous,  Year  liook,  5  Edw.  l\'.  7, 

pi.  18,  Ames  Trusts  352,  p.  552. 
Anthony  v.  Boyd,   15  R.  I.  495,  8  Atl. 

701,   10  Atl.   657,  p.   428. 
Anthony  v.   Wheeler,    130   111.    128,    17 

Am.  St.  Rep.  281,  22  N.  E.  494,  p. 

269.  270,  367. 
Appleton  V.  Rowley,  L.  R.  8   Eq.   139, 

Ames  Trusts   381,  p.   552,   644,   604. 
A.  R.   Beck  Lumber  Co.  v.  Rupp,   188 

111.  562,  80  Am.  St.  Rep.   190,  59  N. 

E.  429,  p.  278,  342. 
Arguello,   In   re,   97    C'al.    190,   31    Pac. 

937,  Ames    Trusts  482,  p.  611. 
Armstrong  v.  flayer,  (Xebr.)   95  N.  AV. 

51.  p.   101. 
Anult  V.  Griggs,  134  U.  S.  316,  10  Sup. 

Ct.   557,  p.   207. 
Arnold  v.  Henry,   155  Mo.  48,  78  Am. 

St.  Rep.  556,  55  S.  W.  1089,  p.  821. 
Arnold  v.  Pawtuxet  Val.  Water  Co.,  18 

R.   I.   189,   26   Atl.   55,   19   L.   R.   A. 

602,  p.  76. 
Arrington  v.   Wiscom,  34  Cal.   365,   94 

Am.  Dec.  722,  2  Ames  Eq.  Jur.  142, 

p.  875. 
Arthur   v.   Oakes,   03    Fed.    310,   Lewis 

253,  p.  840. 
Ashcraft  v.   DeArmond,  44  loAva,  229, 

p.  505. 
Ashton  V.  Dashaway  Ass'n,  84  Cal.  61, 

22  Pac.  000,  23  Pac.  1091,  7  L.  R.  A. 

809,  p.  633. 
Asliton  V.  Thompson,  32  Minn.  25,  41, 

42,  2  Scott  703,  p.  521,  522. 
Ashurst  V.   McKenzie,   92   Ala.   484,   9 

South  202,  1  Keener  381,  p.  860. 

Askew  V.  Rooth,  L.  R.   17  Eq.  426,  p. 
639. 

Aspen  Mining  &  S.  Co.  v.  Rueker,  28 

Fed.  220,  p.  868. 
Aston  V.   Lord   Exeter,   0  Ves.   288.  p. 

860. 
Astor  V.  Hoyt,  5  Wend.  603,  Kircli.  292, 

p.  G93. 


Atcliesoii    V.    :\Iallon,   43   X.    Y.    147,    3 

Aui.  Rep.  678,  p.  492. 
Atkins  V.  W.  &  A.  Fletcher  Co.,  05  \. 

J.  Eq.  658,  55  Atl.   1074,  p.  84,". 
Atkinson  v.  Leonard,  3  Brown  Cii.  2 IS, 

224,  1  Scott  138.  p.  131,  132. 
Atkinson  v.  Miller,  34   Va.    115,    11    S. 

E.  1007,  9  L.  R.  A.  544,  1  Scott  30S, 

p.    740. 
Atlantic      Cotton      Mills      v.       Iiuliau 

Orchard  Mills,  147  Mass.  2(iS.   17  \. 

E.  496,  9  Am.  St.  Rep.  098,  ]>.   :;()S. 
Attenborough  v.  London  etc.  Dock  Co., 

L.  R.  3  C.  P.  D.  450,  p.  794. 
Att'y-Gen.   v.    Abbott,    154   Alass.    323, 

28   X.   E.   346,    13   L.   R.   A.   251.   p. 

271. 
Att'y-Gen.     v.     Algonquin     Club,     153 

Alass.  447,  27  X.  E.  2,   11   L.  R.  A. 

500,  2  Keener  319,   p.   776. 
Atfy-Gen.  v.  Birmingliam,  4  Kay  &  J. 

528,  p  832. 
Att'y-Gen.   v.    Briggs,    104   Mass.   561, 

567,  42  X.  E.  118,  p.  581. 
Att'y-Gen.   v.   Corporation   of   London, 

2  JIacn.  &  G.  247,  256,  257.  13  Beav. 

313,  p.  80. 
Att'y-Gen.     v.     Fitzsimmons,     35     Am. 

Law  Reg.  100,  1  Ames  Eq.  Jur.  622, 

1   Scott  724,  ]).  830. 
Att'y-Gen.  v.  Gaskill,  L.  R.  20  Ch.  Div. 

519,   p.   74,   75. 
Att'y-Gen.  v.  Great  West.  R'y.,   L.   R. 

7  Ch.  707,  p.  030. 
Att'y-Gen.  v.  Hickman,  2  Eq.  ('as.   \hr. 

193,  Ames  Trusts  224,  p.  580. 
Att'y-Gen.  v.   Hunter,   1  Div.  Eq.    fX. 

C.)    12,  1  Ames  Eq.  Jur.  621,  ]).  830. 
Att'y-Gen.  v.  Landisfield,  9  j\Iod.  Rep. 

280,   Ames    Cas.   on   Trusts,   210.   j). 

549. 
Att'y-Gen.    v.    Manchester.    [1893]     2 

Cli.  87,  1  Scott  721,  p.  831. 
Att'y-Gen.  v.  Xichol,  16  Ves.  338,  342, 

1  Ames  Eq.  Jur.  534,  1  Keener  651, 

p.  834. 
Att'y-Gen.  v.  Richards,  2  Austr.   603, 

1  Ames  Eq.  Jur.  615,  p.  830. 
Att'y-Gen.  v.   Sheffield  Gas.  Co.,  3  De 

Gex'.  ]\r.  &  G.  304,  1  Keener  682.  p. 

830. 
Att'y-CJen.   v.   Stejdiens,  0  De  Gex,  M. 

&  G.   11 L   133.  p.  867. 


926 


TABLE   OF    CASKS    CITED. 


Att'y-Gen.  v.  Tudor  Ice  Co.,  104  :Mass. 

239,    0    Am.    Kep.    227,    bhep.    3,    p. 

821. 
Att'y-Gen.  v.  \\illiams,  174  Mass.  476, 

55  N.  E.  77,  1  Ames  Eq.  Jur.  619,  p. 

830. 
Att'y-Gen.  v.  Wilson,  Craig  &  P.  1,  28, 

p.  621. 
Att\\oo(l  V.  Small,  6  Clark  &  F.  232, 

359,  p.  455,  458,  460. 
Austin  V.  Bell,  20  Johns.  442,  11  Am. 

Dec.   297,  p.   556. 
Austin  V.   Underwood,   37   111.   438,   87 

Am.  Dec.  254,  p.  345. 
Aveling  v.  Knipe,  19  Ves.  441,  p.  189. 
Averill  v.  Taylor,  8  N.  Y.  44,  p.  38(i. 
Avery   v.   Clark,   87   Cal.   619,  25   Pac. 

919,  22  Am.  St.  Rep.  272.  p.  748. 
Aydlett  v.  Pendleton,  111  N.  C.  28.  16 

S.  E.  8,  32  Am.  St.  Rep.  776,  p.  867. 
Ayers  v.  Dixon,  78  X.  Y.  318,  322,  323. 

]).  713. 
Ayloffe  V.  Duke,  2  Freem,  Cli.  152,  p. 

849. 
Ayres  Ex  parte,  123  U.  S.  443,  8  Sup. 

Ct.   164,  31  L.  ed.  216,  p.  822. 
Ayres  v.  Duprey,  27  Tex.  593,  605,  86 

Am  Dec.  057,  p.  343. 


B. 


Backer  v.  I'jTie,  130  Ind.  288,  30  X.  E. 

21,  30  Am.  St.  Rep.  231,  p.  459. 
Bacon   v.    Bronson,   7   Johns.   Ch.    194, 

201.  11   Am.  Dec.  449,  p.  473. 
Baddeley  v.  Baddeley,  L,  R.  9  Ch.  Div. 

113,  Ames  Trusts  170,  p.  559. 
Bado-er  v.  Badger,  2  Wall.  87,  94,  17  L. 

ed.  836,  2  Scott  766,  p.  199,  476. 
Badger  v.  Boardman,   16  Gray,  559,  2 

Keener  473,  p.  776. 
Badgley  v.  Bruce,  4  Paige  98,  p.  865. 
Baers  Appeal,  127  Pa.  St.  360,  18  Atl. 

1,  4  L.  R.  A.  609,  p.  614. 
Raggett  V.   Meux,    1    Phill.    Ch.    627,    1 

Coll.  C.  C.   138,  p.  f)43. 
Bailey  v.  Bailey,  2  Del.  Ch.  95,  p.  t)25. 
Bailey  v.   Barnes,   [1894]    1    Ch.  25,   7 

Reports,  9,  p.  269. 
Bailey  v.  Briggs,  56  X.  Y.  407,  p.  675. 
Bailey  v.  Duncan,  4  ^lon.  256,  2  Keener 

343,   2   Scott   417,   p.    102. 


Bailey  v.   Gardner,   31    W.  Va.    94,   l> 

S.   E.   636,   13  Am.  St.  Rep.   847,  p. 

638. 
Bailey   v.   Hemenway,    147   Mass.    326, 

p.  590. 
Bailey  v.   Piper,  L.  R.   18   Eq.   C83,   2 

Keener  343,  p.  905. 
Bailey  v.  Schnitzius  45  X.  J.  Eq.  178, 

16  Atl.  620,  1  Keener  863,  p.  848. 
Bailey  v.   Tillinghast,    (C.   C,   A.)    99 

Fed.  801,  807,  p.   119. 
Baily  v.  Hornthal,  154  N.  Y.  648,  661, 

61   Am.  St.  Rep.  645,  652,  49  X.  E. 

56,  p.  63,  68. 
Baily  v.  Smith,  14  Ohio  St.  396,  84  Am. 

Dec.  385,  Kirch.  667,  p.  329,  715. 
Baily   v.  Taylor,    1   Russ.   &  il.   23,    1 

Ames  Eq.  Jur.  654,  p.  838. 
Bainbrigge  v.  Baddeley,  3  Macn.  &   G. 

413,  419,  p.  802,  804. 
P>aines  v.   Baker,   1   Amb.   158,   1    Scott 

720,  p.  831. 
I'.akei-  V.  Biddlc,  1  Bald.  394,  403-411, 

p.    144. 
Baker  v.  Bliss,  39  X.  Y.  70,  74,  78,  p. 

269,  270. 
Baker  v.  Bradley,  7  De  Gex,  ]\I.  &  G. 

597,  p.  522. 
Baker  v.  Cunningham,  162  ]Mo.  134.  62 

S.  W.  445,  85  Am.  St.  Rep.  490,  p. 

198. 
I'.akor  V.  Humphrey,  101  U.  S.  499,  p. 

520. 
Baker  v.   Mather,  25  Mich.   51,   53,   p. 

281. 
Baker   v.   :Monk,   4   De   Gex,   J.    &    S. 

388,  p.   523. 
Baker  v.  Sebright,  L.  R.  13  Ch.  D.  179, 

1  Keener  515,  p.  828,  829. 
Baker  v.  Varney,  129  Cal.  564,  79  Am. 

St.  Rep.   140,  62  Pac.   100.  p.  805. 
ISaker  v.   Vining,   .30  Me.    121,   126,   50 

Am.  Dec.  617,  p.  591. 
Bald  Eagle  Val.  R.  Co.  v.  Xittaiiy  Val. 

R.   Co..  171  Pa.  St.  284,  50  Am.  St. 

Rep.    807.   33   Atl.   239,   29   L.    R.   A. 

423,  p.   776. 
Baldwin   v.    Aldrichs,    34   Vt.    532,    80 

Am.  Dec.  695.  p.  867. 
I'.aldwin  V.  Davidson,   139  Mo.   118,  61 

Am.   St.  Rep.  460,  40  S.  W.   765,  p. 

8.54. 
Baldwin  v.  Sager,  70  111.  503,  p.  365. 


TABLE   OF    CASKS    CITED. 


927 


3all  V.  Tompkins,  41  Fed.  4S(i,  489.  p. 

142. 
Ballon  V.  Inhabitants  of  Hopkinton,  4 

(h-ay,  324,  ;}28,  1  Keener  174,  p.  113. 
Baltimore  &   O.   K.   Co.   v.   Arthur,   90 

X.   Y.   234,   2   Ames   Eq.   Jur.    13,    1 

Keener  293,  p.  791,  794,  795. 
Banco    De    Lima     v.     Anglo-Penivian 

Bank,  L.  R.  8  Ch.  Div.  160,  175,  p. 

30(5. 
Bancroft   v.    Consen,    13    Allen,    50,   p. 

295. 
Bancroft  v.  Otis,  91  Ala.  279,  24  Am. 

St.  Rep.  904,  8  South.  286,  p.  514. 
Bank  v.  Sneed,  97   Tenn.   120,  56  Am. 

St.  Rep.  788,  36  S.  W.  716,  34  L.  R. 

A.  274,  p.  505. 
Bank  of  Florence  v.  U.  S.  S.  &   L.  Co., 

104  Ala.  297,  16  South.  110,  H.  &   B. 

897,  p.  802,  808. 
Bank  of  Hindustan  v.  Alison,  L.  R.  6 

Com.   P.  54,  222,  p.   395. 
Bank   of   Kentucky   v.    Stone,   88    Fed. 

383,  391,  p.  108. 
Bank  of  Mendocino  v.   Baker,  82   Cal. 

114,  22  Pac.  1037,  (i  L.  R.  A.  833,  p. 

275. 
Bank  of  Ukiah  v.  Rice,   143  Cal.  265, 

76  Pac.  1020,  101  Am.  St.  Rep.  118, 

p.   684,  685. 
Bank  of  United  States  v.  Davis,  2  Hill. 

451,  461,  464,  p.  304. 
Bank  of  Utica  v.   Mersereau,   3   Barb. 

Ch.  528,  49  Am.  Dec.   189,  7  Paige, 

517,    p.    81. 
Bank  of  Woodland  v.  Heron,   120  Cal. 

614,  52  Pac.  1006,  p.  808. 
Baptist     Ass'n.     v.     Hart's     Ex'rs,     4 

Wheat.  1,  p.  580,  582. 
Barbour  v.  Xat.  Exch.  Bank,  45  Ohio 

St.  133,  12  N.  E.  5,  p.  809. 
Barker   v.    Vansommer,    1    Brown    Ch. 

149,  p.  486,  497. 
Barker's  Trusts,  In  re,  1   Ch.  Div.  43, 

Ames   Trusts,   223,   H.    &    B.    54.    p. 

624. 
Barnard  v.  Campau,  29  !Mich.   162.   p. 

270. 
Barnard    v.    Campbell.    55    N.    Y.    453. 

462.  463,  p.  398. 
Bavned    Banking   Co..    In    re,   39   L.   J. 

Ch.  635,  Ames  Trusts  42,  p.  569. 


Barned's  Bank,  In  re,  L.  R.  2  Ch.  350, 

p.   79. 
Barnes    v.    McClinton,    3    Penr.    «S:    W. 

67,  23  Am.  Dec.  62,  p.  264. 
Barnes   v.   Milne,   1   Rich.   Eq.   459,  24 

Am.  Dec.  422,  p.  854. 
Barnes  v.  Sanimons,   128  Ind.  596,  27 

N.  E.  747,  p.   133. 
Barnes   v.   Wood,   L.   R.   8   Eq.   424,    1 

Ames  Eq.   Jur.   249,  2   Scott   395,   2 

Keener  1228,  p.   906. 
Barnesly  v.  Powel,  1  Ves.  Sr.  284,  287, 

p.  439. 
Barnett  v.  Cline,  60  Me.  205,  p.  2757. 
Barnett  v.  Nelson,  54  Iowa,  41,  37 'Am. 

Rep.  183,  6  N.  W.  41,  p.  718. 
Barney  v.  McCarthy,  15  Iowa,  510,  83 

Am.  Dee.   427,  p.  372. 
Baron  v.  Korn,   127  N.  Y.  224,  27   X. 

E.   804,   1   Keener   640,  p.   844. 
Barrett  v.   Baker,   136  Mo.   512,  37   S. 

W.    130,   p.   266. 
Barrett  v.   Hartley,   L.   R.   2   Eq.   789, 

795,  p.   622. 
Barrett  v.  Hinckley,  124  111.  32,  14  X. 

E.  863,  7   Am.   St.  Rep.  331,  Kirch. 

(')34.  H.  a  B.  5.57,  p.  689,  692,  714. 
Barrett  v.  Weber,  125  X.  Y.  18,  25  X. 

E.  1068,  p.  497. 
Barrier   v.    Kelly,     (Miss.)    33    South. 

974,  p.  230,  231. 
Barrow    v.    Barrow,    18    Beav.    529,    2 

Ames  Eq.  Jur.   199,  p.  430.  437. 
Barrow   v.   Rhinelander,    1    Johns.    Cii. 

5.50,  1   Scott  469.  p.  920. 
Barrow   v.   Richard,   8   Paige,   351.   35 

Am.  Dec.  713,  1  Ames  Eq.  Jur.  173, 

2   Scott  521,   2   Keener  461,   p.   319, 

776. 
Barrow    v.    Trustees,    [1891]    1    Q.    B. 

417.  p.  226. 
]?arry  v.   Barry.    1    Jac.   &   W.    651,    1 

Keener  465,  p.  828. 
Barry    v.    Stevens,    31    Beav.    258.    1 

Ames   Eq.   Jur.   451,   3    Keener   910, 

p.    918. 
Barstow    v.     Savage    ^Mining    Co..    64 

Cal.   388.   49   Am.   Rep.   705,    1   Pac. 

349.  p.  332. 
Harth    v.    Backus,    140   X.   Y.   230,    37 

Am.   SI.  Rep.   545.  35  X.  E.  425,  23 

L.  R.  A.  47,  p.  811. 


928 


TABLE   OF    CASES    CITED. 


Barth  v.  Ueiiel,   11   Colo.  494,   19  Pac. 

471,  p.  557. 
Bartle  v.  Coleman,  29  U.  S.    (4  Pet.) 

184,  7  L.  eel.  825,  Shep.   109,  p.   185. 
Eartlett  v.   Cicero  Light  etc.   Co.,   177 

111.  ()8,  69  Am.  8t.  Rep.  206,  52  N. 

E.  339,  42  L.  E.  A.  715,  p.  810. 
Haiton  V.  Barbour,   104  U.  S.   126,  20 

L.  ed.  673,  p.  809. 
Bascombe   v.    Beckwith,    L.    R.    8    Eq. 

100.  2  Keener  963,  p.  431. 
Basket   v.    Hassell,    107    U.    S.    602,   2 

Sup.  Ct.  415,  27  L.  ed.  500,  p.   667. 
Basket  v.  Moss,   115  X.  C.  448,  20   S. 

E.   733,  44  Am.   St.   Rep,  463,  48   L. 

R.  A.  842,  p.  494,  501. 
Bass  V.  Met.  W.  S.  El.  R.  Co.  82  Fed. 

857,   27    C.   C.   A.    147,   39   L.   R.   A. 

711,  p.   824. 
Basset    V.    Nosworthy    Cas.    T.    Finch, 

102,  2  Lead.  Cas.  Eq.  1,  4,  31,  33-42, 

46,    73-96,   and    notes,    1    Scott   340, 

498,   p.    196,   314,   357,   358,   370. 
Bassett   v.    Leslie,    123    X.    Y.    396,    25 

X.  E.  386,   1  Keener  266,  Shep.  319, 

p.  790.  793,  798. 
Batavia  v.   Wallace.    102   Fed.   240,   42 

C.  C.  A.  310,  p.  303. 
Bate  V.   Hooper,    5   De   Gex,   ^1.   &   G. 

338,  p.  613. 
Bateman    v.    ^^'illoe.    1    Sclioales    &    L. 

201,  204,  206,  p.  850. 
Bates    V.    American   Mortgage   Co.,    37 

S.  C.  88,  16  S.  E.  883,  21   L.  R.  A. 

340.   p.    303. 
Bates   V.   Hurd,   65  Me.    180,   H.   &   B. 

368,  p.  566,  567. 
Bates    V.    .Johnson,    Jolins.    304,    Ames 

Trusts  292,  p.  373. 
Bath    Sav.    Inst.    v.    Hathorn,    88    Me. 

122,   51    Am.    St.   Rep.   382.   33    Atl. 

836,  32  L.  R.  A.  377,  H.  &  B.  400, 

p.  558,  559. 
Batty  V.  Gliester,  5  Beav.  103,  3  Keener 

849,    p.    496,    500,    501. 
Batty  V.   Lloyd,   1    Vern.   141,   2   Scott 

672,  3   Keener  504,  p.  484. 
Baum  V.  Grigsby,  21  Cal.  172,  81  Am. 

Dee.  153,  p.  750. 
Baxendale   v.    Scale,    19    Beav.    601,    2 

Keener  943,  p.  428. 
Bay  City  Bridge  Co.  v.  Van  Etten,  36 

Mich.  210,  p.  65. 


Bayler  v.  Comm,  40  Pa.  St.  37,  80  Am- 

Dec.  551,  Shep.  217,  p.  769. 
Bayspoole  v.  Collins,  L.  R.  6  Ch.  228, 

232,  p.  533. 
Bay  State  Iron  Co.   v.  Goodall,  39   X. 

H.    223,    230,    75    Am.    Dec.    219,    p. 

910. 
Beal  V.  Brown,  13  Allen  114,  p.  914. 
Beal  V.  Warren,  2  Gray,  447,  p.  534. 
Beall  V.  Smitli.  L.  R.  9  Ch.  85,  91,  p. 

786. 
Bearden   v.    Benner,    120    Fed.    690,   p. 

868. 
Beatty  v.  Clark,  20  Cal.  11,  30,  p.  410. 
Beatty  v.  Dixon,  56  Cal.  622,  p.  866. 
Beatty  v.  Kurtz,  2  Pet.  566,  584,  7   L. 

ed,  521,  p.  843. 
Beaufort  v.  Collier,  6  Humph.  487,  44 

Am.  Dec.  321,  p.  639. 
Beaupland  v.  McKeen,  28  Pa.  St.   124, 

131,   70  Am.  Dec.   115,  p.  395. 
Beavan  v.  Earl  of  Oxford,  6  De  Gex, 

:M.  &  G.  507.  .-il7,  518,  p.  341. 
Beaver  v.  Beaver,   117   X.   Y.   421,    18 

Alii.    St.   Rep.   531,   6   L.   R.   A.   403, 

22  X.  E.  940,  H.  &  B.  396,  p.   559, 

569. 
Beck  V.  Allison,  56  X.  Y.  366,  15  Am. 

Rep.    430,    1    Ames  Eq  Jur.    70,    2 

Keener   167,  2   Scott  79,  p.  887. 
Beck  V.  Flournoy  Live-Stock  &   R.   K. 

Co.,  65  Fed.  30,  12  C.  C.  A.  497.  27 

U.   S.   App.   618,  p.  494. 
Beck  V.   Uhrich,   13   Pa.    St.   636.   (i39. 

53    Am.    Dec.    507,    16    Pa.    St.    -J'.!9. 

p.    365. 
Beck  Lumber  Co.  v.  Rupp,  188  111.  562. 

80  Am.   St.  Rep.   190,  59  X.  E.  429, 

p.  278,  342. 
Beekman  v.   Hudson,  20  W'end.   53,   p. 

489. 
Belchier,    In    re,    Ambler,    218,    Ames 

Trusts  516,  p.  611. 
Belding  v.  Meloche,   113  Mich.  223,  71 

X.  W.  592,  H.  &   B.  862,  p.  806. 
Bell  V.  Cundall,  Amb.  102,  2  Scott  640, 

p.  374. 
Bell  V.  Pelt,  51  Ark.  433,  11  S.  W.  684, 

14  Am.  St.  Rep.  57,  4  L.  R.  A.  247, 

p.  740. 
Bell  V.  Pleasant.  145  Cal.  410.  78  Pac. 

957,    p.    367. 
Bell  V.  Twilight,  22  X.  H.  500,  p.  282. 


TABLIO    01'    CASi;.s    CI'l'Kl). 


929 


Bell  V.   Walker,   1    Bro.   C    C.   451,    1 

Ames  Eq.  Jur.  650,  p.  S38. 
Bellairs  v.  Bellairs,  L.  R.   IS  Eq.  510, 

]>.  4S!». 
Bellamy  v.  Sabine,  1  De  Gex  &  J.  5(50, 

578,  580,  584,  p.  283,  287,  288. 
Belmont   v.   Coman,  22   X,   Y.  438,   78 

Am.   Dec.   213,   p.   710. 
Belt's  Estate,  In  re,  29  Wash.  535,  92 

Am.  St.  Rep.  910,  70  Pac.  74,  p.  G09. 
Benbow  v.  Low,  L.  R.  16  Ch.  Div.  93, 

p.  80. 
Benbow   v.   Townseud,    1    divine   &    K. 

506,   p.   592. 
Bence  v.  Shearman,   [1898]   2  Ch,  582, 

]).   328. 
Bench  v.  Sheldon,  14  Barb.  06,  p.  465. 
Benedict  v.  Lynch,  1  -lolins.  Ch.  370,  7 

Am.  Dec.  484,  2  Keener  1074,  p.  900. 
Bennett,   Ex   parte,    10   Ves.   381,   393, 

394.  p.  515. 
Bennett  v.  Bennett,   (Xebr.)    91  N.  W. 

409,  p.  506. 
Bennett  v.  Butterworth,   11   How.   669, 

674,  675,  13  L.  ed.  859,  p.  139. 
Bensick  v.  Cook,  110  IMo.  173,  19  S.  W. 

642,  33  Am.  St.  Rep,  422.  p.  385. 
Benson  v,  Markoe,  37  Minn.  30,  33  N.. 

W.   38,  5  Am.   St.   Rep.  816,  p.   416. 
Bentley  v.   Craven,  18  Bear.  75,  H.  & 

B.  5.30,  p.  517,  518,  523. 
Bergman  v.  Bergman,  43  Oreg.  456,  72 

Pac.   1086,   73  Pae.  341,  99  Am.   St. 

Rep.  771,  p.  2a6. 
Bernard  v.  Toplitz,  160  INIass.   162,  35 

N.   E.   673,  39  Am.  St.  Rep.  465,  p. 

721. 
Berney  v.  Sewell,  1  .Jacob  &  W.  647,  p, 

805. 
Bcrnz  v.  Marcus  Sayre  Co.,  52  N.  J. 

Eq.  275,  30  Atl.  21,  p.  65. 
Berry  v.   ilut.   Ins.   Co.,  2   Johns.   Ch. 

603,  608,   1   Scott  331,  Shep.  104,  p. 

195.  314,  339. 

Bertman  v.  Whipple,    (R.   T.)    57   Atl. 
379,    p.   510. 

Bethea    v.    Bethea,    116    Ala.    265,    22 

South.  561,  p.   178. 
Bethel!  v.  Abraham.  L.  R.   17  Eq.  24. 

p.  614. 
Betlie'l  V.  Bethell,  92  Ind.  318,  327,  p. 

444. 

59 


Itethlelieni   v.   Annis,  40   X.  H.   34,  40, 

77  Am.  Dec.  700,  p.  761. 
Beverley  v.  Brooke,  4  Gratt.   187,  208, 

p.   802. 
Bewick  v.  Whitfield,  3  P,  Wms.  267,  1 

Keener  505,  p.  829. 
Bickerstaff   v.    :\Iarlin.    GO    Miss.    509, 

45  Am.  Rep.  418,  p.  .521. 
Bidwell   V.    Astor   Ins.    Co.,    10   X.    Y. 

203,  267,  p.  100. 
Bigbee  v.  Summerour,  101  C4a.  201,  28 

S.  E.  642,  p.  804. 
Bigelow  v.  Amies,  108  U.  S.  10.  1  Sup. 

Ct.  83,  27  L.  ed.  631,  2  Keener  (i»i4. 

p.    903. 
Biggs  V.  Hoddinott,   [1898]   2  Ch.  307, 

Kirch.   475,   p.    698. 
Bigler   v.   Jack,    114    Iowa,   667,   87    X. 

W.  700,  p.  700. 
Bigley  v.  Jones,  114  Pa.  St.  517,  7  At!. 

54,  p.   372. 
Billage   v.    Southee,   9   Hare   534,   540, 

594,  p.  513. 
Bindseil  v.  Smith,  61  X.  J.  Eq.  654.  47 

Atl.  456,  p.  68. 
Bingel  v.  Volz,  142  111.  214,  31  X.  E.  13, 

34  Am.  St.  Rep.  64,  16  L.  R.  A.  321, 

p.  438. 
Bingham  v.  Bingham,  1  Yes.  Sr.  126.  2 

Ames   Ecj.   .lur.   264,   3   Keener   5,   2 

Scott  543,  p.  424,  425,  437. 
Bingham's  Appeal,  64  Pa.   St.   345.   p. 

253. 
Binghamton  Bridge,  The,  3  Wall.  51,  18 

L.  ed.   137,  p.  841. 
Birch  V.  Anthony,   109  Ga.   349,   34  S. 

E.  501.  77  Am.  St.  Rep,  379,  p.  488. 
P.irke  v.   Abbott,   103  Ind.    1,    1    X.   E. 

485,  53  Am.  Rep.  474,  p.  711.  717. 
Birmingham  v.   Kirwan,  2   Schoales  & 

L.  444,  449,  450,  452,  p.  235. 
Birmingham    Trust    &    Sav.    Bank    v. 

Louisiana   Xat.   Bank,   99   Ala.    379, 

13   South.   112,  20  L.   R.   A.   (iOO,   p. 

303. 

Bisco  v.  Earl  of  Banbury,  1   Cas.   Ch. 
257,   p.  280. 

Bishop  V.  Moorman,  98  Ind.  I,  49  Am. 

Rep.    731,   2   Ames   Eq.    Jur.    156,   p. 

S.-.d.   874.   877. 
Bishop  V.  Woodward,  103  Ga.  281,  20 

S.  E.  968,  p.   132, 


930 


TABLE   OF    CASES    CITED. 


Eishop  of  Hereford  v.  Adams,   7  Ves. 

324,  p.  577. 
Bishop  of  London  v.  Web,   1   P.  Wms. 

527,  1  Keener  434,  p.  828. 
Bishop  of  Winchester's   Case,   1   Rolle 

Abr.   380,   1  Ames  Eq.  Jur.  469,  p. 

828. 
Black  V.   Black,  26  N.  J.   Eq.   431,  p. 

77. 
Black  V.  Boyd,  50  Ohio  St.  4G,  33  N. 

E.  207,  p.  68. 
Black  V.  Shreve,  7  N.  J.  Eq.  440,  456, 

457,  p.   108. 
Blackburn   v.   Randolph,   33   Ark.    119. 

2  Ames  Eq.  Jur.  183,  p.  859. 
Blackett  v.   Bates,   L.   R.   1   Ch.   117,  2 

Keener  154,  p.  888. 
Black  Hills  etc.  R.  Co.  v.  Tacoma  Mill 

Co.,   129  Fed.  312,  03  C.  C.  A.  544, 

p.   824. 
Eiackstone  v.  Blackstone,  3  Watts,  335, 

337,  27  Am.  Dec.  359,  p.  658. 
Blake     v.     Greenwood     Cemetery,     14 

Blatchf.   342,   Fed.   Cas.   No.   1,   497, 

p.  837. 
Blakeman  v.  Blakeman,  39  Conn.  320, 

3  Keener  72.  2   Scott  569,  p.  424. 
Bland  v.   Bland,   90   Ky.   400,   29   Am. 

St.    Rep.    390,    14    S.    W.    423,    9    L. 
R.  A.  599,  p.  551. 
Bland  v.  Dawes,  L.  R.  17  Ch.  Div.  794, 

797,   p.   039.     . 
Elamly   v.   Widmore,    1   P.    Wms.   324, 

2   Vern.   209,   2   Lead.   Cas.   Eq.,   4th 

Am.  ed.  834,  842,  Shep.   126,  1  Scott 

326,  p.  252. 
Blatch  V.   Wilder,   1   Atk.  420,  p.   570. 
Bleakley's  Appeal,  66  Pa.  St.  187,  191, 

H.  &  B.  31,  Shep.   Ill,  p.   183,  185, 

186,  915. 
Blew    V.    McClelland,    29    Mo.    304,    1 

Ames  Eq.  Jur.  237,  p.  163. 
Bliley   v.    Wheeler,   5   Colo.   App.   287, 

38  Pac.  603,  p.  225. 
Bliven  v.   Seymour,   88   N.   Y.   469,   p. 

659. 
Blondheim  v.  :Moore,  11  Md.  365,  Shep. 

.321,  p.  802,  806,  808. 
Bloodgood    V.    Clark.    4   Paige   574,    p. 

806. 
Bloomer   v.    Henderson.    8    ]Mich.    395, 

402,   404,   405.   77   Am.   Dec.   453,   p. 

277. 


Bloomer  v.   Spittle,  L.  R.   13  Eq.  427, 

2  Ames  Eq.  Jur.  309,  3  Keener  398, 

p.    859. 
Bloonitield    State    Bank    v.    Miller,    55 

Xebr.  243,  70  Am.  St.  Rep.  381,  75 

X.  W.  569,  44  L.  R.  A.  387,  p.  756. 
lilouin  V.  Phaneuf,  81  Me.  176,  46  Atl. 

540,  p.  570. 
Blumer  v.  Hunter,  L.  R.  8  Eq.  46,  p. 

531. 
Boals  V.  Bachman,  201  HI.  340,  66  X. 

E.  336,  p.   180. 
Bockes   V.    Lansing,    74   X.    Y.    437,    2 

Ames  Eq.  Jur.  152,  p.  876. 
Boddy  V.  Henry,   113  Iowa,  462,  85  N. 

VV.  771,  53   L.  R.  A.   769,  p.  450. 
Bodley  v.  Taylor,  5  Cranch,   191,  221, 

222,  p.   144. 
ISoggs  V.  ^kleroed  M.  Co.,   14  Cal.  279, 

367,  368,  379,  p.  393. 
Bohart    v.    Chamberlain,    99    Mo.    622, 

13   S.  W.  85,  p.   132. 
Boisseau   v.    Boisseau,    79    Va.    73,    .52 

Am.  Rep.  016,  p.  608. 
Boles   &   British   Land   Co.'s   Contract, 

In  re,  [1902]  1  Ch.  244,  p.  515. 
Bolman  v.  Overall,  80  Ala.  451,  60  Am. 

Rep.  107,  2  South.  624,  p.  881. 
Bolton   V.   McShane,   67   Iowa   207,   25 

X.  W.   135,  p.  824. 
Bond  V.  Hopkins,  1  Schoales  &  L.  413, 

429,  433,  p.  30. 
iJoiul  V.  ^Montgomery,  56  Ark.  563,  20 

S.   W.  .525,  35  Am:  St.  Rep.   119,  p. 

503,  915. 
Bonney  v.  Seely,  2  Wend.  481,  p.  914. 
Booker  v.  Wingo,  29  S.  C.  116,  7  S.  E. 

49,  p.  501. 
Boone   v.    Citizens'    Sav.    Bank,   84   N. 

Y.  S3,  38  Am.  Dec.  498,  p.  550. 
I'.oone  V.  Clark,  129  HI.  466,  21  N.  E. 

850,  5  L.  R.  A.  276,  p.   181. 
Boos    V.    Morgan,    130    Ind.    305,    30 
Am.   St.  Rep.  237,  30  N.  E.   141,  p. 
382,  385. 
Booth  V.  Clark.  17  How.  322,  331,  15 

L.  ed.  164,  Shep.  327,  p.  802,  811. 
Bore!  v.   iNIead,   3   X".  Mex.   84,  2   Pac. 

222.   1   Ames  Eq.  Jur.  434,  p.  892. 
Borer  v.  Chapman,  119  U.  S.  587.  600, 
7  Sup.  Ct.  342.  348,  1   McCrary,  50, 
51,   1    Fed.  274,  p.   142. 


TABLE    OF    CASKS    CITED. 


931 


Bornenian  v.  Sidlino;er,  15  Me.  42i),  33 

Am.  Dec.  ()2(),  p.  007. 
Bosaiiquett  v.  Dashwood,  Cas.  t.  Talb. 

38.  40,  41,  2  Scott  067,  p.  497,  500. 
Ijoslier  V.  Richmond  etc.  Land  Co.,  89 

Va.   455,    10   S.   E.   300,   37   Am.   St. 

Rep.   879,    p.    118,   474. 
Bosley  v.  Taylor,  5  Dana  157,  30  Am. 

Dec.  077,  p.  914. 
Rossick   Min.    Co.    v.    Davis,    11    Colo. 

130,   17   Pac.  294    p.  377. 
Boston   V.   Robbins,   120  31ass.  384,   p. 

007. 
Boston  &  Lowell  R.  Corp.  v.  Salem  & 

L.  R.  Co.  2  Gray   127,  p.   841. 
Boston   Diatite    Co.    v.    Florence    ^Ifg. 

Co.,  114  Mass.  09,  19  Am.  Rep.  310, 

1   Keener  51,   Sliep.  303,  Lewis  320, 

p.  845. 
Bostwick  V.  Beach,   105  X.  Y.  061,   12 

N.  E.  32,  H.  &  B.  003,  p.   163. 
Bosworth  V.  Allen,  168  X.  Y.  157,  164, 

85  Am.  St.  Rep.  067,  61  X.  E.   163, 

55  L.  R.  A.  751,  p.   007. 
Bottomly  v.   Lord   Fairfax,  Precedents 

in    Ch.    336,    Ames    Trusts    375,    p. 

552. 
Botts  V.  Gooeh,  97  ilo.  88,  11  S.  W.  42, 

10  Am,  St.  Rep.  286,  p.  638. 
Bouck  V.  Wilbur,  4  Johns.  Ch.  405,  2 

Keener   125,  p.  884. 
Boursot   V.    Savage,   L.   R.   2   Eq.    134, 

142,  p.  303,  308. 
Boutts  V.  Ellis,  4  De  Gex,  M.  &  G.  249, 

]).  6()7. 
Bovill  V.  Hitchcock,  L.  R.  3  Ch.  App. 

417,  p.  835. 
Bovill   V.    Crate,   L.    R.    1    Eq.   388,   p. 

837. 
Bowen  V.  Prout.  52  111.  354,  p.  360. 
Bowers    v.    Smith,    10    Paige,    193,    p. 

075. 
Bowers  Dredging  Co.  v.  X.  Y.  etc.  Co., 

77  Fed.  980,  p.  836. 
Bowker   v.    Pierce,    1.30   INLiss.    262.    p. 

623. 
Bowles  v.  Round.   5  Ves.   508,   1    Ames 

Eq.  Jur.  361,  2  Keener  853.  j).  458. 
Bowling  V.  Cook.  39  Town.  200.  p.  350. 

T5owman  v.  P]iillips,  41  Kan.  364.  21 
Pac.  230.  13  .\iii.  St.  Rep.  292,  3 
L.  R.  A.  631,  p.  490. 


Boxheimer  v.   Gunn,   24  Mich.   372.   ]>. 

710. 
Boyce  v.  Allen,   105   Iowa,  249,   74   X. 

\V.  948,  p.  ijo. 
Boyce's   Ex'rs   v.   Grundy,   3   Pet.   210, 

215,  9  L.  ed.   127,  Shep.   19,  p.   143, 

144,  853,  861. 
Boyer  v.  East,  161  X.  Y.  580,  76  Am. 

St.  Rep.  290,  56  X.  E.  114,  p.  521. 
Boykin  v.  Ancrum,  28  S.  C.  486,  (i  S. 

E.    305,    13    Am.    St.    Rep.    698,    p. 

379. 
Boyle   V.    Boyle,    152    Pa.    St.    108.    34 

Am.    St.    Rep.    629,   25    Atl.    494,   p. 

571. 
Boylston  v.   Rankin,   114  Ala.   408,  21 

South.  995,  62  Am.  St.  Rep.   Ill,  p. 

398. 
Boynton  v.  Hubbard,  7  3Iass.  112,  119, 

p.  512, 
Bozon  V.  Farlow,  1  :\Ier.  459,  p.  886. 
Brace   v.    Duchess    of   Marlborougli,    2 

P.   Wms.   491,   1    Scott  330,   350,   p. 

195,  347,  373,  737. 
Bradford   v.    Greenway,    17    Ala.    797, 

805.   52  Am.   Dec.   203,   p.   642,   653. 
Bradford  v.  Union  Bank,   13  How.  55, 

57,  66,  Shep.  259,  p.  432. 
Bradish  v.  Gee,  Amb.  229,  1  Scott  636, 

p.   685. 
Bradley   v.   Riches,    L.   R.    9    Cli.    Div. 

189,  195,  196,  p.  307,  339,"  340. 
Brady  v.  Waldron,  2  Johns.  Ch.  148,  1 

Ames  Eq.   Jur.   483,    1    Scott   661,   p. 

829. 
lirage  v.  City  of  Stockton,  27  Fed.  509, 

p.  S37. 
Bragg   Mfg.    Co.   v.   City   of   Hartford, 

56  Fed.  292,  p.  838. 
Brainard    v.    Buck,    184    U.    S.    99,    22 

Sup.    Ct.    Rep.    458,    46   L.    ed.    449, 

p.    590. 
Bramley  v.  Alt,  3  Ves.  620,  p.  493. 
Brandon    v,     Robinson.     18     Ves.     429. 

Ames  Trusts  394,  p.  551. 
Brandreth  v.  Lanee,  8  Paige  24.  34  An>. 

Dec.  368,  1   Keener  47,  1   Scott  228, 

Lewis  303,  p.  845. 
Brandt  v.  Allen,  76  Iowa  50.  40  X.  W. 

32.  1  L.  R.  A.  653,  p.  808. 
Brant  v.  Brant,  40  Mo.  266,  p.  236. 
Brant  v.  Virginia   Coal   Co.,   93   U.  S. 

326,  335,  p.  393. 


932 


TABLE   OF    CASES   CITED. 


Braxton  v.  State,,  25  Ind.  82,  p.  191. 
Breed  v.  National  Bank  of  Auburn,  68 

N.  Y.   Supp.  G8,  57   App.  Div.  4G8 ; 

affirmed,    171    N.   Y,   G48,   63   N.   E. 

1115,  p.   181. 
Breslin    v.    Fries-Brcslin    Co.,    (N.    J. 

Eq.)    58    Atl.    313,    p.   402. 
Breton's  Estate,  In  re,  17  Ch.  Div.  416, 

Ames  Trusts   171.  p.  559. 
Brewer  v.  Herbert,  30  Md.  301,  96  Am. 

Dec.  582,  H.  &  B.   173,   1   Scott  425, 

2  Keener  421,  p.  163,  407. 
Brewer  v.  Marshall,  19  X.  J.  Eq.  537, 

97   Am.   Dec.  679,  2  Keener   557,   p. 

491,   776. 
Brewer  v.  Nash,  16  R.  1.  458,  27  Am. 

St.  Rep.  749,  17  Atl.  857,  p.  915. 
Brice   v.    Stokes,    11    Ves.   319,    324,    2 

Lead.    Cas.    Eq.,    4th    Am.    ed.    1738, 

1748-1790,  1791-1805,  p.  621. 
Bridge  v.  Wheeler,   152  Mass.   343,  25 

N.  E.   612,   p.   326. 
Bright   V.    Buckman,    39    Fed.    243,    p. 

276,  29.5,  369. 
Brill  V.  Tuttle,  81  N.  Y.  454,  4.57,  547, 

37  Am.  Rep.  515,  p.  764. 
BrinkerhoflF  v.  Brown,  6  Johns.  Ch.  139 

151,   156,  p.   118. 
Brinkman  v.  Jones,  44  Wis.  498,  517, 

519,  521,  523,  p.  262. 
Brinkman  v.   Sunken,  174  Mo.  709,  74 

S.  W.  963.  p.  591. 
Brison  v.   Brison.   75   Cal.   525,  7   Am. 

St.   Rep.    189,    17    Pac.   689,   p.   445, 

523. 
Broad,   Ex     parte,    13    Q.    B.    D.     740, 

Ames  Trusts   19,  p.  569. 
Broad  v.  Selfe,  9  Jur.,  N.  S.,  885,  Kirch. 

473,  p.  698. 
Broadbent  v.  State,  7  ild.  416,  p.  78. 
Broadway    Nat.    Bank   v.    Adams,    133 

Mass.    170,   43   Am.   Rep.   504,  Ames 

Trusts  397,  p.  551. 
Brock  V.  Berry,  132  Ala.  95,  90  Am.  St. 

Rep.  896,  31    South.  517,  p.   101. 
Eroder   v.    Conklin,    121    Cal.    282,    53 

Pac.  699,  p.  515. 
Broderick's  Will,  In  re,  21   Wall.  503, 

504,  22  L.  ed.  599,  p.  142,  473. 
Brodie  v.   Barry,  2  Ves.   &   B.   127,  p. 

233. 
Bromley  v.  Holland,  7  Ves.  3,   16,   18, 

19-21,  p.   131,   877. 


Brook  V.  Badley,  L,  R.  3  Ch.  672,  074, 

p.  682. 
Brooks  V.  Benham,  70  Conn.  92,  38  Atl. 

908,  39  Atl.   1112,  m  Am.   St.   Rep. 

87,  p.  729. 
Brooks   V.   Martin,   2   Wall.   70,   81,   2 

Scott  790,  p.  500. 
Brooks  V.  Todd,   79   Ga.   692,  4   S.   E. 

156,  p.  498. 
Brooks  V.  Twichell,  182  Mass.  443,  94 

Am.  St.  Rep.   662,  65  N.  E.  843,  p. 

854. 
Brothers  v.  Bank  of  Kaukauna,  84  \\is. 

381,  54  N.  \V.  786,  36  Am.  St.  Rep. 

932,  p.  306. 
Brotzman's  Appeal,  119  Pa.  St.  645,  13 

Atl.   483,  p.   186. 
Brougliton  v.  Cofler,   18  Graft.   184,  p. 

427,  434. 
Broughton  v.  Hutt,  3  De  Gex  &  J.  501, 

3  Keener  32,  p.  421,  424. 
Brown  v.  Bigne,  21  Oreg.  260,  28  Pac. 

11,  28  Am.  St.  Rep.  752,  14  L.  R.  A. 

745,  p.  497. 
Brown  v.  Brabb,  67  :\lich.  17,  34  N.  W. 

403,  11  Am.  St.  Rep.  549,  p.  3(il. 
Brown  v.  Brown,  79  Va.  648,  p.  664. 
Brown    v.    Cole,    14    Sim.    427,    Kirch. 

698,  p.   721. 
Brown   v.    Gellatly.   L.    R.    2    Ch.    751, 

Ames  Trusts  489,  p.  613. 
Brown  v.  Guarantee  Trust  Co.,  128  L'. 

S.  403,  9  Sup.  Ct.  127,  32  L.  ed.  468, 

2  Keener  1109,  p.  899. 
Brown  v.  Higgs,  8  Ves.  561,  569,  570. 

574,  p.  565. 
Brown   v.    Jacobs    Pharmacy   Co.,    115 

Ga.   429,   41    S.   E.   553,   90  Am.   St. 

Rep.    126,  57   L.   R.   A.  547,  p.    184. 
Brown  v.  Kimball  Co.  84  Me.  492,  24 

Atl.   1007,  p.  910. 
BrowTi  V.  Knapp,  79  N.  Y.  136,  140,  p. 

743. 
Brown  v.  ]\IcDonald,   130  Fed.  964,  p. 

75. 
Brown  v.  McGill,  87  Md.  161,  67  Am. 

St.  Rep.  334,  39  Atl.  613,  39  L.  R. 

A.  806,  p.   551. 
Bro\\n  V.   jVlontgomery,  20   N.  Y.   287, 

75   Am.   Dec.   404,   3   Keener  202,  p. 

464,  466,  468. 


TABLE   OF    CASES    CITED. 


933 


Brown    v.    Norman,    C5    iliss.    369,    4 

Soulli.   2i)3,   7   Am.    St.    Rep.   663,   3 

Keener  U99,  2  Scott  747,  p.  470,  471. 
Brown  v.  Pierce,  7  \\all.  205,  H.  &  J3. 

320,  1  Scott  708,  p.  341. 
Brown  v.  Simons,  44  X.  H.  475,  45  N. 

H.   211,   p.  281. 
Brown  v.  Swann,  10  Pet.  497,  p.  94. 
Brown  v.   Volkening,  64  N.  Y.  76,  82, 

83,  p.  202. 
Brown   v.   .Welch,    18    111.   343,   68   Am. 

Dec,  549,  p.  320,  359. 
Brown  v.  Wilson,  21  Colo.  309,  52  Am. 

St.  Rep.  228,  40  Pac.  688,  p.  875. 
Brown  &  Pollak  I.  Co.  v.  H.  B.  I.  Co., 

105  Iowa  624,  75  N.  W.  499,  67  Am. 

St.  Pep.  319,  p.  367. 
Browne's    Will,    In    re,    27    Beav.    324, 

Ames  Trusts,  458,  p.  610. 
Bruce  v.  Tilson,  25  N.  Y.   194,  1  Ames 

Eq.  Jur.  345,  2  Keener  1180,  2  Scott 

35.5,  p.  897,  898. 
Bruen  v.  Gillet,  115  N.  Y.  10,  21  N.  E. 

676,  12  Am.  St.  Rep.  764,  4  L.  R.  A. 

529,  p.  622. 
Ihnimmond  v.  Krause,  8  X.  Dak.  573, 

80  X.  W.  686,  p.  500. 
I'rundage   v.   Biggs,   25   Ohio   St.    652, 

656,  p.  287. 
Bruschke  v.  Wright,   166  111.      183,  57 

Am.   St.  Rep.   125,  46  X.  E.   813,  p. 

315. 
I'rusli   V.   Fisher,   70  Mich.  469,  38  N. 

W.    446,    14    Am.    St.    Rep.    510,    p. 

439,  478. 
Brydges  v.  Brydges,  3  Ves.   120,   125a, 

12(),  p.  380,  550. 
Br\  son  v.  Whitehead,  1  Sim.  &  St.  74,  2 

Scott  124,  p.  491. 
Bul)b's  Case,  Freem.  Ch.  38,  1  Ames  Eq. 

.Tur.  194,  p.  164. 
Buck  V.  Buck,  11  Paige,  170,  2  Keener 

337,   p.    162. 
]',uck  V.   Ward,   97   Va.  209,   33    S.   E. 

513.  p.  55,  474. 
Buckland    v.    Papillion,    L.    R.    2.    Ch. 

67.   2    Keener  442.   p.   880. 
Buckle   V.    :klitchell,    IS   Ves.    100.    Ill, 

]).  321. 
Buehler  v.  IMcCormick,  169  HI.  269,  48 

X.  E.  287,  p.  329. 


Hull   V.    Kentucky  Nat.  Bank,  90  Ky. 

452,   14  S.  W.  425,  12  L.  R.  A.  37. 

p.   551. 
Bullard  v.  Town  of  Sliivlcy,  153  Mass. 

559,  27   X.  E.  766,   12   ]..  R.  A.   110, 

J).   582. 
Bullitt   V.   Farrar,   42   Minn.   8,   43   X. 

W.    566,    18    Am.    St.    Rep.    485,    (> 

1..    R.    A.    149.    p.    4.V2. 
Bullivant  v.  Attorney-General,   [1901  | 

App.  Cas.   (H.  L.)    196,  p.  81. 
liullock,  In  re,  60  L.  J.  Ch.  341,  Ames 

Trusts  401,  p.  551. 
Bumgardner  v.  Leavitt,  35  W.  Va.  194. 

13  S.  E.  67,   12  L.  R.  A.   776,  H.  & 

B.   588,   p.   881,   884. 
liureh    V.    Breckinridge,     16  ,  B.    ilon. 

482,  63  Am.  Dec.  553,  p.  642. 
Burck  V.  Taylor,  152  U.  S.  634,  14  Sup. 

Ct.  696,  ]).  293. 
Burden  v.   Stein,  27  Ala.   104,  62  Am. 

Dec.  758,  p.  401. 
Burdick  v.  Jackson,  7  H\in,  488,  Kirch. 

129,  p.  739. 
Burgess   v.   Wheate,    1    W.   Black,    123, 

129,  152,  1  Eden,  177,  184,  195,  210, 

223,  256,  Ames  Trusts  356,   1    Scott 

58,  p.  58,  158,  550,  .552. 
Burgess's  Case,  L.  R.  15  Ch.  Div.  507, 

p.  450. 
Burgoyne  v.  Ohio  Life  Ins.  etc.  Co.,  5 

Oliio  St.   586,   587,  p.   191. 
Burn  V.   Carvalho,  4  :\Iylne  &  C.   690. 

702,  p.  765. 
Burnes   v.   Scott,    117   U.    S.   582,   587, 

6  Sup.  Ct.  868.  p.   133. 
Burnham   v.   Burnham,    (Wis.)    97    X^. 

W.  176,  p.  .508. 
Burns  v.  Daggett,  141  Mass.  368,  6  X. 

E.  727,  1  Ames  Eq.  Jur.  284,  p.  902. 
Burrowes    v.    Lock,    10    Ves.    470,   474, 

475.   476,    1    Scott  559,    1    Ames    Eq. 

•  lur.  263,  p.  266,  454,  455,  483,  484. 
Burwell    v.    Burwell,    (Va.)    49    S.    E. 

68,  p.  518.  522. 
Bush   V.   Lathrop,   22   X.   Y.   535.   538, 

p.  332,  338. 
Bush   V.  Lindsey,  44  Cal.   121,   125,   p. 

671. 
P.ush    V.    Western,    Prec.    Ch.    530,    1 

Ames  Eq.  Jur.  553,  p.  831. 


934 


TABLE    OF    CASKS    CITED. 


Butcher   v.     Stapely,    1     Vern.   3G3,     1 

Ames  Eq.  Jur.  27!),  2  Keener  622,  2 

Scott    188,   l^.    2(17.    !)01. 
Butcher  v.  Yocum,  (51  Pa.  8t.  168,  171, 

100  Am.  Dec.  G25,  p.  264,  267. 
Butler  V.    Bank   of   Mazeppa,   94   Wis. 

351.   68   N.   W.   998,   p.   351. 
Butler  V.  Butler's  Adm'r.  8  W.  Va.  677, 

p.  914. 
Butler  V.  Douglas,  3  Fed.  612,  p.  357. 
Butler  V.   Freeman,  Amb.  301,  303,   p. 

803. 
Butler  V.  Haskell,  4  Desaus.  Eq.  651,  2 

Scott  674,  p.  483. 
Butler  V.  Hyland,  89  Cal.  575,  26  Pac. 

1108.  p.  521. 
Button  V.  Schroyer,  5  Wis.  598,  1  Ames 

Eq.  Jur.  225,  j).  741,  753. 
Buttrick  v.   Holden.    13  :\Iet.  355,   357, 

p.  264. 
Buxton  V.   Broadway,  45  Conn.  540,  2 

Ames  Eq.  Jur.  115,  p.  861. 
Buxton  V.  Lister,  3  Atk.  383,   1   Ames 

Eq.   Jur.    47.   2    Scott   21,   2   Keener 

5,   p.    879,    883,    891. 
Buzard    v.    Houston.    119    U.    S.    347, 

351,   355.  7   Sup.   Ct.  249,  30  L.   ed. 

451,    H.    &    B.    208,    3    Keener    487, 

p.   65,    94,    143,    473.   474,   861. 
Byars   v.    Stubbs,   85   Ala.   254,   256,   4 

South.  755,   1  Ames  Eq.  Jur.  370,  p. 

468. 
Byers  v.  McAuley,  149  U.  S.  616-623, 

13  Sup.  Ct.  908-911,  p.   142. 
Byrne  v.  Schuyler  E.  M.  Co.,  65  Conn. 

336,  31  Atl.  833,  28  L.  Pv.  A.  304.  p. 

821. 

C. 

Cabot  V.   Christie.  42  Vt.   121,   126.    1 

Am.   Rep.   313,   p.   453. 
Cadigan  v.  Brown,  120  Mass.  493,  495, 

1    Keener    189,    p.    112,    834. 
Cadman  v.  Horner,  IS  Yes.  10,  1  Ames 

Eq.  Jur.  351,  2  Keener  881,  1  Scott 

284,  2   Scott  236,  p.   462,  403. 
Calder   v.    Chapman,    52    Pa.    St.    359, 

91    Am.    Dec.    163,    p.   298. 
Calderwood  v.   I'rooks,  45  Cal.  519.  p. 

873. 
Caldwell   v.   Depew,   40  Minn.   528,   42 

N.  W.  479,  2  Keener   1000,  p.  418, 

432. 


Calhoun  V.  INIillard,  121  N.  Y.  69,  77, 

24  X.  E.  27.  8  L.  B.  A.  248,  1  Scott 

.388,  p.  199,  401,  476. 
Callanan    v.   Edwards,   32   N.   Y.    483, 

486,   p.   327. 
Calverly    v.    Williams,    1    Ves.    210,    2 

Scott  259,  p.  432. 
Calvo  V.  Da  vies,  73  N.  Y.  211,  215,  29 

Am.   Rep.   130,  8  Hun,  222,   p.   711, 

712. 
Cambridge  Valley  Bank  v.  Delano,  48 

N.    Y.    326,    336,    339,    p.    269. 
Cameron   v.   Cameron,   82   Ala.   392,   3 

South.   148,  p.  673. 
Camp  V.   Bruce,   96  Va.   521,  31    S.  E. 

901,  70  Am.  St.  Rep.  873,  43  L.  R. 

A.     140,    p.    492,    496,    .500. 
Camp   V.    Ward,    69   Vt.    286,   60    Atu. 

St.  Rep.  929,  37  Atl.  747,  p.  78. 
Campbell   v.   Bainbridge,  L.   E.    6   Eq. 

269,   p. 
Campbell  v.  I'ampbell,  130  111.  466,  22 

X.  E.  020,  6     -.  R.  A.  167,  p.  506. 
Campbell  v.  Dearborn,   109  Mass.  130, 

12    Am.    Rep.    671,    Kirch.    191,    p. 

097.   701. 
(  ampbell  v.  Rust,  85  Va.  653,  8  S.  E. 

664,    p.    65. 
Campbell    v.    Seaman,    63    N.    Y.    568, 

20   Am.   Rep.   567.   1   Keener  748,  p. 

833. 
Campbell  v.  Sidwell,  61   Ohio  St.  179, 

55  N.  E.  609,  p.   195. 
Campbell   ]\Ifg.   Co.   v.   Manliattan   Ry. 

Co.,  49   Fed.   930.   1    Ames   Eq.   Jur. 

639,  p.  835. 
Canedy  v.  :Marcy.  13  Gray,  373-377,  2 

Ames    Eq.    Jur.    256.    3    Keener    35, 

2  Scott  552,  p.  419,  431. 
Cann    v.    Cann,    33    Weekly    Re]).    40. 

Ames  Trusts.  481.  p.  611. 
Cannel   v.    Buckle.   2   P.   Wms.   243,    1 

Scott  100.  p.  779,  891. 
Cannon  v.  McDaniel,  46  Tex.   303,   p. 

673. 
Caplen's  Estate.  In  re,  45   L.   J.  Rep. 

280,   Ames  Trusts,  49,   p.   563. 
Carilen   v.   Lane,   48   Ark.   210,   316,   2 

S.   W.    709.   3   Am.    St.   Rep.   228,   p. 

483. 
Carew's  Estate,  In  re,  26  Beav.   187, 

p.  492. 


TABLE   OF    CAoES    CITED. 


935 


Cargill   V.   Bower,   L.   R.    10   Ch.   Div. 

502.   514,  p.   450. 
Carhart  v.  Harshaw,  45  ^^  is.   ;U0,   30 

Am.  Rep.  752,  p.  532. 
Carlisle  v.   South  East.  R'y,   1   Macn. 

&   G.   689,   p.   821. 
Carlton  V.  Hiilett,  49  :\Iinn.  308,  51  X. 

\V.   1053,  3  Keener  709,  p.  471. 
Carlton    v.    NeNMiian.    77    jNle.    408,    1 

Atl.    194,   p.    11(1. 
Carpenter  v.   Carpenter,  25   N.   J.   Eq. 

194,  p.  531. 
Carpenter  v.   Carpenter,   12  R.  I.   544, 

34  Am.  Rep.  71(i.  p.  610,  612. 
Carpenter    v.    Longan,    16    Wall.    271, 

273,   21    L.    ed.    313,   Kirch.    675,    p. 

329,   714,   715. 
Carr  v.  Breese,  81  X.  Y.  584,  588.  590, 

591,   p.   530,   533. 
Carr   v.   Ellison,   2   Brown   Ch.    56,   p. 

684. 
Carrodlis    v.    Sharp,    20    Beav.    56.    2 

Keener  350,  2  Scott  421,  p.  163. 
Carroll  v.  Johnston,  2  Jones  Eq.   120, 

123.  p.  366. 
Carroll  v.  Lee,  3  Gill  &  J.  504.  22  Am. 

Dec.  350,  p.  639. 
Carstair  v.  Bates,  3  Camp.  301.  Ames 

Trusts,   12,  p.  569. 
Carter  v.  Carter,  3  Kay  &  J.  617,  636, 

637,   642,    1    Scott   345,   p.   347.   370, 

373. 
Carter  v.  Champion,  8  Conn.  548,  549, 

554.  21  Am.  Dec.  695,  p.  293. 
Carter   v.    City    of    Portland,    4    Oreg. 

339,   350,   p.   263. 
Carter  v.  Ferguson,  58  Hun  569,  12  X. 

Y.   Supp.  580,  p.  819. 
Carter  v.  Tice,   120   111.  277,   11   X.  E. 

529.    p.    522. 
Carter  v.    Williams.   L.   R.   9   Eq.   678, 

2  Keener  565,  p.  776. 
Carteret    v.    Petty,    2    Swans.    323,    1 

Ames  Eq.  Jur.  21,  p.  208. 
Cartwright  v.   Green,  8  Ves.  405.  408. 

p.   81. 

Carvalho    v.    Burn,    4    Barn.    &    Add. 

382,  1  Ad.  &  E.  883,  p.  765. 
Gary  v.  Lovell  Mfg.  Co.,  24  Fed.  141,  p. 

836. 
Casborne  v.   Scarfe.   1    Atk.   003.  Shep. 

213,  1  Scott  33,  p.  173,  688. 


Casco  Xational  Bank  v.  Clark,  139  X. 

V.    307.    34    X.    E.    90^,    36    Am.    St. 

Uc]).  705.  p.  305. 
Case  V.  Boughton,   11   Wend.   106,   109, 

]).  734. 
Case   V.   :Minot,   158   Mass.   577,   22   L. 

R.  A.  536,  33  X.  E.  700,  p.  99. 
Casey  v.  Typographical  Union,  45  Fed. 

135.    12    L.    R.    A.    193,    Lewis,    241. 

p.  845,  847. 
Cass  V.   Rudele,   2   Vern.   280,  2   Seott 

488,  p.  162. 
Casserleigh  v.  Wood,   119  Vvd.  3()!t.  p. 

496,  500. 
Cassey  v.  Fitton,  "  Harg.  Jurid.  Arg. 

290,    1    Ames   Eq.   Jur.    145,   i).    8SL 
Castellain  v.   Preston,   L.   R.    11    Q.    B. 

D.   380,  2  Keener  427,  p.   163. 
Castell  &   Brown,  In  re,   [1898]    1   Cli. 

315,  p.  318,  340,  350. 
Castle  V.  Wilkinson,  L.  R.  5  Ch.   534, 

1  Ames   Eq.   Jur.   252,  2   Scott   395. 

2  Keener   1208,   p.   906. 
Ca.stleman  v.  Craven,  22  Vin.  Abr.  52.S. 

1  Ames  Eq.  Jur.  466,  1  Keener  458. 
p.  827,  829. 

Castleman  v.  Templeman,  87  JNId.  546. 

67   Am.   St.   Rep.   363,   40   Atl.    375. 

41  L.  R.  A.  367,  p.  SIL 
Gates  V.  Allen,  149  U.  S.  451,  457,   l:! 

Sup.  Ct.  883,  977.  37  L.  ed.  804,   p. 

142. 
Catliu  V.  Wilcox  Silver  Plate  Co.   12;> 

Ind.   477,    IS   Am.   St.   Rep.   338,   24 

X.  E.  250,  8  L.  R.  A.  62,  p.  811. 
Caton  V.  Caton,  L.  R.  1  Ch.   137.   147. 

2  Keener  641,  p.  904. 

Caton  V.   Rideout.    1   Macn.   &   G.   59M, 

601,  603.  p.   640. 
Catt    V.    Tourle,    L.    R.    4    C!i.    654.    2 

Seott  493,  p.  491. 
Caulfield  v,  Sullivan,  85  X.  Y.   153,  ]>. 

240. 
Cave  V.  Cave,  L.  R.   15  Ch.  Div.   639. 

<;43,  646,  1  Scott  517,  Ames  Tr.  311, 

p.    .308.    339,    346. 
Cavender  v.   Ca vender,   114  U.   S.   464, 

5    Sup.    Ct.    955,    29   L.    ed.    212,    p. 

(;i4. 

Cayuta  Wheel  &  F.  Co.  v.  Kennedy, 
V.  :Mfg.  Co..  127  Fed.  355,  1  Ames 
Eq.  Jur.  638,  p.  835, 


936 


TABLE   OF    CASES   CITED. 


Central    Trust    Co.    v.     Chattanooga, 

etc.,  Co.,   94  Fed.  275,  36  C.  C.  A. 

241,  p.  807. 
Central   Trust    Co.   v.   East  Tenn.   etc. 

Co.   59  Fed.   523,  p.   809. 
Central   Trust   Co.   v.    New   York,   etc. 

R.  Co.,  110  N.  Y.  250,  18  N.  E.  92, 

1    L.   R.   A.   260,   p.   810. 
Central  Trust  Co.  v.  West  India  Imp. 

Co.,  169  K  Y.  314,  02  X.  E.  387,  p. 

346. 
Central  Trust  &  S.  D.  Co.  v.  Respass, 

112  Ky.  606,  66  S.  W.  421,  99  Am. 

St.   Rep.   317,   p.   486. 
Chaffee  V.   Lvimber  Co.,  43  Nebr.   224, 

61  N.  W.  637,  47  Am.  St.  Rep.  753, 

p.  361. 
Chaffin  V.  Kimball,  23  111.  36,  p.  534. 
Chalmers  v.   Storil,  2   Yes.   &   B.   222. 

p.  236. 
Chambers  v.  Chambers,  98  Ala.  454,  13 

South.  674,  p.  64. 
Champlin  v.  Laytin,  18  Wend.  407,  422, 

31  Am.  Dec.  382,  G  Paige,   189,  203, 

1  Edw.  Ch.  467,  p.  282. 
Channon    v.    Stewart,    103    111.    541,    3 

Keener  922,  p.  919. 
(Jhapin    v.    Brown,    83    Iowa,    156,    48 

N.   W.    1074,   32   Am.   St.   Rep.   297, 

12  L.   R.  A.  428,  p.  491. 
(  liapman  v.  Chapman,  91  Va.  397,  21 

S.   E.   813,  .50  Am.   St.  Rep.   846,  p. 

274,  279,  303. 
Chapman  v.  Gibson,  3  Brown  Ch.  229, 

p.  410. 
Cliaquette  v.   Ortet,   60   Cal.   591,   594, 

p.  671. 
Charleston  &  W.  C.  R'y  Co.  v.  Hughes, 

105  Ga.    1,   70   Am.   St.  Rep.    17,   30 

S.  E.  972,  p.  175,  176,  180. 
(barter  v.  Stevens,  3  Denio,  33,  45  Am. 

Dec.  444,  p.  735. 
Chas.   S.  Higgins  Co.  v.  Higgins  Soap 

Co.   144  N.  Y.  462,  43  Am.  St.  Rep. 

769,  39  N.  E.  490,  27  L.  R.  A.   42, 

p.  840. 

Chase  V.   Chase,  20  R.  I.  202,  37  Atl. 

804,  p.   198. 
Chase  v.  Peck,  21  N.  Y.  581,  585,  586, 

Kirch.  124,  p.  740,  745. 
Chase's  Appeal,  57   Conn.  236,  18  Atl. 

96,  p.   392,   395. 


Chateau  v.  Singla,  114  Cal.  91,  45  Pac. 

1015.  55  Am.  St.  Rep.  63,  33  L.  R. 

A.  750,  p.  496. 
Cheney  v.  Libby,  134  U.  S.  68,  19  Sup. 

Ct.  498,  33  L.  ed.  818,  H.  &  B.  695, 

p.  899. 
Cheslyn  v.  Dalby,  2  Younge  &  C.   170, 

p.   520. 
Chestatee  Pyrites  Co.  v.  Cavenders,  etc. 

Co.,  118  Ga.  255,  45  S.  E.  267,   119 

Ga.    354,    46    S.    E.    422,    100    Am. 

St.  Rep.   174,  p.  832. 
Chesterfield  v.  Janssen,  2  Ves.  Sr.  124, 

125,   157,  1   Lead.  Cas.  Eq.,  4th  Am. 

ed.,    773,    809,    825,    1    Atk.    314,    p. 

481,  524. 
Cheuvront  v.  Cheuvront,    (W.  Va.)    46 

S.  E.   233,  p.   513. 
Cliicago    &    A.    Bridge    Co.    v.    Anglo- 
American,  etc.   Co.,  46   Fed.   584,   p. 

912. 
Chicago   &    N.    W.    R.    Co.   v.    Wilcox, 

(C.   C.   A.)    116  Fed.   913,  p.  428. 
Cliicago,  B.  &  Q.  R.  R.   Co.  v.   Frary, 

22  111.  34,  p.  823. 
Chicago   Gas   Light   Co.  v.   Gas   Light 

Co.,    121    111.   530,    13   N.   E.    169,   2 

Am.  St.  Rep.  124,  p.  491. 
Chicago,    M.     &     St.     P.     R.     R.     v. 

Durant,  44  Minn.  361,  46  N.  W.  676, 

H.    &.    B.    701,    2    Keener    1211,    p. 

905,    906. 
Chicago,  R.  I.  &  P.  R.  R.  Co.  v.  Union 

Pac.  Ry.  Co.,  47  Fed.  15,  p.  890. 
(hick  V.  Willetts,  2  Kan.  384,  391,  H. 

&   B.  555,  p.  693,  694. 
Child  V.  Douglas,  5  De  Gex,  M.  &  G. 

739,  2  Keener  467,  p.  776,  777. 
Cliild  V.  Mann,  L.  R.  3  Eq.  806,  2  Ames 

Eq.  Jur.  35,  1  Keener  246,  p.  798. 
China   Steamship   Co.,  In   re,   L.   R.    7 

Eq.  240,  p.  330. 
Chinnock  v.  Marchioness  of  Ely.  4  De 

Gex,   J.   &   S.   638,   643,   p.   773. 
Chinnock  v.  Paterson,  etc.  Co.,  112  Fed. 

531,  p.  837. 
Chipman  v.  Montgomery,  63  X.  Y.  221, 

230,    p.    675. 
Chippendale,  Ex  parte,  4  De  Gex,  M. 

&  G.  19,  52,  p.  626,  628. 
Cholmondeley   v.   Clinton,   2  Mer.   352, 

p.  858. 


TABLE    OF    CASKS    CITED. 


937 


Christian   v.   Taylor,    11    Sim.   401,    j). 

82. 
Cliristman  v.  Colbert,  33  Minn.  50'.>.  24 

X.  \V.  301.  3  Keener  428,  p.  800. 
Ciuirch   V.    Bull,   2    Den.    430,   43   Am. 

Dec.  754,  .i  Hill,  270,  p.  235. 
Cincinnati  H.  &  D.  R.  R.  Co.  v.  Bank, 

54  Ohio  8t.  60,  42  N.  E.  700,  56  Am. 

St.   Rep.    700,   31    L.    R.   A.   653,    p. 

7tR). 
Citizens'  Bank  v.  Sluiw,  14  S.  Dak.  I!l7. 

84  X.  \V.  779,  p.  363. 
Citizens'  Nat.  Bank  of  Attica  v.  Judy, 

146  Ind.  322,  43  X.  E.  250,  3  Keener 

433,  p.  198,  426,  437,  859. 
Citizens'  X^at.   Bank  of  Middletown  v. 

Trustees,  5  Del.  Cli.  59G,  p. 
Citizens'    State    Bank    v.    Julian,    153 

Ind.  655.  55  X^  E.  1007,  p.  350. 
City   Council    of    Charleston   v.    Ryan, 

22    S.   C.    339,   53   Am.    Rep.    713,    p. 

349. 
City   National   Bank   v.    Kusworm,    88 

Wis.   188,  26  L.  R.  A.  48,  59  N.  W. 

564,  43  Am.  St.  Rep.  880,  3  Keener 

795,  p.  509. 
City    of    Albert    Lea    v.    Nielson,    83 

Minn.  246,  80  N.  W.  83,  p.  118. 
City   of   Austin   v.    Austin    City    Cem. 

A.ss'n,  87  Tex.  330,  47  Am.  St.  Rep. 

114,  28  S.  W.  528,  p.   823. 
City  of  Bloomington  v.  Smith,  123  Ind. 

41,   23   N.   E.   972.    18   Am.   St.   Rep. 

310,  p.  408. 
City  of  Chicago  v.  Collins,  175  111.  445, 

51    X.  E.  907,  67  Am.  St.  Rep.  224, 

49   L.   R.   A.   408,   2   Ames   Eq.   Jur. 

92,  p.   116,   117,  823. 

City  of  Chicago  v.  Union  Stock  Yards 

&  Transit  Co.,  164  111.  224,  45  N.  E. 

430.  35  L.  R.  A.  281,  p.  178,  184. 
City   of   London  v.   Nash,   3   Atk.   512, 

515.  p.   887. 
City   of   London   v.   Perkins.   3   Brown 

Pari.    Cas.,    Tomlins's    ed.,    602,    4 

Brown  Pari  Cas.  157,  p.  111. 
City  of  Newton  v.  Levis,  79  Fed.  715, 

25  C.  C.  A.  501,  49  U.  S.  App.  2()6, 

p.  814. 

City  of  New  York  v.  Pine,  185  U.  S. 

93,  22   Sup.  Ct.  592,  46  L.  ed.  820. 
p.  825. 


(lallin    V.    Claflin,    149    Mass.     19,     14 

Am.   St.   Rep.  393,  20  N.   E.   454.   3 

L.  R.  A.  370,  Ames    Trusts,  455,  p. 

553. 
Clapham  v.  Shillito,  7  Beav.  140,  149, 

150,  p.  396,  457. 
Clark  V.  Brown,  3  Allen,  509,  p.   340. 
Clark  V.   Clark,   108   Mass.   522,  Ames 

Trusts,   232,   p.   559. 
Clark  V.  Clark,  50  N.  H.  105,  p.  384. 
Clark  V.   Clark,  8  Paige,   152,  35  Am. 

Dec.    676.    p.    622. 
Clark   V.   Davenport,   95   X".   Y.   477,   1 

Keener  344,  p.  876. 
Clark  V.   Flint,  22   Pick.  231,   33   Am. 

Dec.   733,  p.  361. 
Clark    V.    Fosdick,    118    N.    Y.    14,    22 

X.    E.    nil,    16   Am.   St.   Rep.    733, 

6  L.  R.  A.  132,  p.  487. 
Clark  V.  Glos,   180  111.   55(i,   54   X.   E. 

631,    72   Am.    St.    Rep.   223,   ]).    382, 

383. 
Clark  V.  Jetton,  5  Sneed,  229,  H.  &  B. 

155,  p.  247,  248. 
Clark  V.   McX^eal,    114   N.   Y.   295.   21 

X.  E.  405,  11   Am.  St.  Rep.   638,  p. 

364. 
Clark  V.  Muni'oe,  14  Mass.  351,  p.  344. 
Clark   V.   Smith,    13   Pet.    195,   203,   p. 

141. 
Clark  V.  Wooster,  119  U.  S.  322,  7  Sup. 

Ct.   217,   30   L.   ed.  392,   p.   837. 
Clarke  v.  Clarke,  46  S.  C.  230,  24  S.  E. 

202,  57  Am.  St.  Rep.  675,  p.   171. 
Clarke  v.   Franklin,   4   Kay   &   J.   257, 

1  Scott   628,   3   Keener   982,   p.   680, 
683. 

Clarke  v.  Hart,  5  Jur.,  N.  S.,  447.  p. 

402. 
Clarke  v.  Parker,  19  Ves.  1,  13,  15,  16, 

IS,  22,  p.  489, 
Clarke  v.  Perry,  5  Cal.  58,  60,  63  Am. 

Dec.  82,  p.  672. 
Clarke    V.    Price,    2    Wils.    Ch.    157.    2 

Scott    89,    2    Keener    199,    H.    &    B. 

012.  p.  819. 
Clarke  v.  Ramuz,   [1891]  2  Q.  B.  456, 

1    Ames   Kq.  Jur.  222,  2  Keener  38(». 

2  Scott  424,  p.  163, 

Clarke  v.  Rochester  etc.  R.  R..  18  Barb. 
3.-)n,  1  Ames  Eq.  Jur.  410,  2  Scott 
294,  p.   894. 


938 


TABLE    OF    CASES   CITED. 


Clay  V.  Fry,  3  Bibb,  248,  6  Am.  Dec. 

054,  p.   132. 
Clay  V.  Gurley,  62  Ala.  14,  p.  676. 
Clayton  v.  Akin,  38   Ga.   320,   95  Am. 

Dec.   393,  p.  236. 
Clayton  v.  Ashdown,  9  Vin.  Abr.  393, 

pi.  2,  1  Ames  Eq.  Jur.  421,  2  Scott 

133,  p.  893, 
Clayton  v.   Johnson,   36  Ark.   406,   38 

Am.  Eep.  40,  p.  556. 
Cleghorn  v.  Minnesota  T,  I.  &  T.  Co., 

57  Minn.  341,  47  Am.  St.  Rep.  615, 

59  N.  W.  320,  p.  735. 
(leghorn  V.   Zumwalt,  83   Cal.   155,  23 

Pac.    294,   2   Ames   Eq.    Jur.    197.   3 

Keener  322,  p.  438,  859. 
Clement  v.  Hyde,  50  Vt.   716,  28  Am. 

Rep.  522,  p.  577,  580. 
Clements   v.   Tillman,   79   Ga.   451,    11 

Am.  St.  Rep.  441,  5  S.  E.  194,  Shep. 

194,  p.  207. 
Clerk   V.    Wright,    1    Atk.    12,    1    Ames 

Eq.  Jur.  294,  p.   901. 
Cleveland  v.  Springfield  Inst,  for  Sav., 

182  Mass.   110,  05  N.  E.  27,  p.  568. 
Clift  V.  Moses,  110  N.  Y.  144,  22  X.  E. 

393,  p.  743. 
(  linan  v.   Cooke.   1    Schoales   &  L.   22, 

41,  2  Scott  182,  2  Keener  028,  p.  901, 

902. 
Clinton  E.   Worden  &   Co.  v.   Cal.   Fig 

Syrup   Co.,    187   U.   S.   516,  23    Sup. 

Ct.   121,  47  L.  ed.  282,  p.   494,  840. 
Cloud  V.  Clinkinbeard,  8  B.  ]Mon.  397, 

48  Am.  Dec.  397,  p.  242. 
Clowes  V.  Dickenson.  5  Johns.  Ch.  235, 

p.   725,  720. 
Clowes  V.  Staffordsliire  etc.  Co.,  L.  R. 

8  Ch.  1,25,  p.  830.  832. 
Coaks   V.    Boswell,    11    App.    Cas.    (H. 

L.)    232,  3  Keener  590,  p.  405. 
Coates  V.  Wilkes,  92  X.  C.  370,  p.  800. 
Cochran  v.   Coeliran,  02  Xebr.  450,  87 

X.  W.   152,  p.  910. 
( 'ocks  V.   ^Manners,  L.   R.   12   Eq.   574, 

p.   576,   580. 
Codman  v.  Tinkham,  15  Pick.  344.  p. 

869. 
Codrington  v.  Lindsay,  L.  R.  8  Ch.  578, 

p.  231. 
Coffin  V.  Coffin,  Jac.  70,  1  Keener  468, 

p.  828. 


Cogent    V.    Gibson,    33    Beav.    557,    * 

Ames   Eq.    Jur.   56,   2    Scott    147,   2 

Keener  80,  p.  881,  882,  883. 
Coger's   Ex'rs   v.   McGee,   2   Bibb,   321. 

5  Am.  Dec.  610,  p.  427. 
Coit    V.    Comstock,    51    Conn.    352,    50 

Am.  St.  Rep.  29,  p.  580. 
Cole   V.    Fickett,   95   Me.   265,   49   AtL 

1066,  2  Ames  Eq.  Jur.   178,  p.   859. 
Cole  V.  Mette,  65  Ark.  503,  47   S.  W„ 

407,  67  Am.  St.  Rep.  945,  p.  353. 
Cole  V.  White,  1  Bro.  C.  C.  409,  1  Ame» 

Eq.  .Jur.  282.  p.  902. 
Coleman,  In  re,  39   Ch.  D.  443,  Ames 

Trusts  339,  p.  551. 
Coleman  v.  Dunton,  (Me.)  58  Atl    430, 

p.  373. 
Coles  V.  Sims,  5  De  Gex,  M.  k  G.   \ 

Kay,   50,   70,   p.   401. 
Coles   V.   Trecothick,    9   Ves.   234,   246, 

2  Keener  768,  p.  483,  516. 
Coles    V.    Withers,    33    Gratt.    186,    p. 

751. 
Cole's  Com,  v.  Cole's  Adm'r,  28  Gratt. 

305,  p.  634, 
Cole's   Estate,   In   re,    102   Wis.    1,    72 

Am.  St.  Rep.  854.  78  X.  W.  402,  p. 

553,  60S. 
Colgate  V.  Compagnie  Francaise  du  Tel- 

egraphe,  23   Fed.  82,  p.   79. 
Collard  v.  Marshall,  [1892]   1  Ch.  571, 

Lewis  392,  p.  845. 
Collier  v.  Davis,  47  Ark.  367,  58  Am. 

Rep.  758,  p.  556. 
Collins  V.  Archer,   1   Russ.   &   M.   284, 

p.   371. 
Collins  V.  Campbell,  97  Me.  23,  2S.  53 

Atl.  837,  94  Am.  St.  Rep.  458,  403, 

p.  3.30. 
Collins  V.  Castle,  L.  R.  36  Ch.  D.  243. 

2   Keener  523,  p.   776,  778. 
Collins  V.   Champ's  Heirs,   15  B.  ^Mon. 

118.  01   Am.  Dec.   179,  p.   682. 
Collins's  Appeal,   107   Pa.    St.   5!)0.   52 

Am.  Rep.  479,  p.  771. 
Collister  v.  Fassitt,  163  X.  Y.  2,S1.  57 

X.  E,  490,   79  Am.   St.  Rep.  580,  p. 

008. 
Colman  v.   Sarrel.  3   Bro\\Ti  Ch.   12.   1 

Ves.  50,  Ames  Trusts   133,  p.  559. 
Colton  V.   Colton,   127  U.   S.   300,   317, 

319,   320,   8    Sup.   Ct.   Rep.    1x64,   p. 

571,  572. 


TABLE   OF   CASES    CITED. 


939 


Colton  V.  Drover's  Ass'n,  90  .Mil.  S5,  78 

Am.  St.  Rep.  431,  45  Atl.  23,  46  L.  R. 

A.  388,  H.  &  B.  899,  p.  809. 
Colton   V.    Stanford,    82   Cal.   30  1,    3oO, 

389,    10   Am.   St.   Rep.    137,    150,   23 

Pac.   10,  p.  515,  523. 
Columbia  Ave.   Sav.   Fund  etc.   Co.  v. 

City  of  Dawson,  130  Fed.   152,   170, 

p.  44. 
Columbia    Bank    v.    Jacobs,    10    Mich. 

349,   81    Am.   Dec.   792,   p.   342. 
Colyer    v.    Finch,    19    Beav.    500,    5    11. 

L.  Cas.  905,  921,  p.  357. 
Combs  V.   Fisher,  3   Bibb    (Ky.)    31,  2 

Scott  453,  p.  163. 
Combs  V.  Scott,  76  Wis.  662,  45  N.  w. 

532,    H.    &    B.    682,    2    Scott   357.   2 

Keener  1194,  p.   100.  899. 
Commercial    ^Mutual    Ins.    Co.    v.    ]\lc- 

Loon,   14  Allen,  351,  3  Keener  472, 

p.    474,    861. 
Commercial  Xat.   Bank  v.   Burch,   141 

111.   519,   31   X.   E.   420,  33  Am.   St. 

Rep.  .331,  p.  332. 
Commercial  Xat.  Bk.  v.  Hamilton  Nat. 

Bk.   42    Fed.    880,   Ames   Trusts    15, 

p.   569. 
Commonwealth  v.   Stauffer,   10  Pa.   St. 

3.50,   51   Am.   Dec.   489,   p.   489. 
CommonAvealth  v.  Susquehanna  etc.  R. 

R.  Co.  122  Pa.  St.  306,  15  Atl.  448, 

1  L.  R.  A.  225,  p.  558. 
Comstock  V.  Hitt,   37   111.   542,   546,    1 

Ames  Eq.  Jur.   139,  2  Scott  482,  p. 

711. 
Comstock  V.  Johnson,  46  X.  Y.  015,  H. 

&  B.  26,  Shep.   108,  p.   178. 
Condit  V.   Bigalow,   64   X.   J.  Eq.   504. 

54  Atl.  160.  p.  .565. 
Conger  v.  X.  Y.  W.  S.  &  B.  R.  R.  Co., 

120  X.  Y.  29,  23  X.  E.  983,  1  Ames 

Eq.   Jur.  412,  H.  &  B.   723,  2   Scott 

.304,  2  Keener  1046.  p.  889,  895. 
Connecticut     Mut.     Life     Ins.    Co.     v. 

Smith,  117  Mo.  261,  .38  Am.  St.  Rep. 

656,  22  S.  W.  623.  p.  265. 
Connecticut  ]\Iut.  Life  Ins.  Co.  v.  Wes- 

terhoff,  .58  Xebr.  379,  78  X.  W.  724, 

70  Am.  St.  Rep.  10],  p.  218. 
Connecticut     River     Banking     Co.     v. 

Rockbridge  Co.   73   Fed.   709,  p.   808. 
Connolly  v.  Branstler,  3  Bush,  702.  96 

Am.  Dec.  278,  1  Scott  583,  p.  399. 


Connolly  v.  Dolan,  22  R.  I.  60,  84  Am. 

St.   Rep.   816,   46   Atl.   36,   p.   915. 
Connor  v.  Stanley,  72  Cal.  556,  1  Am. 

St.   Rep.   84,   14  Pac.   306,  p.   522. 
Conover  v.   Van   Mater,    18   N.   J.   Eq. 

481,   p.   351. 
Consolidated   etc.    Co.    v.    Consolidated 

etc.  Co.,  43  Fed.  204,  p.  806. 
Const   v.    Harris,   Turn.    &   R.   496,   p. 

804. 
Constant   V.    University    of    Rochester, 

111  X.  Y.  604,  19  X.  K.  631,  7  Am. 

St.    Rep.    769,   2    L.    R.    A.    734,    p. 

306,   307. 
Continental  Bank  v.  Bank  of  the  Com- 
monwealth, 50  X.  Y.  575,  581,  582, 

p.  392,  398. 
Continental  Xat.  Bank  v.  Hcilman,  66 

Fed.   184,  p.  75. 
Continental    Trust    Co.    v.    Toledo,    etc. 

R.  Co.  59  Fed.  514,  p.  810. 
Conway's  E.x'rs  v.  Alexander,  7  Cranch, 

218,  3  L.  ed.  321,  Kirch.  151,  p.  699, 

700. 
Conybeare's    Settlement,    Ex    parte.    I 

Wkly.   Rep.   458,   Ames  Trusts,   222, 

p.  625. 
Cook  v.  Addison,  L.  R.  7  Eq.  466,  470, 

p.  618. 
Cook  V.  Fountain,  3  Swanst.  585,  591, 

592,  600,  p.  29. 

Cook  V.  Gilmore,  133  111.  139,  24  N.  E. 

524,  H.  &  B.  542,  p.  623. 
Cooke    v.    Clay  worth,    18    Ves.    12,    p. 

508. 

Cooke  V.  Crawford,  13  Sim.  91,  Ames 
Trusts,  509,  p.  611. 

Cooke  V.  Forbes,  L.  R.  5  Eq.  166,  I 
Keener  729,  p.   830. 

Cookes  V.  Mascall,  2  Vern.  200,  2  Keen- 
er. 748,  p.  479.  905. 

Cooley  V.  Coolej^  172  Mass.  476,  52 
X.  E.  631,  p.  591. 

Coblidge  v.  Schering,  32  Wash.  557,  73 
Pac.    682,   p.   402. 

Coons   V.   Coons,   95   Va.   434,   64   Am. 

St.  Hep.  804,  28  S.  E.  885,  p.  98. 
Cooper  V.  Cooper,  L.  R.  6  Ch.  15,  16, 

20,  p.  231. 

(^ooper  V.  Cooper,  56  X.  J.  Eq.  48,  38 
Atl.  198,  p.  236. 


940 


TABLE    OF    CASES    CITED. 


Cooper  V.   Plii'oI)s.  L.  R.  2  H.  L.   149, 

170.  2  Ames  Eq.  Jur.  2GG,  2  Scott 

559,  3  Keener  43,  Shep.  148,  p.  417, 

424. 
Cooper's    Estate,    In    re,    206    Pa.    St. 

628,   98   Am.    St.   Rep.   799,   56   Atl. 

67,  p.  679. 
Coosaw  ]\Iin.  Co.  v.  South  Carolina,  144 

U.  S.  550,  12  Sup.  Ct.  689,  36  L.  ed. 

537,  1  Scott  729,  p.  830. 
Cope   v.    District    Fair    Ass'n,    99    1.1. 

489,  39  Am.  Rep.  30,  1  Ames  Eq.  Jur. 

29,  p.  826. 
Copis  V.  Middletou,  2  Madd.  409,  410. 

428.  430.  2  Scott  738,  p.  528. 
C'oquillard's  Ad'mr  v.   Bearss,  21   Ind. 

479,  83  Am.  Dec.  362.  p.  761. 
Corhas  v.  Teed,  (i9  111.  205,  2  Scott  481, 

p.   898. 
Corhin  v.  Tracy.  34  Conn.  325,  H.  &:  B. 

709,  2  Scott  46,  2  Keener  34,  p.  883. 
Corbus   V.    Alaska   Treadwell   Gold   M. 

Co.,  187  U.  S.  455,  23  Sup.  Ct.  156, 

p.  633. 
Corby  v.  Bean.  44  Mo.  379,  p.  179. 
Cordova  v.  Hood,  17  WaW.  1,  21  L.  ed. 

587,   p.   269. 
Corley  v.   Lord   Stafford,   1   De  Gex  & 

J.  238,  p.  523. 
Corliss  V.  E.  W.  Walker  Co..  57    Fed. 

434.  64  Fed.  280.  Lewis  337,  p.  846. 
Cornell  v.  ^^■oodruff,  77  X.  Y.  203,  206. 

p.  710. 
Coniiiifi  V.  Lowerre,  6  Johns.  Ch.  439. 

1  Scott  734,  p.  830. 
Corning;  V.  Troy  Iron  &  Xail  Factory, 

40  X.  Y.  191,  1  Keener  814,  p.  833. 
Cornisli  v.  Abington,  4  Hurl.  &  X.  549. 

p.    397. 
Cort  V.  Lassard,  18  Oreg.  221.  17  Am. 

St.  Rep.  720,  22  Pac.   1054,  0  L.  R. 

A.   653.   ]).   819. 
Cory  V.  Eyre.   1   Do  Gex,  J.  &  S.   149. 

163.    167.    KiS.    169,  L.  R.  4  Ch.   143. 

146,  p.  315,  316. 
Cotheal   v.   Talmage,   9  N,   Y.   551,   61 

Am.  Dec.  716,  p.  221. 
Cotterell  v.  Purchase.  Cas.  t.  Talb.  61. 

Kirch.  175,  p.  701. 
Coulson  V.  Allison,  2  De  Gex,  F.  &  J. 

521,  p.  523. 
Coulson  V.   White,  3   Atk.   21,   1   Scott 

679,  p.  841. 


Counter  v.  :\racpherf;on.  5  Moo.  P.  C.  C 

83,  2  Keener  412.  j).  163. 
Countess    of    Strathmore    v.    Bowes,    2 

Brown  Ch.   345,   1   Yes.   22.   1   Lead. 

Cas.   Eq.    605,   611-617,   618-623,   p. 

645. 
Count  Ranelaugh  v.  Hayes,  1  Vera.  189, 

1  Ames  Eq.  Jur.  64.  p.  884. 
County  of  Schuylkill  v.  Copley,  67  Pa. 

St.  386.  5  Am.  Rep.   441,  p.  477. 
Courthope  v.  Mapplesden,  10  Ves.  290, 

1  Scott  684,  1  Ames  Eq.  Jur.  490,  1 

Keener  548,  p.  842. 
Cousins  V.  Smith,  13  Ves.  542.  p.  80. 
Coventry  v.  Barclay,  3  De  Gex,  J.  &  S. 

320,  328,  p.  157. 
Cowee  V.  Cornell.  75  X.  Y.  91,  99,  100, 

31    Am.    Rep.   428.   H.   &   B.   316,   p. 

504.  50(;.  .i07. 
Coweii  V.  Adams,  78  Fed.  536,  543,  552, 

47    U.    S.   App.   676,    (C.   C.   A.)    p. 

51.3. 
Cowin    V.    Hurst.    124    IMich.    545.    83 

Am.  St.  Rep.  344,  83  X.  W.  274,  p. 

602. 
Cowles   V.    Pollard.   51    Ala.   445,   447. 

p.  97. 
( 'owper  V.  Cowper.  2.  P.  Wms.  720,  753. 

Sliep.  84,  1  Scott  296,  p.  205. 
Cowtan    V.    Williams.    9    Ves.    107.    2 

Ames  Eq.   Jur.   8.   1    Keener  213.   p. 

797,  799. 
Coyle  V.  Davis,  116  U.  S.   109.  6  Sup. 

Ct.  314.  29  L.  ed.  583,  Kirch.   156. 

p.  699. 
Cradock  v.  Piper,  1  Macn.  &  G.  664, 

p.  622. 
Cragg  V.  Holme,  18  Ves.   14,  n.   12,  1 

Ames.  Eq.  Jur.  417,  p.  894. 
Craig  V.  Hukill,  37  W.  Va.  520,  16  S. 

E.  363.  H.  &  B.  60,  p.  227. 
Craig  V.  Leslie,  3  Wheat.  563,  577.  582. 

4  L.  ed.  460,  H.  &  B.  39,  Sh.   66.   1 

Scott  611,  p.  167,  554,  681. 
Cramer  v.  Lepper,  26  Ohio  St.  59,  20 

Am.   Rep.   756,  p.   712. 
Cramer  v.  Reford.  17  X.  J.  Eq.  367,  90 

Am.  Dec.  594,  p.  532. 
Crampton  v.  Zabriskie,  101  U.  S.  601, 

25  L.  ed.  1070.  p.  822. 
Crane  v.  Conklin,  1  X.  J.  Eq.  346,  22 

Am.  Dec.  519,  p.  508. 


TABLE   OF   CASES   CITED. 


941 


Crane  v.  McDonald,  118  N.  V.  048.  23 

:N.  E.  !)'J1,  1  Keener  262,  p.  7!M).  7!ll, 

7i)4.  7!)7,  798. 
Cranford  v.  Tyrrell.  128  X.  Y.  341.  28 

X.  E.  514,  1  Keener  788,  p.  830. 
Crass  V.  Memphis  &  G.  R.  Co.,  90  Ala. 

447,  11  South.  480,  1  Keener  311,  p. 

1.32,  795,  798,  799. 
Crawford   v.   Chicago  etc.   R.   Co.,    112 

111.  314,  p.  282. 
Crawford  v.  Crawford,  24  Xev.  410,  56 

Pac.   94,   p.    513. 
Crawford  v.   Fisher,   1   Hare,  430,  440, 

441.   p.   790. 
Crawford  v.  Kirksey,  55  Ala.  282,  28 

Am.  Rep.  704,  p.  531. 
Crawford  v.  Tyrrel,  128  N.  Y.  341,  28 

X.  E.  514,  1  Keener  788.  p.  S20. 
Crawsliay  v.  Thornton.  2  Mylne  &  C.  1, 

19-24,  2  Ames  Eq.  Jur.  18,  1  Keener 

220,  p.  790,  793.  794,  795,  796,  797. 
Creely    v.    Bay    State    Brick    Co.,    103 

Mass.  514,  p.  .52,  53. 
Crenshaw   v.    Carpenter,   69   Ala.    572, 

44  Am.  Rep.  539,  p.  236. 
Cri-hton  v.  Dahmer,  70  Miss.  002,   13 

Soutli.  237,  21  L.  R.  A.  84,  Shep.  15, 

p.  851. 
^rippen  v.   Chappel,   35   Kan.   495,    11 

Pac.  453,  57  Am.  Rep.  187,  p.  717. 
Crockett  v.  Doriot,  85  Va.  240,  3  S.  E. 

128,  p.  651. 
Crockford   v.   Alexander,    15   Ves.    138, 

1  Ames  Eq.  -Jnr.  221,  1  Keener  .549,  1 

Scott  685,  p.  829,  842. 
Croft   V.    Goldsmid,    24    Beav.    312,    p. 

224,  226. 
Croft  V.   Graham,  2   De  Gex,   ,T.   &    S. 

155.  p.  511. 
Cronin  v.  Bloemicke,  58  X.  J.  Eq.  313, 

43  All.  605,  1  Ames  Eq.  .Jur.  560,  p. 

831. 

Crook  V.  Corporation  of  Seaford,  L.  R. 

0  Ch.  551,  L.  R.  10  Eq.  678,  p.  401. 
Crookston    Imp.    Co.    v.    Marshall,    57 

Minn.  333,  47  Am.  St.  Rep.  612,  59 

X.  W.  294,  p.  427. 
Crosby  v.  Taylor.  15  Gray,  04,  77  Am. 

Dec.  3.32,  p.  382. 
Cross  V.  United  States  Trust  Co..   131 

X.   Y.  330.  27   Am.  St.   Rep.  597,  30 

X.  E.  135,  15  L.  R.  A.  006,  p.  549. 


Croton  Turnpike  Co.  v.  Ryder,  "L  .Tohns. 

Ch.  Oil,  1  Ames  Eq.  Jur.  611,  1  Scott 

168,  p.  841. 
Crowder  v.    Tinkler,   19    Ves.    017,    1 

Ames  Eq.  .Jur.  555,  p.  831. 
Crowe   V.    Ballard,   3    Brown    CIi.    117, 

119.  120.  2  Cox,  253,  2  Scott  7.59,  p. 

512,   524. 
Crowe  V.  Leevin,  95  X.  Y.  423,  3  Keener 

283,  p.  437. 
Crowe  V.  \Yilson.  05  Md.  479,  57  Am. 

Rep.  343,  5  Atl.  427,  p.  827. 
Crowell  V.  Young,    (Ind.  T.)    04  S.  W. 

007,   p.   99. 
Cruwys  v.   Coleman,   !)   Ves.   319,   322, 

323,  p.  568. 
Cud  V.  Rutter,  1   P.  Wms.  570,  571,  2 

Scott  44,  2  Keener  1,  p.  880,  884. 
Cumberland   Coal   Co.   v.   Sherman,  20 

Md.  117,  p.  524. 
Cunnack    v.    Edwards,     [1890]    2    Ch. 

679,   [1895]    1   Ch.  489,  p.  575. 
Curdy  v.  Berton,  79  Cal.  420,   12  Am. 

St.  Rep.   157,  21  Pac.  858,  H.  &  B. 

.501,  p.   603. 
Curran  v.  Holyoke  W.  Co.,  110  :\Iass. 

90,  p.  895. 
Curran  v.  Houston,  201  111.  442.  00  X. 

E.  228,  p.  218. 
Curre  v.  Bowj'er,  5   Beav.  6,   1   Ames 

Eq.  .Jur.   196,  p.   164. 
Curtice  V.  Crawford  County  Bank,  118 

Fed.  390,  p.  305. 
Curtis  V.  Curtis,  2  Brown  Cli.  020.  031, 

032,  p.  864,  865. 
Curtis  V.  Moore,  152  X".  Y.   159,  40  N. 

E.  108,  57  Am.  St.  Rep.  500.  ]>.  383, 

715. 
Curtis  V.  Sutter,  15  Cal.  259.  203,  264, 

p.  873. 

Gushing  v.   Blake,  30  X.  ,J.   Eq.   689, 

p.  564. 
Gushing    v.    Drew,    97    Mass.    445,    p. 

219. 
Gushing  v,  Perot,   175  Pa.   St.   66,  52 

Am.    St.   Rep.   835,   34  Atl.    447,   34 

L.  R.  A.  737,  p.  811. 
CusJiman  v.  Thayer  :Mfg.  Co.,  76  X.  Y. 

365,   371,   32   Am.    Rep.    315,   p.   67, 

907. 
Cutler  V.  Anunon,  65  Towa,  281,  21  N. 

W.  004,  p.  749. 


942 


TABLE   OF    CASES    CITED, 


Cutter  V.  Butler,  2r>  N.  H.  343,  57  Am. 

Dee.  330,  p.  642. 
Cutting  V.  Dana,  25  N.  J.  Eq.   2G5,  2 

Keener  267,  p.  883. 
Cutting  V.  Gilbert,  5  Blatch.  259,  261- 

263,  p.  123. 


D. 


Daggett  V.  Aver,  65  N.  H.  82,  18  Atl. 

169,  2  Ames  Eq.  Jur.  232,  3  Keener 

181,  p.  859. 
Daggett  V.   Rankin.   31    Cal.   321,   326, 

p.   158,   167,  739. 
Daire  v.  Beversham,  Nelson  76,  1  Ch. 

Ca.  39.  1  Ames  Eq.  Jur.  192,  p.  162. 
3)ale  V.  Robinson,  51   Vt.  20,  31   Am. 

Rep.  669,  p.  642. 
Dalston  v.  Coatsworth,  1  P.  Wms.  731, 

1  Scott  407,  p.  409. 

Daly  V.   Palmer.   6   Blatclif.   256,   Fed. 

Cas.  No.  3,  552,  p.  838. 
Daly  V.  Smith,  38  N.  Y.  Super.  Ct.  158, 

2  Keener  267,  p.  819. 
Dambmann  v.  Schulting,  75  N.  Y.  55, 

61,  63.  3  Keener  202,  H.  &  B.   227, 

p.  428,  464,  859. 
Damm   v.    Damm,    109    Mich.    619,    67 

N.  W.  984,  63  Am.  St.  Rep.  601,  p. 

724. 
Dance  v.  C4oldingham,  L.  R.  8  Ch.  902, 

p.   810. 
Daniel  v.  Hester,  29  S.  C.  147,  7  S.  E. 

65,  p.  275. 
Daniel  v.  Hill,  52  Ala.  430,  p.  521. 
Daniels  v.  Davison,  16  Ves.  249,  17  Ves. 

433,  2  Scott  472,  p.  276,  319. 
Daniels .  v.    Keokuk    Waterworks,    61 

Iowa  549,  16  N.  W.  705,  1  Ames  Eq. 

Jur.  585,  p.  832. 
Danser  v.  Warwick,  33  N.  J.  Eq.  133. 

Ames  Trusts  186,  p.  567. 
Darbey  v.  Whitaker,  4  Drew.  134,  139. 

140,  2  Keener  129,  p.  886. 
D'Arcy  v.  Blake,  2  Schoales  &  L.  387, 

Ames  Trusts  376,  p.  552. 
Dargin   v.    Hewlitt,    115   Ala.    510,   22 

South.  128,  p.  65. 
Darling,   In   re,    [1896]    1    Ch.   50,    p. 

576. 
Darragh  v.  H.  Wetter  INIfg.  Co..  78  Fed. 
7,  23   C.   C.   A,   609,  p.   142. 


Darrow  v.  Summerhill,  93  Tex.  92,  77 

Am.   St.  Rep.  833,  53   S.  W.  680,  p. 

915. 
Darst   V.    Phillips,   41    Ohio    St.    514, 

Shep.    24. 
Daubenspeck  v.  Piatt,  22  Cal.  330,  335, 

p.  720. 
Davenport  v.   Davenport,   7   Hare  217, 

1  Ames  Eq.  Jur.  496,  1  Keener  574, 
)).    842. 

Davenport  v.  Magoon,  13  Oreg.   1,  57 

Am.  Rep.   1,  p.  827. 
Davies  v.  Fowler,  L.  E.  16  Eq.  308,  p. 

658. 
Davies  v.   Jenkins,  L.   R.   6  Ch.   Div. 

728.  p.  651. 
Davies  v.  Sear,  L.  R.  7  Eq.  427,  432, 

433,  p.  273. 
Davies  v.  Topp,  1  Brown  Ch.  524,  526. 

527,  p.  662. 
Davis,  In  re,  112  Fed.  129,  p.  587. 
Davis  v.  Am.  Soe.  etc.,  75  N.  Y.  362,  2 

Ames  Eq.  Jur.  104,  1  Keener  108,  p. 

851. 
Davis  V.   Bechstein,   69  N.  Y.   440,  25 

Am.  Rep.  218,  p.  332. 
Davis  V.   Earl  of  Strathmore,   16  Ves. 

419,  428.  p.  289,  367. 
Davis  V.  Ely,   104  N.   C.   16,   10  S.  E. 

138.  17  Am.  St.  Rep.  667,  5  L.  R.  A. 

810.  H.  &  B.  262.  p.  436. 
Davis  V.   Foreman,    [1894]    3   Ch.   654, 

2  Keener,  p.  819. 

Davis  V.  Gray,  16  Wall.  203,  H.  &  B. 

804,  Shep.  325,  p.  809. 
Davis  v.  Rock  Creek  etc.  Co..  55  Cal. 

359.  36  Am.  Rep.  40,  p.  601,  617. 
Davis  v.   Strathmore,   16  Ves.  419,  p. 

289,   367. 
Davis  V.  Turvey,  32  Beav.  554,  p.  86!). 
Davis  v.   Ward,  109  Cal.   186,  41   Pac. 

1010,   50    Am.    vSt.   Rep.   29,   p.   295. 

362,   363. 
Davis   V.    Wetherell.    13    Allen    60,    90 

Am.  Dec.  177,  p.  386,  721. 
Davis  V.  Whitaker,  114  N.  C.  279.  19 

S.  E.  699,  41  Am.  St.  Rep.  793.  p. 

294. 
Davis  V.  Williams,  130  Ala.  530.  537, 

538.  89  Am.   St.  Rep.  55.  60.  61.  .10 

Soutli.  488,  54  L.  R.  A.  749,  p.  204. 


TABLE   OF    CASKS    CITED. 


943 


J>avoiie  r.  Fanning,  2  Johns.  Ch.  251, 
.     2.52.  253,  258,  260,  2  Scott  690,   p. 

515,  619. 
Day  V.  Cummings,  19  Vt.  495,  496,  p. 

132. 
Day  V.  Hunt,  112  N.  Y.  191,  19  N.  E. 

414,  2   Keener   1114,  p.   891,   900. 
Day  V.  Newman,  2  Cox,  77,  10  Ves.  300, 

2  Seott  227,  p.  482. 
Day   V.   Wells,   30   Beav.   220,    1   Ames 

Eq.  Jiir.  380,  2  Keener  951,  p.  432. 
Day   Land   etc.   Co.   v.    State,   68   Tex. 

527,  4  S.  W.  865,   1   Keener  364,  p. 

877. 
Dajiion  H.  Co.  v.  Felsenthall.  116  Fed. 

961,  55  C.  C.  A,  537,  p.  810. 
Deacon  v.  Smith,  3  Atk.  323,  1   Scott 

327,  p.  252. 
Dean  v.  Long,   122  111.  447,  14  N.  E. 

34,  p.   550. 
Dean    v.    Robertson,    64    Miss.    195.    1 

South.  159,  p.  179. 
Dean's  Heirs  v.  Mitchell's  Heirs,  4  J. 

J.    Marsh    (Ky.)    451,    1    Ames    Eq. 

Jur.  204,  p.  163. 
Dearie   v.   Hall,   3   Russ.    1,   48,   Ames 

Trusts  323,  p.  322,  323,  325. 
Deason  V.  Taylor,  53  Miss.   697.   701. 

H.  &  B.  97,  p.  281. 
Debell  V.   Foxworthy,  9  B.   Mon.   228, 

p.    285. 
Debenham  v.  Ox,  1  Ves.  Sr.  270,  2  Scott 

666,  p.  487. 
De  Berry  v.  Wheeler,  128  ]\Io.  84.  49. 

Am.  St.  Rep.  538,  30  S.  W.  338.  p. 

397. 
Debs,   In   re,    158   U.   S.   564.    15   Sup. 

Ct.   900,  34  L.  ed.   1092,  Shep.   304, 

p.    826. 
De  Bussche  v.  Alt,  L.  R.  8  Ch.  Div. 

286.  314,  p.  518,  524. 
Decatur  Mineral  Land  Co.  v.  Palm,  113 

Ala.  531,  21  South.  315,  59  Am.  St. 

Rep.   140.  p.  631. 
Deck  V.  Tabler,  41  W.  Va.  332,  23  S. 

E.  721,  56  Am.  St.  Rep.  837,  p.  591. 
Deck   V.   Yerke,    12   Cal.   433,   436,   73 

Am.  Dec.  555,  p.  672. 
Decker  v.  Adams,  28  N.  J.  Law,  511, 

78  Am.  Dec.  65,  p.  1226. 
Decker  v.  Boice,  83  N.  Y.  215,  p.  351. 
Deeks   v.   St.i-utt,   5   Term   Rep.   69,   p. 

655. 


Doore  v.   Guest,   1   Mylne  &  C.   510,   1 

Ames  Eq.  Jur,  492,  1  Keener  564,  p. 

842. 
Deeth  v.  Hale,  2  Molloy,  317,  1  Scott 

641,  p.  685. 
De  Graft",  Vrieling  &  Co.  v.  Wickham, 

89  Iowa,  720,  52  N.  W.  503.  p.  220. 
De  Gray  v.  Monmouth  Beech  Clubhouse 

Co.  50  N.  J.  Eq.  329,  24  Atl.  388,  2 

Scott  534,  p.  776. 
Dclafield   v.    State   of   Illinois,   2   Hill. 

159,  164,  p.  670. 
Delaney  V.  McCormack,  88  N.  Y.   174, 

H.  &  B.  407,  p.  677. 
De  Laurencel  v.  De  Boom,  48  Cal.  581, 

p.  567. 
De    La    Vergne    Refrig.    ]\Iach.    Co.    v. 

]\Iontgomery    Brewing    Co.,    46    Fed. 

829,  p.   757. 
De  :\Iartin  v.  Phelan,  115  Cal.  538,  47 

Pac.  356,  56  Am.  St.  Rep.  115,  Kirch. 

405,   p.    698. 
De  :\rattos  v.   Gibson,  4   De  Gex  &  J. 

276,  1  Ames  Eq.  Jur.   102.  p.  819. 
Demeter   v.    Wilcox,    115   Mo.    634,    22 

S.  W.  613,  37  Am.  St.  Rep.  422.  p. 

345. 
Deming  v.  ]\Iiles,  35  Nebr.   739,   53  X. 

W.  665,  37  Am.  St.  Rep.  464,  p.  204. 
Dempsie  v.  Darling,  39  Wash.   125,  81 

Pac.  152,  1  Scott  735,  p.  830. 
Demuth  v.  Old  Town  Bank,  85  Md.  315, 

37  Atl.  266,  60  Am.  St.  Rep.  322,  p. 

351. 
Dcnison  Mfg.  Co.  v.  Thomas  ^Ifg.  Co., 

94  Fed.  651,  Lewis  171,  p.  840. 
Dennis  v.  Jones,  44  N.  J.  Eq.  513,   14 

Atl.    913,    6    Am.    St.    Rep.    899,    3 

Keener  728,  p.  401,  475. 
Dennis    v.    Northern    Pac.    R.    Co..    20 

Wash.  320,  55  Pac.  210,  p.  277. 
Denny  v.   Hancock,   L.   R.   6   Ch.    1.   3 

Keener  969,  p.  431,  432,  444. 
Denton  v.  MacNeil,  L.  R.  2  Eq.  352,  ]). 

449,   526. 
Dering  v.   Earl  of  Winehelsea,   1   Cox, 

318,  1   Lead.  Cas.  Eq.,  4th  Am.  ed.. 

120,  124,  134-188,  Shep.  94,  1   Scott 

367,  p.  56,  68,  914. 
De  Rivafinoli  v.  Corsctti.  4  Paige,  204, 

25   Am.   Dec.   532,   p.   886. 
Derry  v.   Peek,   14  App.   Cas.    (H.  L.) 

337,  p.  451,  452. 


944 


TAELE    OF    CASKS    CITED. 


Desborough  v-  Harris,  5  De  Gex,  M.  & 

G.  439,  455.  p.  792. 
Desinare   v.    United    States,    93    U.    S. 

G05,  p.  494. 
Detroit  Copper  &  Brass  Rolling  Mills 

Co.  V.  Ledwidge,  162  111.  305,  44  N. 

E.  751,  p.  79. 
Devlin  v.  The  Mayor,  63  N.  Y.  8,  p. 

760,   761. 
De  Walsh  v.  Braman,  160  111.  415,  43 

N.  E.  597,  p.   177. 
DeAvar  v.   Maitland,  L.  R.  2  Eq.   834, 

838,  p.  233. 
Dewey  v.  Allgire,  37  Nebr.  6,  55  N.  W. 

276,  40  Am.  St.  Rep.  468,  p.  505. 
De   Witt   V.   Yates,    10   Johns.    156.    6 

Am.  Dec.  326,  H.  &  B.   144,  p.  244, 

245. 
Dexter   v.    Arnold,   2    Snm.    108,    Fed. 

Cas.  No.  3,858,  Kirch.  522.  p.  719. 
Dial  V.  Hair,  18  Ala.  798,  54  Am.  Dec. 

179,  p.  494. 
Diamond  v.  Lawrence  Co.  Bank,  37  Pa. 

St.  353,  78  Am.  Dec.  429,  p.  286. 
Diamond  Match  Co.  v.  Roeber,  106  N. 

Y.  473,   13  N.  E.   419,  60  Am.  Rep. 

464,    1    Ames   Eq.   Jur.    123,   p.   491, 

820. 
Dickenson   v.   Grand  June.    C.    Co.,    15 

Beav.  260,  270,  2  Keener  312,  p.  820. 
Diekerson  v.  Tillinghast,  4  Paige,  215, 

25  Am.  Dee.  528,  p.  356. 
Dickinson  v.  Burrell,  L.  R.   1  Eq.  337, 

p.    592. 
Dickinson's  Appeal,  152  Mass.   184,  25 

N.  E.  99,  Ames  Trusts  478,  p.  615. 
Dickson's  Trusts,  In  re,  1   Sim.,  N.  S., 

37,  43,  44,  46,  p.  489. 
Dietrichsen    v.    Cabburn.    2    Phill.    Ch. 

52,  1  Ames  Eq.  Jur.  108,  2  Scott  92, 

2  Keener  220,  p.  818,  820. 
Dillard  v.   DiHard,   97   Va.  434,   34   S. 

E.   60,   p.   607. 
Dilley  v.  Love,  61  Md.  603,  p.  248. 
Dillingham  v.  Howk,  60  Fed.  494,  9  C. 

C.  A.  101,  23  L.  R.  A.  517,  p.  809. 
Dillon  V.  Heller,  39  Kan.  599,  18  Pac. 

693,  1  Ames  Eq.  Jur.  14,  1  Scott  246, 

p.   207. 
Dilly  V.  Doig,  2  Ves.  486,  2  Ames  Eq. 

Jur.  58,  1  Keener  117,  p.   106. 
Diman  v.  Providence  R.  R.,  5  R.  T.  130. 

135,  3  Keener  256,  p.  414,  429,  438. 


Dimmick  v.  Delaware,  L.  &  W.  R.  R. 

Co.,  180  Pa.  St.  468,  36  Atl.  866,  p. 

133. 
[  Dineley  v.  Dineley,  2  Atk.  394,  p.  79. 
j  Dingman  v.  Roniine,   141   Mo.  466,  42 

S.  W.  1087,  p.  50(). 
Dinwidde  v.  Bailey,  6  Ves.  136,  1  Ames 

Eq.  Jur.  442,  p.  918. 
Dinwiddle  v.  Self,   145  111.  290.  33  N. 

E.  892,  3  Keener  137,  p.  198,  419. 
Distilled  Spirits,  11  Wall.  356,  {).  302, 

306,  307. 
D.  M.  Osborne  &  Co.  v.  Mo.  Pac.  R.  Co., 

147   U.   S.  248,   13   Sup.   Ct.  299,  37 

L.  ed.  155,  p.  824. 
Dobbin  v.   Cordiner,  41   Minn.   1()5.  42 

X.  W.  870,   16  Am.   St.  Rep.  683,  4 

L.  R.  A.  333,  Shep.   130,  p.  399. 
Dobie  v.  Fidelity  etc.  Co.,  95  Wis,  540,. 

(iO  Am.  St.  Rep.  135,  70  N.  W.  482, 

]).   914. 
Dock  v.  Dock,   ISO  Pa.  St.  14,  57  Am. 

St.  Rep.  617,  36  Atl.  411,  p.  80. 
Docker  v.   Somes,  2  ^Slylne  &   K.   665, 

p.  617. 
Dodd  V.  Hartford,  25  Conn.  232.  238, 

2  Ames  Eq.  Jur.  691,  p.  123,  124. 
Dodkin    v.    Brunt,    L.    R.    6    Eq.    580, 

Ames  Trusts  226,  p.  567,  625. 
Doescher  v.  Doescher,  61  Minn.  326.  63 

N.  W.  736,  p.  751. 
Doherty  v.  Allman,  L.  R.  3  Apj).  Cas. 

709,  1  Ames  Eq.  Jur.  462,  1  Keener 

476,  1  Scott  664,  p.  828. 
Dolman    v.     Nokes,    22     Beav.    402.     3 

Keener  565,  p.  464,  468. 
Domestic  &  F.  Missionary  Soc.  of  tlie 

P.  E.  Church  v.  Eels,  68  Vt.  497,  54 

Am.    St.    Rep.   888,   35   Atl.    463,   p. 

473. 
Donaldson    v.    Donaldson.    Kay.     711, 

719,  Ames  Trusts  146,  p.  559,  562. 
Doniol  v.  Commercial  Fire  Ins.  Co..  34 

\'.  J.  Eq.  30,  2  Ames  Eq.  Jur.  237, 

p.  438. 
Donk  V.  Alexander,  117  111.  330.  7  X. 

E.   672,  p.  381. 
Donley  v.  Hays,  17  Serg.  &  R.  400,  p. 

707. 
Donnell  v.  Bennett,  L.  R.  22  Ch.  Div. 

835,    1    Ames   Eq.   Jur.    114,   2   Scott 

114.  2  Keener  275,  H.  &  B.  627,  p. 

818,    820, 


TABLE   OF    CASES    CITED. 


945 


Dooley  v.  Watson,  1  Gray,  414,  p.  222. 
Doran  v.  Dazey,  5  N.  D.  167,  U4  N.  W. 

102;5,  57  Am.  St.  Rep.  550,  p.  297. 
Dormer  v.  Forteseue,  3  Atk.  124,  130, 

132,  1  Keener  523,  p.  864,  8(i5. 
Dorn  V.  Fox.  Gl   N.   Y.  264,   1   Keener 

249,   p.    790,    791,   793. 
Dorr  V.  fSliaw,  4  Johns.  Ch.  17,  p.  181. 
Doswell  V.  Buclianan's  Fx'rs,  3  Leigh, 

365,  381,  23  Am.  Dec.  280,  p.  365. 
Dow  V.  Mempliis  etc.   R.   Co.,  20   Fed. 

260,  268,  p.  809. 
Dowdy  V.  Blake,  50  Ark.  205,  6  S.  W. 

897,  7  Am.  St.  Rep.  88,  p.  752. 
Dowell   V.   Goodwin,   22   R.   I.   287,   84 

Am.   St.   Rep.   842,   47   Atl.    693.    51 

L.  R.  A.  873,  p.   855. 
Dower  v.  Seeds,  28  W.  Va.  113,  57  Am. 

Rep.  646,  p.  473. 
Dowie  V.  Driscoll,  203  Til.  480,  68  X. 

E.  56,  p.  510. 
Dowling  V.  Betjemann,  2  Johns.  &  H. 

544,  1  Ames  Eq.  Jur.  40,  2  Scott  41, 

2  Keener  20,  p.  882. 
Dows  V.   Chicago,  11   Wall.   108,  20  L. 

ed.  65,  p.  823. 
Dowson  V.  Solomon,  1  Drew.  &  S.  1,  1 

Ames  Eq.  Jur.  418,  p.  894. 
Drake  v.  Storr,  2  ^ir^em.  205,  p.  635. 
Drake  v.  Wild,  65  Vt.  611,  27  Atl.  427. 

p.    816. 
Draper  v.  Bryson,  26  Mo.  108,  (i9  Am. 

Dec.  483,  p.  343. 
Drew  V.  Hagerty,  81  Me.  231,   17   Atl. 

63,  10  Am.  St.  Rep.  255,  3  L.  R.  A. 

230,  p.  668. 
Drewe  v.  Corp.,  9  Ves.  368,  2  Scott  394. 

]).    905. 
Dreyfus  v.  Penivian  Guano  Co.,  L.  R. 

41  Ch.  Div.  151,  p.  77. 
Drinkale  v.  Movius  State  Bank,  11  X. 

Dak.   10,  88  X.  W.  724,  95  Am.   St. 

Rep.  693,  57  L.  R.  A.  ,341,  p.  499. 
Dryden  v.  Frost,  3  Mylne  &  C.  670,  p. 

750. 
Du  Bois  V.  Ray,  35  X.  Y.  102,  p.  43^^. 
Ducie  V.  Ford,  138  U.  S.  587,  11   Sup. 

Ct.  417,  34  L.  ed.  1091,  p.  590. 
Duckett  V.  Bank,  86  Md.  400,  38  Atl. 

983,  63  Am.   St.  Rep.  513.  39  L.  R. 

A.  84.  p.  620. 
Dudley  V.   Dudley,  Free.   Cii.  241,  244, 

p.  24. 

60 


Dueber  Watch-Case  Mfg.  Co.  v.  Daugh -• 

erty,  62  Ohio  St.  589,  57  N.  E.  455, 

p.  326,  333,  337,  346,  347. 
Dufi"  .Mfg.  Co.  V.  Norton,  92  Fed.  921, 

]).  830. 
Dugan    V.    Vattier,    3    Blackf.     (Ind.) 

245,  25  Am.  Dec.  105.  ]>.  362. 
Du  Hourmelin  v.   Sheldon,  4  Mylne  & 

C.  525,  1  Beav.  79,  p.  549. 
Duke  of  Beaufort  v.  Berty,  1  V.  Wms. 

703,  p.  803. 
Duke  of  Bedford  v.  Trustees.  2  ?tlylne 

&  K.   552,  2  Keener   1010.  p.   777. 
Duke   of   Dorset  v.    Girdler.    Free.    Ch. 

531,  2  Ames  Eq.  Jur.  166,  p.  84,  85. 
Duke  of  Leeds  v.  Amherst,  2  Pliill.  Ch. 

117,  123,  p.  524,  525. 
Did<e    of    St.    Albans   v.    Beauclerk,    2 

Atk.  638,  p.  244. 
Duke    of    Somerset   v.    Cookson.    3    P. 

Wms.   389,   1   Ames  Eq.   Jur,   39,   p. 

882. 
Duirs  Appeal,  113  Pa.  St.  510,  6  Atl. 

540,   1   Keener  348,  p.  875. 
Dumars    v.     City    of    Denver,     (Colo. 

App.)    Go  Pac.   580,  p.    115. 
Dummer  v.  Cnrp'n  of  Chippenham,   14 

Ves.  245,  254,  p.  79. 
Dumond   v.   Magee,   4   Johns.   Ch.   318, 

322,  p.  647. 
Dunckel  v.  Dunckel,  141  N.  Y.  427.  36 

X.  E.  405,  2  Keener  735,  p.  902. 
Dunoomb  v.  New  York  etc.  R.  R.,  84 

X.  Y.  190,  198,  p.  618. 
DuiK-ombe  v.  Felt,  81  Mich.  332.  45  X. 

W.  1004,  H.  &  B.  760,  1  Keener,  500, 

p.  828. 
Duncuft   V.    Albrecht,    12    Sim.    189,    1 

Ames    Eq.    Jur.    55,    2    Scott    44.    2 

Keener  15,  p.  884. 
i:)ungers   v.    Angove.   2   Ves.    304,   310, 

312.   3   Keener  205,   p.   797,   859. 
Duula])   V   Hawkins,   59   X.    Y.   342.   ]). 

530,  531,  532. 
Dunman  v.   Coleman,   59  Tex.    199.  67 

Tex.   390,  3   S.  W.  319,  p.  319. 
Dunn  V.  Barnum,  2  C.  C.  A.  265,  269, 

51  Fed.  355,  359,  360,  10  U.  S.  App. 

86,   p.   265,  359. 
l'>uun  V.  Dunn,  42  X.  J.  Eq.  431,  7  Atl. 

S!42.  3  Keener  819,  p.  519. 
Durant  v.  Crowell,  97  X'.  C.  367,  2  S, 

E.   541,  p.  348. 


946 


TABLE    OF    CASES    CITED. 


Durfee's  Petition,  14  R.  I.  47,  p.  23G. 
Durham    v.    Legard,    34    Beav.    611,    1 

Ames  Eq.   Jiir.   395,  2   Scott  385,   2 

Keener   1206,  p.  905. 
Durst  V.  Daugherty,  81  Tex.  650,  17  8. 

W.  388,  p.  282,  362. 
Duryee   v.   United    States   etc.    Co.,   55 

N.  J.  Eq.  311,  37  Ail.  155,  p.  808. 
Dutton  V.  Warschauer,  21  Cal.  609,  621, 

623,  82  Am.  Dec.  765,  p.  693. 
Duval  V.  Wellman,   124  N.  Y.   158,  26 

N.  E.  343,  p.  487,  501. 
Duvall  V.  Farmers'  Bank,  4  Gill  &  J. 

283,  290,  23  Am.  Dec.  558,  p.  647. 
Duvall    V.    Waters,    1    Bland,    569,    18 

Am.  Dec.  350,  p.  844. 
Dwight  V.  Hayes,  150  111.  273,  41  Am. 

St.   Rep.  367,  37  N.  E.  218.  p.  830, 

8:51. 
Dyer  v.  Dyer,  2  Cox,  92,  1  Lead.  Cas. 

Eq.,   4th     Am.    ed.,   314,     319,     333, 

H.  &  B.  452,  Shep.  208,  p.  590,  591, 

602. 
Dyer  v.   Hargrave,    10  Ves.    505,    506, 

1  Ames  Eq.  Jur.  245,  p.  456,  458. 
Dyke's  Estate,  In  re,  L.  R.  7  Eq.  337, 

p.  411. 
Dysart  v.  Crow,  170  Mo.  275,  70  S.  ^^^ 

689,    p.    132. 


E. 


Eaden  v.   Firtli.    1    Hen.   &  M.   573,   1 

Ames  Eq.  Jur.  564,  p.  832. 
Eaglesfield  v.  Mai'quis  of  Londonderry, 

L.  R.  4  Ch.  Div.  693,  702,  703,  709. 

p.  422,  445. 
Earl  of  Bath  v.  Sherwin,  Free.  Ch.  261, 

10  Mod.   1,  3,  4,  1  Brown  Pari.  Cas. 

266,  270.  2  Brown  Pari.  Cas.,  Tom- 

lin's  ed.,  217,  2  Ames  Eq  Jiir.  95,  1 

Keener   153,   p.   27,   105,   108. 
Earl  of  Chesterfield  v.  Janssen,  2  Ves. 

Sr.  125,  1  Atk.  301,  1  Lead.  Cas.  Eq.. 

Eng.  ed.,  773,  809-825,  4th  Am,  ed., 

825-836,  1   Scott  455,  p.  443. 
Earl    of    Clarendon    v.    Hornbj,    1    P. 

Wms.  446,   p.   869. 
Earl  of  Feversham  v.  Watson,  Fi-eem. 

Ch.  35,  1  Ames  Eq.  Jur.  317,  p.  897. 
Earl  of   Oxford's   Case,   1   Ch.   Rep.    1, 

2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1291, 

Shep.  26,  p.  S52. 


Earloui  v.  Saunders,  Amb.  241,  1  Scott 

637,  3  Keener  951,  p.  679. 
Earl  Spencer  v.  Peek,  L.  R.  3  Eq.  415. 

2  Ames  Eq.  Jur.  170,  p.  84,  85. 
Earl  Talbot  v.  Hope  Scott,  4  Kay  &  J. 

96,  p.  804. 
Early  v.  Friend,  16  Gratt.  21,  78  Am. 

Dec.  649,  p.  869,  919. 
East  &  West  R.  Co.  of  Ala.  v.  E.  T.  V. 

&  G.  R.  Co.,  75  Ala.  280,  p.  824. 
East  Birmingham  Land  Co.  v.  Denison, 

85   Ala.   565,   5   So.   317,   7   Am.    St. 

Rep.  73,  2  L.  R.  A.  836,  p.  332. 
East   India   Co.   v.    Vincent,   L.   R.    35 

Ch.  D.  694,  1  Ames  Eq.  Jur.  310,  p. 

904. 
East  Moline  Plow   Co.   v.    Weir  Plow 

Co.,  95   Fed.  250,  p.  221. 
Eaton   v.   Benton,  2  Hill,  576,  578,  p. 

243. 
Eaton  V.  Eaton,   15  Wis.  259,  2  Ames 

Eq.  Jur.  244.  p.  859. 
Echelkamp  v.  Schrader,  45  Mo.  505,  1 

Ames  Eq.  Jur.  511,  p.  843,  844. 
Echols    V.    Hubbard,    90    Ala.    309,    7 

South.  817,  p.  875. 
Economy    Sav.    Bank    v.    Gordon,    90 

Md.   486,   45  Atl.    176,  48   L.   R.   A. 

63,  H.  &   B.  19,  p.   197,  372. 
Edgerton    v.    Edgerton,    12    Mont.    122, 

29   Pac.   966,   33   Am.    St.   Rep,   557, 

16  L.  R.  A.  94,  p.  648. 
Edgerton    v.    Peckham,    11    Paige   352, 

359,  2  Scott  337,  p.  899,  900. 
Edgington  v.  Fitzmaurice,  29  Ch.  Div, 

459,   p.    445. 
Edison  Electric  L.   Co.   v.   Beacon   etc. 

Co..   54   Fed.   678,   1   Ames   Eq.   Jur. 

630,  p.   836. 
Edison    Electric    Light    Co.    v.    U.    S. 

Electric  Light   Co.,   45   Fed.   55,   58, 

p.  80. 
Edmeston   v.    Lyde,    1    Paige,    637,    19 

Am.  Dec.  454,  p.  910. 
Edwards  v.   Hill,  59   Fed.   723,   19  LT. 

S.  App.  493,  p.  140. 
Edwards  v.  Jones,   1   Mylne  &  C.  226, 

235,   238,   Ames   Trusts    140,   p.   559, 

562,  607. 
Edwards    v.    McLcay,    2    Swanst.    287, 

Coop.   &   Eld.   308,   2   Scott   718,   p. 

462. 


'rAiii.i:  oi-   ('\si:s  ciTEn. 


947 


Edwards   v.    IMcyrick,   2    Hare.   (iO,    7.1, 

p.    519. 
Edwards  v.  Kainier's  Ex'rs,  17  Ohio  St. 

597,  H.  &     B.   14G,  p.  244,  245. 
Edwards   v.   Tlioinpson,  71   N.   C.    177, 

179.   p.   278. 
Edwards  v.  West,  L.  R.  7  Ch.  Div.  858, 

8G2,  863,  1  Scott  604,  p.  681. 
Edward    Thompson    Co.   v.     American 

Law  Book  Co.,   122  Fed.   923,   59  C. 

C.  A.   148,  p.  838. 
Eodes  V.  Eedes,  11  Sim.  569,  p.  648. 
Efland  v.  Efland,  96  N.  C.  493,  1  S.  E. 

858,   p.    132. 
Egbei't  V.  Greenberg,   100  Fed.  447,  p. 

838. 
Eggeman   v.    Eggeman,   37   Mich.    436, 

p.  345,  349. 
Eldridge  v.  Dexter  &  P.  R.  R.  Co.,  88 

Me.   191,  33  Atl.  974,  3  Keener  158, 

p.   418. 
Electric  L.  Co.  v.  Mobile  &  S.  H.  Ry. 

Co.,   109  Ala.    190,  55   Am.   St.  Rep. 

927,  19  South.  721,  p.  889. 
Ellard  v.   Lord   Llandaff,   1    Ball   &   B. 

241,  1  Ames  Eq.  Jur.  363,  2  Keener 

854.  2   Scott  246,  p.   468. 
Elliott  V.  Fisher,  12  Sim.  505,  p.  681. 
Elliott   V.    Sackett,    108    U.    S.    140,    2 

Sup.  Ct.  375,  27  L.  ed.  680,  p.  710. 
Elliott  V.  Whitmore.  23  Utah,  342,  65 

Pac.    70.    90    Am.    St.    Rep.    700,    p. 

395. 
Ellis   V.    Ellis's   Adm'rs,    15    Ala.    296, 

50  Am.  Dec.  132,  p.  571. 
Ellis   V.    Lewis,   3    Hare,   310,    315,    p. 

236. 
Ellis  V.  Vernon  etc.   Co.,  86  Tex.   109, 

23  S.  W.  S58.  p.  809. 
p:ilison  V.  Ellison,  0  Ves.  656,  1  Lead. 

Cas.  Eq.,  4th  Am.  ed.,  382,  389,  415, 

423. 

Ellison  V.  Moffatt,  1  Johns.  Ch.  46,  1 

Scott  387.  2  Scott  758,  Shep.  118,  p. 

198. 
Ellsworth   V.   Lockwood,  42   N.   Y.   89, 

97.  ]).  717. 
Elmbaiik.    The,    72    Fed.    610.    p.    325. 

358,   359,   360. 
Elmhirst    v.    S[)eneor.    2    Macn.    &    G. 

45,  1  Keener  661,  p.  832. 


Klmore    v.    Johnson,    143    111.    513.    3(i 

Am.  St.  Rep.   401,  404,  406,  407.   :!2 

N.  E.  413,  21  L.  R.  A.  366,  H.  &  B. 

343,    p.   518,   520. 
Else  V.  Kennedy,   67   Iowa  376,  25   X. 

W.  290,  3  Keener  429,  p.  859. 
Elting    V.    First    Nat.    Bank,    173    111. 

368,  50  N.  E.  1095,  p.  477,  515,  522. 
Ely  V.  Wilcox,  20  Wis.  523,  530,  531, 

551,   91    Am.   Dec.   436,   p.   368. 
Elyton  Land  Co.  v.  Dowdell,   113  Ala. 

177,  20  South.  981,  59  Am.  St.  Rep. 

105,  p.  630. 
Emack  v.  Kane,  34  Fed.  46,  Lewis  326. 

p.  845. 
Emanuel     College    v.     Evans,    1     Rep. 

Chan.   18,   1  Scott  31,  Kirch.  704.  p. 

687. 
Embrey  v.   Jemison,   131   U.   S.   336,   9 

Sup.  Ct.  776,  p.  486. 
Emerson  v.  Udall,  13  Vt.  477,  37  Am. 

Dec.  604,  p.  851. 
Emery   v.    Batchelder.    78    Me.    233,    3 

Atl.  733,  p.  660. 
Emery   v.    Clough,    63    N.    H.    552,    56 

Am.  Rep.  543,  4  Atl.   796,  p.  606. 
England    v.    Curling,    8    Beav.    129,    2 

Keener  68,  p.  885. 
England    v.    Do^\tis,    2    Beav.    522.    p. 

487. 
English    V.    Lindley,    194    111.    181,    62 

N.  E.  522,  p.  365. 
Enos  V.  Sanger,  96  Wis.  151,  70  X.  W. 

lOfiO,  65  Am.   St.  Rep.  38,  37  L.  R. 

A.,  862,  p.  712. 
Equitable  Gas  Light  Co.  v.   Baltimore 

etc.  Co.,  63  Md.  285.  2  Keener  35.  p. 

882. 
Erdraan  v.  Mitchell,  207  Pa.  St.  79,  9!) 

Am.  St.  Rep.  783,  56  Atl.  327,  Lewis 

290,  p.  847. 
Erhardt   v.    Boaro,    113    U.    S.    5.37.    5 

Sup.  Ct.  565,  28  L.  ed.  1116,  1  Amos 

Eq.  Jur.  507,  I  Scofct  704,  1  Keener 

634,  p.  843. 
Erickson  v.   First  X^at.   Bank,  44  Xob. 

622.  48  Am.  St.  Rep.  753,  62  X.   U". 

1078,  38  L.  R.  A.  377.  p.  861. 
Erkens   v.    Nicolin,   39   Minn.    461,   40 

N.  W.  567,  H.  &  B.  216.  Shep.  152, 

p.   425. 


948 


TABLE    OP    CA,S]:S    CITED. 


Eschweiler  v.  Stowell,  78  Wis.  316,  47 

N.  W.  361,  23  Am.  St.  Rep.  411,  p. 

634. 
i^Ispin   V.    Pemberton,   3    De   Gex   &   J. 

547,  554,  555,  556,  4  Drew,  333,  p. 

304. 
Essex  V.  Atkins,   14  Ves.   542,  p.   640. 
Essex  Co.  Bank  v.  Harrison,  57  N.  J. 

Eq.  91,  40  Atl.  209,  p.  300. 
Estes  V.  Gunter,  122  U.  S.  450,  7  Sup. 

Ct.    Rep.    1275,    30    L.    ed.    1228,    p. 

556. 
Estis  V.  Jackson,  111  X.  C.  145,  32  Am. 

St.  Rep.  784,   16  S.  E.  7,  p.  396. 
Evans  v.  Hunter,  86  Iowa,  413,  41  Am. 

St.  Rep.  503.  53  X.  W.  277,  17  L.  R. 

A.   308,  p.   657. 
Evans's  Appeal,  51  Conn.  435,  p.  238. 
Kvcrson  v.   Equitable   Life  Assur.   Co., 

68   Fed.  258,  p.   78. 
Everts  V.   Agnes,  4   Wis.   343,  65  Am. 

Dec.  314,  p.  377,  378. 
Ewer  V.  Hobbs,  5  Met.  1,  3,  ]).  692. 
Ewing  V.  Smith,  3  Desaus.  Eq.  417,  5 

Am.   Dec.   557,   p.   642. 
Ewins  V.  Gordon,  49  X.  H.  444.  p.  881. 
Exon  V.  Daneke,  24  Oreg.  110,  32  Pac. 

1045,  p.  277. 
Eyre  v.   Countess  of   Shaftsbury,  2   P. 

Wms.    103,    2    Lead.    Cas.    Eq.,    4th 

Am.  ed.,  1416,  1446,  1487,  p.  782. 
Eyre  v.   Everitt,   2   Russ.   381,  382,  p. 

131. 

F. 

Factors'  etc.  Ins.   Co.  v.  Murphy,   111 

U.  S.  738,  4  Sup.  Ct.  679,  p.  383. 
Faine  v.  Brown,  2  Ves.  Sr.  307,  1  Ames 

Eq.  Jur.  397,  2  Scott  285,  p.  894. 
Fairbanks  v.    Sargent.    104   X.   Y.    108, 

117,  9  X.  E.   870,  58  Am.  Rep.  490, 

s.  c,   117  X.  Y.  320,  22  X.  E.   1039. 

6  L.  R.  A.  475,  p.  337. 
Fairfield   Sav.   Bank  v.   Chase,   72  Me. 

226,  39  Am.  Rep.  319,  p.  302. 
Fairland  v.  Percy.  L.  R.  3  P.  &  D.  217. 

Ames  Trusts,  423.  p.  r)24. 
Falcke  v.  (iray.  4  Drew.  651,  H.  &   B. 

655.  p.  431,  483.  882. 
Fallass  v.  Pierce,  30  Wis.  443.  p.  368. 
Fanning  v.  Dunham.  5  Johns.  Ch.  122. 

142,    143,    144.    9    Am.    Dec.    283.    1 

Scott  271,  p.   178,   179,  486,  497. 


Fant  V.  Miller,  17  Graft.  187,  p.  88. 
Farabee   v.    McKerrihan.    172    Pa.    St. 

234,  33  Atl.  583,  51  Am.  St.  Rep.  734, 

p.    294. 
Farina  v.   Silverlock,  6  De  Gex,  M.  & 

G.  214,  217,  p.  839. 
Farington  v.  Parker,  L.  R.  4  Eq.   116, 

p.    640. 
Farley  v.  Blood,  30  X.  H.  354,  2  Ames 

Eq.  Jur.  4,  p.  790,  791,  797,  798,  799. 
Farley    v.    Turner,    26    L.    J.    Ch.    710, 

Ames  Trusts  40,  p.  569. 
Farmers  &  Mechanics'  Bank  v.  Butch- 
ers' etc.  Bank,  16  X.  Y^  125,  69  Am. 

Dec.  678,  14  X.  Y.  623,  p.  391. 
Farmers  &  Merchants'  Bank  v.  Far  well, 

58  Fed.   633,  7   C.  C.  A.  391,   19  U. 

S.  App.  256,  p.  323. 
Farmers'  Bank  v.  Diebold  Safe  &  Lock 

Co.,  66  Ohio  St.  367,  64  X.  E.   518, 

90    Am.    St.    Rep.    586,    58    L.   R.    A. 

620.  p.  337. 
Farmers'  L.  &  T.  Co.  v.  Bankers'  Tel. 

Co..   148  X.  Y.  315,  51  Am.  St.  Rep. 

(i90,  42  X.  E.  707,  31  L.  R.  A.  403,  p. 

811. 
Farmers'  L.  &  T.   Co.  v.   Denver,  L.  Sc 

G.  R.  Co.,   126  Fed.  46,  60  C.  C.  A. 

588,   p.    177. 
Farmers'  Loan  etc.  Co.  v.  Grape  Creek 

Coal  Co.,  50  Fed.  481,  H.  &  B.  879, 

p.  810. 
Farmers'    L.    &    T.    Co.    v.    Maltby,    8 

Paige,  361,  j).  298. 
Farmers'   Loan   &   T.    Co.    v.   Xorthern 

Pac.  R.  Co.,  74  Fed.  431,  p.  810. 
I'armers'  L.  &  T.  Co.  v.  Pennsylvania 

Plate  Glass  Co.,   103   Fed.   132.   151, 

43   C.   C.   A.    114,   56  L.   R.   A.   710, 

p.    739. 
Farmers'   Savings   &  B.   &  L.   Ass'n   v. 

Kent,    117   Ala.   624,  23   South.   757, 

p.   726. 
Farmington  Corp.  v.  Bank,  85  Me.  46, 

52,   26  Atl.   965,  p.    122. 
Farnsworth   v.   Duflfner.    142   U.    S.   43, 

12  Sup.  Ct.  164,  p.  457.  458. 
Fa  mum  v.   Bascom,   122   :Mass.  282,   p. 

657. 
Karrand  v.  Yorkshire  Banking  Co.,  L. 

\\.   40  Ch.   Div.    182.  p.   318.  349. 
Far  rant  v.  Blanchford,  1  De  Gex,  J.  & 

S.    107,   119,   120,  p.   522. 


TABLK    OF    CA!SES    CITED. 


949 


Farrant  v.  Lovel.  3  Atk.  723,  1  Keener 

45;5.    1    Scott  (itiO.  p.  821). 
Fanar  v.    \\'int('iton,  ;5   Beav.    1.  8,   p. 

Farwell  v.  Becker,  129  111,  2U1,  IG  Am. 

St.  Rep.  207.  21   X.  E.  792.  tJ  L.  R. 

A.   400,   p.   914. 
Farwell  v.  Bigelow,  112  Mich.  28.5,  70 

N.    W.    579,   p.    909. 
Farwell    v.    Cotting,    8    Allen.    211,    p. 

Stio. 
Faulkner's  Adni'r  v.  Harwood,  0  Rand. 

125.  p.  77. 
Fay  V.  Valentine.  12  Pick.  40,  22  Am. 

Dec.   397,   p.   349. 
Fechheinier    v.    Bauni.    37    Fed.    ICu.   2 

L.  R.  A.   153,  H.  &  B.  837,  p.  80(i. 
Feeney    v.    Howard,    79    Cal.    525,    530, 

12    Am.    St.    Rep.    162.    21    Pac.    984, 

4  L.  R.  A.  82<).  p.  (504. 
Fehlherg    v.    Cosine.    16    R.    I.    162,    13 

Atl.  110,  3  Keener  312,  p.  438. 
Fellowes  v.   Lord  Gwydyr,   1    Sim.   63, 

1    Russ.   &  M.   83,   2   Keener  889,   p. 

462. 
Fellows   V.    Rij)ley.    69    X.    H.    410.    45 

Atl.  1.38,  p.  547. 
Fells  V.   Read,   3   Vcs.   70,  2   Scott  37, 

II.   882. 
Fennelly  v.  Ashdown,  1   Ir.  C'li.  706.   1 

Ames  Kq.   Jur.   423,  2  Scott   137,  p. 

893. 
Fenton  V.  Miller,  116  Mich.  45,  72  Am. 

St.  Rep.  502,  74  X.  W.  384,  p.  869. 
Ferchen    v.    Arndt.    26    Oreg.    121,    46 

Am.   St.   Rep.   603,   37   Pac.    161.   29 

L.    R.    A.    664,    p.    605. 
Ferris  v.  Van  Vechten,  73  X.  Y.   113, 

H.  &  B.  461,  p.  599. 
Fesmire's   Estate,    134   Pa.    St.    67.    19 

Am.    St.   Rep.    676,    19    Atl.    502.   p. 

621. 
Festorazzi     v.     St.     Joseph's     Catholic 

Church,  104  Ala.  327,  18  South.  394, 

53    Am.    St.    Rep.    48,    25    L.    R.    A. 

360,  p.  576. 
Fidelity  Tr.  &  G.  Co.  v.  Fowler  Water 

Co.,   113   Fed.  560,  p.   101. 
Field   V.   City   of   Xew  York.   6   X.   Y. 
(2   Seld.)    179.  .57  Am.   Dec.   435,  p. 

330. 
Field  V.  Field.  [1894]   1  Ch.  425,  Ames 

Trusts  505,  p.  Gil. 


Fifield   V.   Van   Wyck,  94  Va.   557.  27 

S.   E.   446,   64  Am.   St.   Rep.    745.   p. 

231. 
Filley  v.  Duncan,  1  Xebr.   134.  9;',  Am. 

Dec.  337.  ]>.  377. 
Finance  Co.  of  Penn.  v.  Charleston  etc. 

R.   Co.,  45   Fed.  436,  p.  808. 
Finch    V.    Shaw,    19    Beav.    500,   511.   5 

H.  L.  Cas.  905,  p.  357. 
Finnegan  v.   Fernandina,    15   Fla.   379, 

21   Am.  Rep.  292,  p.  65,  201. 
First   Xat.    Bank   v.    Albertson.    (X.   .7. 

Ch.)    47  Atl.  818.  p.   132. 
First  Xat.  Bank  v.  Binninger,  26  X.  .T. 

Eq.  345,  2  Ames  Eq.  ,lur.  24,  p.  796. 
First   Xat.   Bank   v.   Browne,   128   Ala. 

557,  86  Am.  St.  Rep.   156,  29  Soutli. 

552,  p.  909. 
First  Xat.  Bank  v.  Christopher.  40  X. 

J.  L.  435,  29  Am.  Rep.  262,  p.   308. 
First  Xat.  Bank  v.  Eastman.  144  Cal. 

487,    103    Am.    St.    Rep.    95.    77    Pac. 

1043,  p.   912. 
First  Xat.   Bank  v.   Illinois  Steel   Co., 

170  in.   140.  51   X.  E.  200.  H.  &   B. 

871,  p.   805. 
Fir.st  Xat.  Bank  v.  Sarlls,  129  hid.  201, 

28  Am.   St.  Rep.   185,  28  X".  E.   434. 

13  L.  R  A  401,  p.  113. 
First   Xat.   Bank  v.   Schween,   127   111. 

573.   11   Am.   St.  Rep.   174.  20   X.   E. 

681,  p. 
Fir.st  Xat.   Bank  v.   Shedd.   121    U.   S. 

74.   7    Sup.   Ct.   807,   30   L.   ed.    877, 

p.  810. 
First   Xational   Bank  v.   Tompkins.   57 

Fed.  20,  6  C.  C.  A.  237,  p.  749. 
Fish  V.   Benson,   71    Cal.   429.    12   Pac. 

4.54,   p.    375. 
Fish  V.  Le.ser,  69  111.  394,  395,  H.  &  B. 

650,  p.  184.  485,  507,  894. 
Fisher   v.    Mellen,    103    :\[ass.    503,    p. 

45.3. 
Fitzhugh  V.  Hubbaid,  41  Ark.  64,  H.  & 

B.  232,  p.  232. 
Fitzsimmons  v.  Ogden,  7  Cranch.  2.  18, 

]).    196,  311,  314,  346,  347. 
Flagg  V.  INIann.  2  Sum.  486,  487.  518, 

533.  534.  554,  557.  560,  Fed.  Cas.  Xo. 

4.847.  Kirch.  167,  p.  278,  699.  740. 
Flannery  v.  Jones.  180  Pa.  St.  338,  36 

Atl.    85G,    57    Am.    St.    Rep.    648,   p. 

493. 


950 


TABLE    OF    CASES    CUTED. 


llcishner  v.   Citizens'  R.   E.   &  I.   Co., 

25  Oreg,  119,  35  Pac.  174,  p.  98. 
Fleming  v.    Burnham,    100   N.    Y.    1,   2 

Keener  1138,  p.  895. 
Fletcher,  In  re,  L.  R.  38  Ch.  Div.  373, 

p.  242. 
Fletcher   v.    Ashburner,    1    Brown   Ch. 

497,  500,  1  Lead.  Cas,  Eq.,  4th  Am. 

ed.,   1118,   1120,   1123,   1157,   1   Scott 

()06,   p.    166,    167,   554,   677,   685. 
Fletcher   v.    Bealey,   L.    R.   28    Ch.   D. 

t)88,  1  Keener  754,  p.  831. 
Fletcher  v.  Tuttle,  151  111.  41,  42  Am. 

St.  Rep.  220,  37  X.  E.  683,  25  L.  R. 

A.  143,  p.  821. 
Flight  V.  Bolland,  4  Russ.  298,  1  Ames 

Eq.  Jur.  422,  2  Scott  136,  2  Keener 

800,   p.  893. 
Flint  V,   Brandon,   8   Ves.    159,   164,   1 

Ames    Eq.    Jur.    69,    2    Scott    70,    2 

Keener  137,  p.  888. 
Flint  V.  Woodin,  9  Hare,  618,  p.  493. 
Flint  etc.  R'y  Co.  v.  Auditor-General, 

41  Mich.  635,  p.  557. 
Florida  Southern  R.  R.  Co.  v.  Hill,  40 

Fla.    1,    74    Am.    St.    Rep.    124,    23 

South.  566,  p.  752. 
Fluegel  V.  Henschel,  7  X.  Dak.  276,  (i6 

Am.    St.    Rep.    642,    74   N.    W.    996, 

p.   265. 
Fluker    v.    Taylor,     3     Drew,    183,     3 

Keener  906,  p.   918. 
Flynt  V.  Arnold,  2  Met.  619,  p.  368. 
Fogg  V.  Blair,   133  U.  S.  534,  10  Sup. 

Ct.  338,  33  L.   ed.  721,  p.   595. 
I'oley  V.  Burnell,  1  Brown  Ch.  274,  279, 

p.  656. 
Foley  V.  Greene,  14  R.  I.  618,  51   Am. 

St.  Rep.  419,  p.  502. 
I'oley  V.  Hill,  2  H.  L.  Cas.  28,  46,   1 

Ames   Eq.   Jur.    446,   3   Keener   897, 

p.   918,  919. 
I'ollette  V.  Mutual  Accident  Ass'n,  110 

X.  C.  377,   14  S.  E.  923,  28  Am.  St. 

Rep.  693,  15  L.  R.  A.  668,  p.  303. 
Fonda  v.  Jones,  42  Miss.   792,  2  Am. 

Rep.  669,  p.  748. 
Fontain  v.  Ravenel,  17  How.  369,  384, 

p.  143. 
Foose  V.  Whitmore,  82  N.  Y.  405,  37 

Am.  Rep.  572,  p.  572. 
Forbes  v.  Moffatt,  18  Ves.  384,  p.  382. 


Ford   V.    Ford,    70    Wis.    19,    33   X.   W, 

188,  5  Am.  St.  Rep.  117,  p.  679. 
Ford  V.  Foster,  L.  R.  7  Ch.  611,  Lewis 

144,  p.  840. 
Ford   V.   Hill,   92   Wis.   188,  66  X.   W. 

115,  53  Am.   St.  Rep.   902,  p.  855. 
Ford  V.  Knapp,  102  X.  Y.  140,  55  Am. 

Rep.  782,  6  X.  E.  283,  p.  869. 
Ford    V.    Unity    Church    Society,    120 

:\Io.   498,  25   S.   W.   394,  41   Am.   St. 

Rep.   711,  23   L.   R.   A.   561,  p.   298, 

369. 
Forman  v.   Brewer,  62  X.  J.  Eq.  748, 

48  Atl.    1012,  90  Am.   St.  Rep.   475^ 

p.  314. 
Fornanses  v.  Melsing,  106  Fed.  775,  784, 

45  C.   C.  A.  615,  p.  804. 
Forster  v.  Hale,  3  Ves.  696,  p.  567. 
Fortescue   v.    Barnett,   3    ilylne   &   K. 

36,  Ames  Trusts   136,  p.  559,  562. 
Forth    V.    Duke    of    Xorfolk,    4    :Madd. 

503,  p.   551. 
Forthman   v.    Deters,   206    111.    159,    69 

N.   E.   97,   99  Am.   St.   Rep.    145,   p. 

379,   383,   384,   385,   893. 
Fosdick  V.  Schall,  99  U.  S.  235,  25  L. 

F:d.   339,  Shep.  339,  p.   810. 
Foster  V.  Deacon,  3  Madd.  394,  2  Keen- 
er   341,    p.    163. 
Fothergill   v.   Rowland,   L.    R.    17    Eq. 

132,    141,    1    Ames    FZq.    Jur.    Ill,    2 

Scott    111,    2    Keener    261,    H.    &    B. 

599,    p.    820,    883. 
Fouch  V.   Wilson,   60  Ind.   64,  28  Am. 

Rep.  651,  p.  748. 
Fourth   Street   Xat.   Bank  v.   Y'ardlcy, 

161   U.   S.   634,    17   Sup.   Ct.   439,   41 

L.  ed.  855,  p.   766. 
Fouse  V.  Gilfillan,  45  W.  Va.  213,  32 

S.   E.    178,    185,  p.   281. 
Foveaux,  In  re,  [1895]  2  Ch.  501,  507, 

p.  576,  577. 
Fowler  v.  Black,  136  111.  363,  26  X.  E. 

596,  2  Ames  Eq.  Jur.  293,  3  Keener 
100,  2  Scott  555,  p.  418. 
Fowler    v.    Jarvis-Conklin,    etc.     Co., 

63  Fed.  888,  66  Fed.  14,  p.  808. 
Fox  V.  Gibbs,  86  Me.  87,  29  Atl.  940, 

p.  579. 
Fox    V.    Mackreth,    2    Brown    f'h.    400, 
420,   2   Cox,   320.   322,    1    Lead.   Cas. 
Eq.    188,   212,   237,   2   Dick.    689,   p. 
466. 


TABLE    OF    CASKS    CITED. 


951 


Fox   V.    Scard,    33    Beav.   327,   p.   222. 
Fralith  v.  Despar.   1«)5  Pa.  St.  24,  30 

Atl.  521,  2  Keener  304,  p.  820. 
Frame  v.  Dawson,  14  Ves.  386,  1  Ames 

Eq.  Jur.  283,  2  Scott  202,  2  Keener 

332,  p.  902. 
Frame  v.  Sliter,  29  Oreg.  121,  45  Pac. 

290,  54  Am.  St.  Rep.  781,  34  L.  R. 

A.   690,  p.   747. 
Francis  v.  Wigzell,   1  Madd.  258,  2(i4. 

p.  1)51. 
Francisco    v.    Smith,    143    N.    Y.    488, 

38  X.  E.  980,  1  Ames  Eq.  Jur.  186, 

p.  820. 
Franklin  Sav,  Bank  v.  Taylor,  53  Fed. 

854,  4  C.  C.  A.  55,  9  U.  S.  App.  406, 

p.  361. 
Franklin  Tel.  Co.  v.  Harrison,   145  U. 

S.   459,    12   Sup.   Ct.   900,   36   L.   ed. 

776,  2  Keener  1055,  p.  895. 
Franklyn  v.  Thomas,  3  Mer.  225,  234, 

p.  849. 
Frederick    v.    Emig,    186    111.    319,    59 

N.  E.  883,  78  Am.   St.  Rep.  283,   p. 

344. 
Frederick  v.  Frederick,  1  P.  Wms.  710. 

1  Scott  311,  p.  156,  157. 

Free  v.   Buckingham,   57   N.   H.   95,   3 

Keener  478,  p.  474. 
Freeman  v.  Cooke,  2  Ex.  654,  661,  p. 

396. 
Freeman  v.  Eacho,  79  Va.  43,  p.  253. 
Freeman  v.   Freeman,   43   N.   Y.   34,   3 

Am.  Rep.  657,  1  Ames  Eq.  Jur.  300, 

2  Scott  205,  2  Keener  654,  p.  904. 
Freeman   v.    Hartman,    45    111.    57,    92 

Am.  Dec.   193,  p.  645. 
Freeman    v.    Pope,    L.    R.    5    Ch.    538, 

544,  p.  530. 
Freer  v.  Freer,  22  Ch.  Div.  622,  p.  659. 
Freeson  v.  Bissell,  63  N.  Y.  168,   170. 

p.  754. 
French  v.  French,  6  De  Gex,  M.  &  G. 

95,   p.   531. 
French  v.  Macale,  2  Dru.  &  ^^'ar.  2(*)9. 

274,  p.  217,  222. 
Frere  v.  Green,  19  Ves.  320,  p.  85. 
Freshfield's    Trusts,    In    re,    L.    R.    11 

Ch.  Div.  198,  200,  202,  p.  325. 
Frey  v.   Willoughhy,   63   Fed.    865.   27 

U.  S.  App.  417,  11  C.  C.  A.  463.  p. 

868. 


Frick  V.  Christian  Co.,  1   Fed.  250,  p. 

439. 
Friend  v.  Lamb,  155  P.  St.  529,  34  Am. 

St.  Rep.  672,  25  Atl.  577,  1  Ames  Eq. 

Jur.  408,  2  Keener  1060,  2  Scott  306, 

p.  894. 
Frink  v.  Adams,  30  N.  J.  Eq.  485.  p. 

372. 
Frost   V.    Beekman,    1    Johns.    Cli.    288, 

298,  1  Scott  531,  p.  294,  302.  365. 
Frost  V.  ^Yolf,   77  Tex.  455.   14  S.   W. 

440,    19   Am.    St.   Rep.    761.    p.    174, 
'     318. 
Frost  V.  Yonkers  Sav.  Bank,  70  N.  Y. 

553,  26  Am.  Rep.  627,  p.  721. 
Frue  V.  Loring,  120  Mass.  501,  p.  590. 
Fry  V.  Lane,  L.  R.  40  Ch.  Div.  315.  p. 

511. 
Fry  V.  Porter,  1  Cas.  Ch.   138.  1  :\Iod. 

300,  307,    (22  Car.  II)    1   Scott   145, 

p.  30. 
Fuller   V.    Percival,    126   Mass.    381.   2 

Ames  Eq.  Jur.  Ill,  3  Keener  483,  p. 

474.  861. 
Fulhvood  V.  Fulhvood,  L.  R.  9  Ch.  Div. 

176,  p.  401. 
Fulton  V.  Loftis,  63  X.  C.  393.  1   Scott 

486,  p.  509. 
Furnald  v.  Glenn,  64  Fed.  49,  12  C.  C. 

A.  27,  26  U.  S.  App.  202,  p.  851. 

G. 

Gaffoe,  In  re,   1   Macn.  &  G.  541,  545, 

1    Lead.   Cas.   Eq.   713,   p.   644. 
Gaines  v.  Green  Pond,  etc.  Co..  33   X. 

J.    Eq.    603,    1    Keener   494.    p.    S27. 
Gaines  v.  Miller,  111  U.  S.  395.  4  Sup. 

Ct.  426,  p.  65. 
Gaines  v.   Xew  Orleans,  6  Wall.   642, 

716,  p.  312. 
Galbraith  v.  Lunsford,  87  Tenn.  89.  9 

S.  W.  365,  1  L.  R.  A.  522.  H.  &  B. 

117.  p.  391,  392.  393,  399. 
Gale  V.  Lindo,  1  Vern.  475,  2  Scott  732, 

]).  487. 
Gallagher  v.   Gallagher,  31   W.  Va.  9, 

5  S.  E.  297,  2  Keener  696.  p.   901, 

902. 
Galland  v.   Jackman,  26   Cal.    79,   87, 

85  Am.  Dee.  172,  p.  367. 
Galusha  v.   Wendt,   114  Iowa,  597,  87 

X.  W.  .-)12.  p.  65. 
Galveston,  H.  &  S.  A.  R'y  Co.  v.  Dowe, 

70   Tex.   5,   7    S.   W.   368,   p.    109. 


952 


TABLK    OF    CASES    CITED. 


Galway  v.  :\Ialcho\v,  7  Xebr.  285,  289, 

p.  341. 
Galway  v.  Met.  El.  K.  Co.,   128  X.  Y. 
132,  28  N.  E.  479,  13  L.  R.  A.  788, 

1  Ames  Eq.  Jur.  601,  1  Keener  822, 

p.   198,  824,  825,  833. 
Candy    v.    Fortner.    119    Ala.    303,    24 

South.  425,  p.  550. 
Gannett    v.    Albee,    103    Mass.    372,    1 

Ames  Eq.  Jur.  321,  p.  897. 
Carber  v.  Gianella,  98  Cal.  527,  529,  33 

Pac.   458,   p.   297. 
Carcelon,  In  re,  104  Cal.  570,  584,  33 

Paf.  414,  43  Am.  St.  Pvep.   134,  953, 

32  L.  K.  A.  595,  1  Scott  77,  p.  511, 

709. 
Gardner  v.  Blane,  1  Hare,  381,  p.  803. 
(iardner  V.  Mobile,  etc.  R.  Co.,  102  Ala. 

035,  48  Am.   St.  Rep.  84,   15  South. 

271.  p.  856. 
Ciardner    v.    Newburgh,    2    Johns.    Ch. 

162,    165,   7   Am.   Dec.   526,    1    Scott 

740,  1   Keener  654,  H.  &  B.  767,  p. 

824.  831,  834. 
C;ardner  v.  Ogden,  22  X.  Y.  327,  332- 

339.   78   Am.   Dee.    192,   1   Ames   Eq. 

Jur.  6,  p.  208. 
Gardner  v.  Parker,  3  .Madd.   184,   185, 

J).  6()6. 
Garner  v.  Reis,  25  Minn.  475,  3  Keener 

920,  p.  918. 
Garrard  v.  Frankel,  30  Beav.  445,  451, 

3  Keener  261,  p.  4.30,  431,  438,  859.       • 
Carson   v.   Green,   1    Johns.   Ch.   308,    1 

Scott    70,   p.   745.   748.  i 

(iaskell  V.  Gaskell.  6  Sim.  643,  p.  867.  [ 
(Jason  V.  Wordswortli,  2   \'es.  Sr.  336,  j 

p.  85. 
(iaston  V.  Drake,  14  Xev.   175,  33  Am. 

Rep.  548,  p.  494.  \ 

Gates   V.    Johnstown    Lumber   Co.    172 

:\Iass.  495,  52  X\  E.  736,  1  Ames  Eq. 

Jur.    520,    p.    842. 
Gates  V.  Salmon,  35  Cal.  576,  95  Am. 

Dec.  139,  p.  868. 
Gates   Iron    Works   v.    Cohen,    7    Colo. 

App.  341,  43  Pac.  667,  p.  317. 
Gause  V.  Perkins.  3  Jones  Eq.  177,  69 

Am.  Dec.   728,  p.  843. 
Gavin  v.  Curtin.  171  111.  640.  49  X'.  E. 

523.   40  L.   R.   A.   776,   p.   202. 
Gay  V.  Parpart.  106  U.  S.  679,  690,  1 

Sup.   Ct.   456,   p.   206. 


Gay   Mfg.   Co.   v.   Camp,   05   Fed.   794, 

25  U.  S.  App.  134,   13  C.  C.  A.   137. 

68   Fed.   67,  25    C.   S.   App.   376,   15 

C.    C.    A.    226,    p.    220. 
Gay's    Estate,    138    Cal.    552,    71    Pac. 

707,   94   Am.   St.   Rep.    70,   p.   575. 
Gebb   V.    Rose,   40   ild.    387,    3    Keener 

427,    p.    416.    859. 
Gee  V.   Pritcliard.  2  Swanst.  402,  413, 

414,  1  Keener  59,  1  Scott  149,  Lewis 

44,  p.  30,  839. 
Gee   V.    Spencer,    1    Vern.    32,   2    Scott 

568,  p.  421. 
Geishaker   v.    Pancoast,   57    X.   J.   Eq. 

60,  40  Atl.  200,  p.  288. 
Gent  V.  Harrison,  Johns.  517,  1  Keener 

510,  p.  829. 
George  v.  Braddock,  45  X.  J.  Eq.  757. 

18  Atl.  881,  14  Am.  St.  Rep.  754,  0 

L.  R.   A.   511,  p.  577. 
Gerdine  v.  Menage,  41    ]\Iinn.   417,   43 

X.   \y.  91,  2  Ames  Eq.  Jur.  286,  p. 

424. 
Gest    V.    Packwood,    34    Fed.    368,    p. 

361. 
Gething  v.  Keighley,  L.  R.  9  Ch.  Div. 

547,  p.   439. 
Getty    V.    Binsse,    49    X.    Y.    385,    388, 

389,   10  Am.  Rep.  379,  p.   192. 
Ghormley   v.    Smith,    139   Pa.   St.   584, 

23    Am.    St.    Rep.    215,    21    Atl.    135, 

11   L.  R.  A.  505,  p.   551. 
(iibbs   V.    Marsh,   2   Met.    243,   251,    p. 

411. 
Gibler    v.    Triiiil>h'.     14    Oliio,    323,    p. 

366. 
Gibson    v.    Barber,    100   X.    C.    192,    0 

S.   E.   766,  p.   515. 
Gibson  v.  Crehore.  3  Pick.  475.  5  Pick. 

146.  Kirch.   698,  p.  721,  723.  865. 
Gibson  V.  -Teyes.  fi  Ves.  266.  271.  273. 

277.  p.   519. 
Giddings    v.    Baker.    80    Tex.    308.    16 

S.  W.  33.  p.  4.52. 
Giddings  v.   Seward.   16  X'.  Y.  365.  p. 

660. 
Gifford    V.    Corrigan.    117   X\   Y.    257. 

22  X.  E.   756,   15  Am.   St.  Rep.   508. 

6   L.   R.   A.   610.   p.   712. 
Gilbert  v.  Diekerson,  7  Wend.  449,  22 

Am.  Dec.   592.  p.  870. 
Gilbert  v.  Showerman,  23  Mich.  448,  1 

Scott  756,  p.  831. 


TABLE   OF    CASKS    CITED. 


953 


Gilchrist  v.  Helena  H.  S.  &  S.  R.  Co., 

oS  Fed.  708,  710,  711,  712,  p.  757. 
Giles  V.  Austin,  38  N.  Y.  Sup.  Ct.  215, 

62  N.  Y.  486,  p.  214. 
Giles    V.    Perkins,    9    East,    12,    Ames 

Trusts,  9,  p.  569. 
Gillam   v.    Taylor,   L.    R.    16   Eq.    581. 

584,   p.   577. 
(lillespie   v.    Holland,   40   Ark.   28,   48 

Am.  Rep.  1,  p.  522. 
Gillespie   v.   Moon,   2   Jolins.    Ch.    585. 

7    Am.    Dec.    559,    1    Scott    437,    p. 

436. 
Gillett  V.   Wiley,    126   111.   310,   9   Am. 

St.  Rep.  587,  19  X.  E.  287,  p.  521. 
Gilliam    v.    Chancellor,    43    Miss.    437. 

448,    5    Am.    Rep.    498,    p.    97,    243, 

250. 
Gilliam   v.  McCormack,   85   Tenn.   597. 

4  S.  W.  521,  p.  909. 
Gillis  V.  Hall,  7  Phila.  422,  2  Brewst. 

342,  p.  219. 
Gihnan  v.   Brown,   1   ]Mason,   191,  210, 

Fed.  Cas.  No.  5,441,  p.  753. 
Gihnan  v.  Ketchani,  84  Wis.  60,  36  Am. 

St.   Rep.   899,   54   N.   W.   395,   23   L. 

R.  A.   .52,  p.  811. 
Gilmer  v.  Stone,  120  U.  S.  586,  7  Sup. 

Ct.   Rep.  689,  p.  568. 
Girard    v.    Flutterer,    84    Ala.    323.    4 

South.  292,  p.  607. 
Gladding  v.  St.  Matthew's  Church.   (R. 

T.)   57  Atl.  860,  p.  581. 
(Mass  V.  Hulbert,  102  Mass.  24,  28.  41. 

43,  3  Am.  Rep.  418,  H.  &  B.  254.  3 

Keener  327,  Shep.  264,  2  Scott  619. 

p.   434,  435. 
Glegg  V.  Rees,  L.  R.  7  Ch.  71,  p.  555. 
Glen  V.  Fisher,  6  Johns.  Ch.  33,  .^6,  10 

Am.  Dec.  310,  p.  647. 
Glcnoall  V.  Frazer,  2  Hare,  99  p.  32. 
Globe  :\rut.  L.  Ins.  Co.  v.  Reals,  79  N. 

Y.  202,  3  Keener  485,  p.  474,  861. 
Clock  V.  Howard  &  Wilson  Colony  Co., 

123   Cal.   1,  69  Am.  St.  Rep.   17.  55 

Pac.  713,  43  L.  R.  A.  199,  p.  899. 
Gloucester  Isinglass,  etc.  Co.  v.  Russia 

C.  Co..  154  Mass.  92.  26  Am.  St.  Rep. 

214.  27  N.  E.  1005,  12  L.  R.  A.  563, 

2  Keener  51,  p.  882. 
Glyn   V.    Duesbnry,    11    Sim.    139,    147, 

148,  p.  792. 


Godfrey  v.  Harben,  L.  R.   13  Ch.  Div. 

216,   p.    651. 
Godfrey  v.  Watson,  3  Atk.  517,  Kirch. 

563,  p.   719. 
Godfrey  v.  White,  60  Mich.  443,  1  Am. 

St.  Rep.  537,  27  N.  W.  593,  ]).  870. 
Goff   V.    Gott,    5    Sneed    (Tenn.).    562, 

2  Ames  Cas.  Eq.  Jur.  281,  p.  424. 
Golden's    Appeal,    110    Pa.    St.    581,    1 

Atl.  660,  p.  556. 
Goldman  v.   Rosenberg,   116   X.   V.   78, 

15  Am.   St.  Rep.  410,  22  X.  E.   397, 

2   Keener   431,   p.    163. 
Goodale  v.   Mooney,   60  X.  H.  528.   49 

Am.  Rep.  334,  p.  579. 
Goodbar    v.    Daniel,    88    Ala.    583,    7 

South.    2.52,    2.54,    16    Am.    St.    Rep. 

76,  p.  303,  305. 
Goodburn  v.   Stevens,   1   :Md.   Ch.   420, 

p.    865. 
Goodman  v.   Wliitcomb,   1   .Jacob  &  W. 

589.  p.  804. 
Goodman   v.   Winter,    64   Ala.   410,   38 

Am.    Rep.    13,   p.    782. 
(ioodrich    v.    Lathrop,    94    Cal.    56.    28 

Am.    St.    Rep.    91,    29    Pac.    329.    2 

Ames   Eq.   Jur.    187,   p.    470,   471. 
Goodson  V.  Ellison,  3  Russ.  583,  Ames 

Trusts  451,  p.  610. 
Goodson    V.    Richardson,    L.    R.    9    Ch. 

221,  1  Ames  Eq.  Jur.  502,  1  Keener 

615,  p.  842,  843. 

Goodwin  v.  Richardson,   11   ^lass.  469, 

p.  190. 
(Gordon    v.    Graham,   2    Eq.    Cas.    Abr. 

598.  pi.   16,  p.  704. 
Gordon   v.   Rixej%  76  Va.   694,  ]>.   751. 
Gormly  v.  Gormly,  130  Pa.  St.  467,  18 

Atl.  727,  3  Keener  184.  p.  425. 
Gorringe    v.    Reed,    23    Utah,    120,    63 

Pac.    902,   90   Am.    St.   Rep.    692.   p. 

497.  502. 
Gotthelf  V.  Stranahan,  138  X.  Y.  345, 

34  X.  E.  286,  20  L.  R.  A.  455,  H.  & 

B.  706.  p.  894. 
Gotzian.  In  re,  34  Minn.   159,  57   Am. 

Rep.  43,  24  X.  W.  920,  p.  234. 
Gotzian   v.    Shakman,   89   Wis.    52,   46 

Am.  St.  Rep.  820,  61  X^.  W.  304,  p. 

909. 
Gough    V.    Pratt,    9    Md.    526,    p.    ISl, 


954 


TABLE    OF    CASES    CITED, 


Gould  V.   Emerson,   160  ]\[ass.   438.   35 

N.  E.   1065,  39  Am.  St.  Rep.  501,  3 

Keener   324,   p.   437. 
Gould  V.   Lynde,   114  Mass.  366.  H.   & 

B.  446,  p.  589. 
Gould  V.   Murch,  70  Me.   288,  35   Am. 

Rep.    325,    2    Keener    426,    H.    &    B. 

661,  p.  163. 
Gower  v.  Andrew,  59  Cal.  119,  43  Am. 

Rep.   242,   p.   816. 
Graff  V.   Bonnett.  31   X.  Y.   9,  88  Am. 

Dec.  236,  p.  552. 
GraflFam  v.   Burgess,   117  U.   S.   184,   6 

Sup.  Ct.   686,  3  Keener  512,  p.   485. 
Graoj?    V.    :\rartin,    12    Allen,    498.    90 

Am.  Dec.   164,  p.   528. 
Graiiam  v.   MeCampbell.  Meigs,  52,  33 

Am.  Dec   126,   1  Ames  Eq.  .Tur.  205, 

p.    741,    754. 
Graliam  v.   Moffett,   119  Mich.   303.  75 

Am.   St.  Rep.  393,  78  N.  W.   132,  p. 

747. 
Graliam  v.  Thompson,  55  Ark.  296,   18 

S.    W.    58,   29   Am.    St.    Rep.    40.    p. 

396. 
Graham   v.    Wintridge,    (Md.)    58   Atl. 

3(),  p.  547. 
Graham    Paper    Co.   v.    Pembroke,    124 

Cal.    117,   56    Pac.    627,    71    Am.    St. 

Rep.    26.    44    L.    R.    A.    312,    6.32,    p. 

325,    .326. 
Grand  Cliutc  v.  Winegar,  15  Wall.  373, 

21   L.  ed.   170.  2  Ames  Eq.  .Tur.   116, 

p.  66,  143,  473.  853,  SC)]. 
Grand   Rapids,   etc.    Co.    v.   Haney,   92 

Mich.   558,  31    Am.   St.   Rep.   Oil.   52 

N.  W.  lOOn.  16  L.  R.  A.  721,  p.  854. 
Grant  v.   Saunders,   121    Iowa.   80.   100 

Am.  St.  Rep.  310,  95  X.  W.  411,  p. 

579. 
Grantham  v.  Hawley,  Hob.  132,  Kirch. 

40,  p.  740. 
Gratz   V.   Land   &   River   Imp.    Co..   82 

Fed.  381.  27  C.  C.  A.  305,  40  L.  R. 

A.  393,  p.  367. 
Gray   v.   Building   Trades    Council,    91 

Minn.    171,    103    Am.    St.    Rep.    477, 

97  X.  W.  663.  63  L.  R.  A.  753.  Lewis 

294,  p.  847. 
Gray  v.   H.  INI.  Loud  &  Sons'  Lumber 

Co.,  128  Mich.  427.  87  X.  W.  376,  54 

L.  R.  A.  731,  p.  728. 


Grabill  v.  Brugh,  89  Va.  895,  37  .\m. 

St.  Rep.  894,   17   S.  E.  558,  H.  &  B. 

677,  p.   321,  892,  906. 
Graydon  v.  Graydon,  23  X.  J.  Eq.  229. 

p.   488. 
Great   Falls  Co.  v.  Worster,  23  X.  H. 

462,    1    Scott  241,   p.  208. 
Great  Western  R'y  v.  Oxford  etc.  R'y, 

3    De    Gex,    M.    &    G.    341,    359,    p. 

197. 
Greaves  v.   (iouge,  69  X.   Y.   154,   157. 

p.  631. 
Greaves   v.   Tofield,  L.   R.    14   Ch.   Div. 

563.   577,    1    Scott  235,   p.   212,   299, 

348. 
Greedup  v.   Franklin   County,   30   Ark. 

101,  109,  p.  116,  125. 
Greeley  v.   De   Cottes,   24    Fla.   475.   5 

South.  239,  p.  439. 
Green  v.  Arnold,  1 1  R.  I.  364,  23  Am. 

Rep.  466.  p.  868. 
Green  v.  Coast  Line  R.  Co.,  97  Ga.  15, 

54  Am.  gt.  Rep.  379,  25  S.   E.  814, 

33  L.  R.  A.  806,  p.  811. 
Green  V.  Givan.  33  X.  Y.  343.  p.  317. 
Green   v.    Hart,    1    Johns.    580,   Kirch. 

622. 
Green  v.  ISIorris,  12  X.  J.  Eq.  165,  170, 

H.  &  B.   193,  3  Keener  25,  p.  421. 
Green   V.    Price,    13   Mees.    &    W.    695, 

701,    16    ]\rees.    &    W.    346,    3.54,    ],. 

220,  221. 
Green  v.  Rick,  121  Pa.  St.   130,  6  Am. 

St.    Rep.    670,    760,    15    Atl.    497,    2 

L.  R.  A.  48,  p.  286. 
Green   v.   Smith.    1    Atk.    572,    1   Ames 

Eq.  Jur.  193,  1  Scott  313,  p.  162,  677. 

680. 
Green  V.  Stewart,  45  X.  Y.  Supp.  982. 

19  App.  Div.  201,  p.  99. 
Green  v.   Stone,  54  X.   J.   Eq.   387.   55 

Am.   St.   Rep.   577,   34   Atl.   1099,   p. 

713. 
Green  v.  Weaver,  1  Sim.  404,  427,  432. 

p.  81. 
Green  v.  Wilkie,  98  Iowa,  74,  66  X.  W. 

1046,  60  Am.  St.  Rep.  184,  36  L.  R. 

A.  434,  p.  .507. 
Greene  v.  Keene.  14  R.  T.  388,  51  Am. 

Rep.  400,  p.  910. 
Greene   v.    IMumford,    4   R.    I.    313,    p. 

793. 


TABLE    OF    CASKS    CITED. 


955 


Greene  v.  Warnick,  G4  N.  Y.  220.  224. 

225,  p.  340. 
Greenfield's  Estate,  14  Pa.  St.  489,  r)0(i, 

507.  p.  519. 
Greenhill  v.  Greenhill,  2  Vern.  079.   1 

Scott  595,  p.  554. 
Greenlee    v.    Gaines,    13    Ala.    198.    48 

Am.  Dec.  49,  p.  852. 
Greenway,  Ex  parte,   6  Ves.   812,  813, 

I  Scott  413,  p.  407,  408. 
Greenwood   v.    Fenn,    136    111.    146.    26 

N.   E.   487,   3   Keener  732,   p.   461. 
Gregg   V.    Landis,    19    N.    J.    Eq.    356. 

8.50,  21  X.  J.  Eq.  494,  507,  511,  514. 

p.  226. 
Gregg  V.  Metropolitan  Trust  Co.  197  I'. 

S.    183,    25    Sup.    Ct.    415,    p.    810. 
Gregory    v.    Edmondson.    39    Cli.    Div. 

253,  Ames  Trusts  95,  p.  571. 
Gregory  v.  Tingley,  18  Neb.  319,  25  N. 

-W.  88.  p.  881. 
Gresham  v.  Ware,  79  Ala.  132,  p.  382. 
Gresley    v.    ]\Iousely.    4    De    Gex    &     T. 

78,  90.  91,  92.  93,  3  De  Gex,  F.  &  .1. 

4.33.  p.  .520,  535. 
Gribben  v.  Maxwell,  34  Kan.  8.  7  Pac. 

584,  55  Am.  Rep.  233,  p.  505. 
Grider  v.  American  Freehold  L.   &  ]\I. 

Co..  99  Ala.  281,   12   South.   775.   42 

Am.  St.  Pvep.  58,  p.  180. 
Griffin  v.  Fries,  23  Fla.   173,  2  South. 

266.  11  Am.  St..  Rep.  351,  p.  408. 
Griffith  V.  Hilliard,  64  Vt.  643,  25  Atl. 

427,  1  Keener  636,  H.  &  B.  762,  Shep. 

316,  p.  843,  844. 
Griffith  V.  Ricketts,   7  Hare,  299,  307, 

311,  p.  680. 
Griffith   V.   Tower   Pub.    Co.,    [1897]    1 

Ch.  21,  p.   761. 
Griggs  V.  Clark,  23  Cal.  427.  p.  673. 
Grissell  v.   Swinhoe,  L.   R.   7   Eq.   291. 

295,  p.  234. 
Grissler   v.    Powers,    81    N.    Y.    57,    37 

Am.  Rep.  475,  p.  330.  399,  402. 
Griswold  v.   Haven.   25   X.   Y.   595.   82 

Am.    Dec.    380.    p.    391. 
Griswold    v.    Hazard.    141    T"'.    S.    260. 

II  Sup.  Ct.  972,  999.  2  Ames  Eq.  Jur. 
259,  H.  &  B.  197.  3  Keener  107.  p. 
419. 

GrofT  V.  State  Bank,  50  Minn.  234.  52 
N.  W.  651,  36  Am.  St.  Rep.  640.  p. 
277. 


Grove  v.  Hodges,  55  Pa.  St.  .504.  519, 

p.  445. 
Grover  v.  Grover,  24  Pick.  261,  35  Am. 

Dec.   319,  Ames  Trusts   159,  p.   (i67. 
Grover  v.  Wakeman,  11  Wend.  187,  201, 

203,   25  Am.   Dec.   624.   4   Paige,   23. 

p.    556. 
Grubb  V.  Sharkey,  90  Va.  831.  20  S.  E. 

784,   H.   &   B.   736,   p.    100. 
Grumley    v.    Webb,    44    Mo.    444,    100 

Am.  Dec.  304,  p.  517. 
(h-us    V.    Evans,    1    Dak.    387,    1    Scott 

546,  p.  264. 
Guarantee  Trust,  etc.  Co.  v.  Delta,  etc. 

Co.,   104  Fed.  5,    (C.  C.  A.),  p.  207. 
Guice  V.  Barr,  130  Ala.  570,  30  South. 

563,  p.  866. 
Guidot  V.   Guidot,   3   Atk.   254,   256.    1 

Keener  949,  1  Scott  600.  p.  107,  554. 
Guion  V.   Knapp,   6   Paige.   35,   42,   2!t 

Am.  Dec.  741,  p.   729. 
Gun  V.  McCarthy,  L.  R..  Ir.  13  Ch.  1). 

304,  2  Ames  Eq.  ,Tur.  238,  p.  438. 
Gunster   v.    Scr^nton    Ilium.,   H.    &    P. 

Co.,    181    Pa.    St.    327.   37    Atl.    550. 

59  Am.  St.  Rep.  650,  p.  308. 
G\\ynne  v.  Heaton.   1   Brown  Ch.   1.  9, 

3  Keener  505,  p.  483,  512. 


H. 


Hacker    v.    White,    22    Wash.    415.    60 

Pac.    1114,   79   Am.    St.   Rep.   945.   p. 

343. 
Hadden   v.    Dandy,   51    N.    J.    Eq.    154, 

32  L.  R.  A.  625,  26  Atl.  464,  p.  580. 
Hadden   v.   Spader.    20   Johns.    554.   }>. 

910. 
Hadley  v.  McDougall,  L.  R.  7  Ch.  312. 

p  82. 
Haffey  v.  Lynch,  143  N.  Y.  241,  38  N. 

E.  298,  H.  &  B.  703,  2  Keener  1213. 

p.  905. 
Ilafner  v.   City  of  St.   Louis,   161    Mo. 

34,  61  S.  W.  632,  p.  550. 
Hagar    v.    Buck,    44    Vt.    285.    290.    8 

Am.   Rep.   368.  p.   215,  225. 
Haggavty  v.  Pitman,   1  Paige,  298.   19 

Am.  Dec.  434,  p.  805. 
Hahn  v.  Concordia  Soc.  42  Md.  460.  p. 

222. 
Haigh  V.  Jaggar,  2  Coll.  231.   1   Ames 

Eq.  Jur.  494,  1  Keener  569,  p.  842. 


956 


TABLE    OF    CASKS    CITED. 


Kale   V.   Allinson,    102    Fed.    790,    791, 

792,   188  U.  S.  56,  23   Sup.  Ct.  244, 

250-254,  p.  122. 
Hale  V.   Hale,    146   111.   227,   33   N.   E. 

858,  20  L.  R.  A.  247,  p.  784. 
Hale   V.    Stery,    7    Colo.    App.    165,    42 

Pac.  598,  p.  508. 
Hall  V.  Crowley,  5  Allen,  304,  81  Am. 

Deo.  745,  p.  221. 
Hall    V.    First    Nat.    Bank,    173    Mass. 

16,   53   N.   E.    154,  73   Am.   St.   Rep. 

255,   44   L.   R.    A.   319,   p.   427. 
Hall  V.  Hall,  37  L.  J.  P.  &  M.  40.  L.  R. 

1   P.   &  M.   481,  p.   509. 
Hall  V.  Hardy,  3  P.  Wms.  187,  1  Ames 

Eq.   Jur.    65,   2    Scott   54,   2    Keener 

109,  p.  884. 
Hall  V.  Otterson.  52  X.  J.  Eq.  522,  28 

Atl.  907,  3  Keener  401,  2  Seott  635, 

p.   198,  421,  523. 
Hall   V.   Potter,   Show.   Pari,   C.    76,   3 

Lev.   411,  2   Scott  663,  p.  487. 
Hall   V.   Smith,   5   How.   96,    12   L.   ed. 

66,  p.   914. 
Hall  V.  Vernon,  47  W.  Va.  295,  81  Am. 

St.   Rep.   791,  34   S.  E.   764,  p.   868. 
Hall  V.   Warren,  9  Ves.   605,  H.   &  B. 

575,  p.  549. 
Hall   V.   Wescott,   15  R.   I.  373,   5  Atl. 

629,  Kirch.   598,  p.   710. 
Hall    V.    Wheeler,    37    ]Minn.    522.    35 

X.    W.    377,    2   Ames   Eq.    Jur.    288, 

3  Keener  99,  p.  425. 
Hall  V.  \A  hittier,  10  R.  I.  530.  2  Scott 

323,  p.  898. 
Hallett  V.  Wylie,   3  Johns.   44,   3   Am. 

Dec.  457,  p.  406. 
Hallett's    Estate,    In    re,    13    Ch.    Div. 

696,  p.  32,  598. 
Hallett's  Trusts,  In  re,  18  Weekly  Rep. 

416,  Ames  Trusts  221,  p.  625. 
Halsey    v.    (irant,    13    Ves.    73,    77,    2 

Scott  379,  p.   905. 
Hamaker  v.   Schroers,  49   Mo.   406,   p. 

221. 
Hamar  v.  Medsker,  60  Ind.  413.  2  Ames 

Eq.  Jur.  228,  p.  859,  860. 
Hamer  v.  Sidway,  124  N.  Y,  538,  550. 

27   N.   E.   256,   12   L.   R.  A.   463.   21 

Am.  St.  Rep.  693,  Ames  Trusts,  33, 

p.   568,   569. 


Hamilton  v.   Cummings,   1   Johns.   Ch. 

517,    1    Scott   104,   1    Keener  317,   p. 

853,  877. 
Hamilton  v.  Hamilton,  2  Rich.  Eq.  355, 

46  Am.  Dec.  58,  p.  492. 
Hamilton    v.    Harvey,    121    111.    469,    2 

Am.  St.  Rep.   118,  p.  892. 
Hamilton   v.    JNlarks,    5    De   Gex    &    S. 

038,   1  Keener  280,  p.  791,  797,  799. 
Hamilton   v.    Steele,    22    W.    \a.    34S, 

p.  591. 
Hamilton    v.    Traber,    78    Md.    26.    44 

Am.    St.    Rep.    258,   27    Atl.    229.    p. 
,   785,  780. 
Hamilton   v,    Worsefold,    10   Ves.    291, 

1   Scott  680,   p.   842. 
Hamilton-Brown    Shoe    Co.    v.    Saxey, 

131   Mo.  212,  52  Am.   St.  Rep.   622, 

32  S.  W\   1106,  H.  &  B.  779,  Lewis 

276,  p.   826,  846. 
Hamilton's    etc.    Iron    Works,    In    "re, 

L.  R.   12  Ch.  Div.   707,   710.   711.  p. 

341. 
Hammond   v.   ilessenger,    9    Sim.    327, 

332,  Ames  Trusts  59,  p.  759,  762. 
Hammond  v.   Pennock,   61    X.   Y.    145, 

151,  152,  3  Keener  688,  p.  470.  471. 
Hampsliire  Land   Co.,  In  re,   [1896]   2 

Ch.  743,  p.  303. 
Hampson  v.  Edelen,  2   Harr.  &  J.   64, 

66,  3  Am.  Dec.  530,  2  Scott  708,  p. 

342. 
Hancock    v.    Carlton,    6    Gray,    39,    p. 

225. 
Handley  v.  Jackson,  31   Oreg.   552,  65 

Am.    St.   Rep.   839,   50   Pac.   915,   p. 

855. 
Haney  v.  Legg,  129  Ala.  619,  30  South. 

38.    87    Am.    St.    Rep.    81,    p.    599. 
Hansard  v.  Robinson,  7  Barn.  &  C.  90, 

1   Scott  412,  p.  408. 
Hanson    v.    Gardiner.    7    Ves.    305,     1 

Keener  544,  p.  842. 
Hanson    v.    Keating,    4    Hare,    1-6,    1 

Scott  274,  p.  170,  179. 
Harbison  v.   Lemon,   3   Blackf.   51,   23 

Am.  Dee.  376,  p.  508. 
Harding  v.  Glover,  18  Ves.  281.  p.  S04. 
Harding  v.   Glyn.   1    Atk.  469.  2  Lead. 

Cas.    Eq..   4th    Am.   ed..    1833.    1834- 

1848,    1857-1866,    Ames    Trusts    78, 

Shep.  212,  p.  565,  571. 


TABLE    OF    CASES    CITED. 


957 


Harding  v.  Handy,   11   Wheat.    103.   p. 

50(5. 
Hardy,    Ex    parte,    30    Beav.    206,    2 

Keener  327,  p.   080. 
Hardy    v.    Martin,    1    Brown    Ch.    419, 

note.  1   Cox,  26,  2  Scott  123,  p.  215, 

222. 
Harkness  v.   Fraser,   12   Fla.  336,   341, 

p.  514. 
Harland   v.   Trigg,    1    Brown    Ch.    142, 

Ames  Trusts  79,  p.  571. 
Harmood  v.  Oglander,  8  Vos.  106,  124, 

125,  p.   062. 
Harness    v.    Bulpitt,     (Cal.    App.)     81 

Pac.   1022,  1   Scott  738,  p.  830. 
Harney  v.   First  Nat.   Bank,  52   N.   J. 

Eq.  097,  29  Atl.  221,  p.  317.  341.  312. 
Harney  v.  Indianapolis  etc.  R.  R.  Co., 

32  Ind.  244,  p.  822. 
Harper  v.  Cla^-ton,  84  Md.  356,  35  Atl. 

1083,   35   L.   R.   A.   211,   57   Am.   St. 

Rep.  407,  p.  24,  910. 
Harper  v.  E^,  70  111.  581.  Kirch.  563, 

p.   721. 
Harrigan   v.    Gilchrist,    (Wis.)     99    N. 

W,  909,  933.  981,  p.  44,  202. 
Harrington  v.   Churchward,   6  Jur.   X. 

S.,    570,    1    Ames    Eq.    Jur.    457,    p. 

919. 

Harrington  v.  Erie  Co.  Savings  Bank, 
101  N.  Y.  257,  4  N.  E.  .346,  p. 
515. 

Harrington  v.  Grant.  54  Vt.  236,  p. 
502. 

Harrington   v.    Wheeler,   4   Ves.    086,   2 

Scott  331,  p.  900. 
Harris  v.   Clark.   3  X.   Y.   93,   51   Am. 

Dec.  352,  p.  668. 
Harris   v.    Fergusson,   16   Sim.   308,   p. 

189. 

Harris  v.  Kemble,  1  Sim.  111.  120^, 
122.  5  Bligh,  N.  S.,  730.  731.  p. 
447.  464. 

Harris  v.  Tyson,  24  Pa.  St.  347.  360, 
64   Am.   Dec.   661,   3   Keener  561,   p. 

466.  484. 

Harris  County  v.  Campbell,  68  Tex. 
22.    3    S.    W.    243,    2    Am.    St.    Rep. 

467,  p.  764. 

Harrison  v.  I'orth.  Prec.  Ch.  51,  1 
Scott  500,  p.  365. 


Harrison  v.  Guest,  0  De  Gex,  M.  &  G. 

424,  8   H.    L.   Cas.   481,  742,  p.  485, 

500. 
Harrison  v.  Xettleship,  2   Mylne  &  K. 

423,  p.  850. 
Harrison  v.   Wright,   100   Ind.  515,  50 

Am.  Rep.  805,  p.  764,  767. 
Harrop,   In    re,    3   Drew.    726,    734,   p. 

684. 
Hart  V.  Leete.   104  Mo.  315,   15  S.  W. 

976,  p.   647. 
Hart    V.    Leonard,    42    X.    J.    Eq.    416, 

7  Atl.  865,   1   Ames  Eq.  Jur.  549,   1 

Keener  856,  p.  834. 
Hart  V.  Sansom,  110  U.  S.  155,  3  Sup. 

Ct.  586,  1  Ames  Eq.  Jur.  11,  p.  206, 

207. 
Hart,   V.    Western    R.    R.    Co.,    13   Met. 

99,   40   Am.    Dec.    719,   p.    915. 
Hartford  Fire  Ins.  Co.  v.  Bonner  Mer- 
cantile Co.,  44  Fed.  151,  11  L.  R.  A. 

023,  p.   478. 
Hartley  v.  Ostler,  22  Beav.  449,  p.  245. 
Hartman  v.   Strickler,   82   Va.   225,   p. 

510. 
Harvard  College  v.  Amorv,  9  Pick.  446, 

H.  &  B.  520,  p.  615. 
Harvard    College   v.    Weld,    159   Mass. 

114,  34  X.  E.  175,  p.  608. 
Harvard  Unitarian  Soc.  v.   Tufts,   151 

Mass.  76,  23  X.  E.   1006.  7  L.  R.  A. 

390,  p.  057. 
Harvey  v.  Linville  Imp.  Co.,  US  X.  C. 

093,  24   S.  E.  489,   54  Am.    St.    Rep. 

749,  32  L.  R.  A.  205,  p.  501. 
Harvey  v.  Merrill,   150  Mass.   1.  22  X. 

E.  49,   15  Am.  St.  Rep.   159,  5  L.  R. 

A.  200,  p.  498. 

Harwood    v.    Kirby,    1    Paige,    469,    p. 
868. 

Hastings   v.   Cutler,  24   X.   H.   481,   p. 
205. 

Hatch    V.    Cobb,    4    Johns.    Ch.    559.    2 

Scott  343,  p.  99. 
Hatch  V.  Hatcli,  9  Ves.  292.  297,  298. 

p.   513,   520,  521. 
Hatch's  Estate.  In  re,   62  Vt.   300.   18 

Atl.    814,   22   Am.    St.    Rep.    109,    p. 

237. 
Hathaway    v.    Brady,    23    Cal.    122.    2 

Ames  Eq.  Jur.  299,  p.  431. 


958 


TABLE    OF    CASKS    CITED. 


Hattersley  v.  Bissett^  51  N.  J.  Eq.  597, 
40  Am.  St.  Rep.  532,  29  Atl.  187,  p. 
2.31. 
Hatton  V.  Gray,  2  Cas.  Cli.  1G4,  1  Ames 

Eq.  Jur.  421,  2  Scott  129,  p.  893. 
Baiighwout  V.   Murphy,   22   N.   J.   Eq. 
531,    21    N.    J.    Eq.    118,    Sliep.    198, 
p.  161,  162,  287,  752. 
Haiiselt  V.  Harrison,  105  U.  S.  401,  26 

L.   ed.    1075,   p.   739. 
llavemeyer  v.  Superior  Court,  84  Cal. 
327,   363,    18   Am.   St.   Rep.    192,   24 
Pae.  121,  10  L.  R.  A.  627,  p.  807. 
Haven  v.  Foster,  9  Pick.   Ill,  112,   19 

Am.   Dec.    353,   p.   427. 
Havens   v.    Sackett,    15   N.   Y.   365,   p. 

233. 
Haviland  v.  Willetts,  141  N.  Y.  35,  35 
N.    E.    958,    2    Ames    Eq.    Jur.    273, 
3  Keener  144,  p.  421. 
Hawes  v.  Oakland,   104  U.   S.  450,  26 

L.  ed.  827.  p.  631,  633. 
Hawkshaw  v.  Parkins,  2  Swanst.  539. 

548,  p.  849. 

Hawley   v.    Bibb,    69    Ala.    52,   p.    498. 

Hawley  v.   Clowes,   2   Johns.   Ch.    122, 

1   Ames   Eq.   Jur.   484,   1    Scott   663, 

p.  827,  830. 

Hawralty  v.  \Yarren,  18  X.  J.  Eq.  124, 

90  Am.  Dec.  613,  2  Scott  140.  p.  906. 

Ha\rthorne,  In  re,  23  Ch.  D.  743,  Shep. 

77,  p.  208. 
Hayden  v.  Charter  Oak  Driving  Park, 
63*Conn.    142,   27    Atl.   232,   p.   320, 
362. 
Haydock  v.  Haydock,  33  N.  J.  Eq.  494, 

3   Keener  807,   p.   510. 
llaydon   v.    Xicoletti,    IS    Xev.    290,   3 

Pac.   473,  p.   329. 
Hayes  v.  Livingstone.  34  Mich.  384.  22 

Am.  Rep.  533,  p.  391. 
Haygarth    v.    \Yeaving,    L.    R.    12    Eq. 

320,  327,  328.  p.  446. 
Haywood  v.  Brunswick  etc.  Soc.  L.  R. 
8   Q.   B.   Div.   403,    1   Ames  Eq.   Jur. 
176,  2   Scott   515,  2  Keener   580.   ]). 
778. 
Ha^nvood    v.    Cope.    25    Beav.    140,    p. 

467.  • 
Haywood  v.  Hutchins.  65  X.  C.  574,  1 
Ames  Eq.  Jur.  459.  p.   918. 


Haywood  v.  Lincoln  Lumber  Co.,  64 
Wis.  639,  26  N.  W.  184.  p.  806. 

Head  V.  Porter,  70  Fed.  498,  1  Ames 
Eq.   Jur.    644,   p.    837,   838. 

Heard  v.   Stamford,  Cas.  t.  Talb.   173, 

1  Scott  293,  p.  203. 

Heath  v.  Erie  R.  R.,  9  Blatch.  316.  p. 

75. 
Heatli    v.    \Yaters,    40    Mich.    457.    p. 

620. 
Heckard  v.  Sayre,  34  111.  142,  1  Ames 

Eq.   Jur.   340,   p.   899. 
lledderly    v.    Johnson,    42    :\Iinn.    443, 

18    Am.    St.   Rep.    521,    p.    896. 
Hedges    v.    Dixon    County,    150    U.    S. 

182,  14  Sup.  Ct.  71,  1  Scott  298.  p. 

204. 
Hegenmyer   v.    Marks.    37    ]\Iinn.    6,    5 

Am.  St.  Rep.  808,  32  X.  W.  785,  p. 

517. 
Heilbron   v.    Fowler,   etc.    Co.,   75   Cal. 

426,    7    Am.    St.    Rep.    183,    17    Pac. 

535.   p.   8.34. 
Heintze   v.   Bentley,  34  X.   J.   Eq.   562, 

p.    704. 
Heist  v.   Baker,  49   Pa.   St.   9,  p.   7."51. 
Helberg  v.   Schumann,    150  111.    12,   37 

X.   E.   99,   41   Am.   St.   Rep.   339,   p. 

505. 
Helling  v.  Lumley,  3  De  Gex  &  J.  493, 

2  Keener  1022,  p.  894. 

Helme  v.  Philadel))hia  Ins.  Co.,  61  Pa. 

St.    107,   100   Am.   Dec.   621,   p.   225. 
Helme  v.  Strater,  52  X"'.  J.  Eq.  591,  30 

Atl.   333,  p.  236. 
Hempstead    v.    ^Yatkins,    6    Ark.    317, 

355,   368,   42   Am.   Dec.   696,   p.    131, 
.  132.  , 

Henderson  v.  Adams,   15  Utah,  30.  48 

Pac.  398,  p.  547. 
Henderson    V.    Dickey,    35    Mo.    120,    2 

Ames  Eq.  Jur.   185,  p.  101,  859. 
lienderson    v.    Hall.    134    Ala.    455.    .32 

South.  840,  p.  24. 
Henderson  v.  Lacon,  L.  R.  5  Eq.  249, 

263,    p.    453. 
Henderson   V.   Xew   York   Cent.   R.    R. 

Co.,  78  X.  Y.  423,  1   Keener  623,   1 

Scott  707.  p.  824. 
Henderson  v.  Wanamaker,  79  Fed.  736, 

25  C.  C.  A.  181,  p.  287. 


TABLE   OF    CASES   CITED. 


959 


Henderson-Achert    Lith.    Co.    v.    John 

Shillito  Co.,  04  Ohio  St.  236,  83  Am. 

St.    Rep.     745,     GO     X.     E.     29,5,     p. 

916. 
Hendricks   v.    Robinson,   2   Johns.    Cli. 

283,   p.    910. 
Hendrickson  v.  Hinckley,  17  How.  443, 

15   L.   ed.   123,   Shep.   292,   p.   851. 
Hennessey  v.    Carmony,   50   X.    J.    Eq. 

616,   25   Atl.   374,    1    Ames   Eq.   Jur. 

578,    1    Keener  800,    1    Scott   752,   p. 

832. 
Henry    v.    Henry,     103     Ala.     582,     15 

South.    916,    p.    810. 
Henn'   v.   Tupper   29   Vt.   358,   p.   226. 
Hensman   v.   Fiyer,   L.   R.   3    Ch.    420, 

2  Eq.  627,  p.  602. 
Herbert  v.  Pennsylvania  Co.,  43  X.  J. 

Eq.  21.  10  Atl.  872,  1  Keener  860,  p. 

832,  848. 
Herbert  v.   Wren,   7   Cranch,   370,   378, 

379,  Shep.   132,  p.  235,  865. 
Hercy  v.   Birch,  9  Ves.  357,  p.   885. 
Hermann  v.  Hodges,  L.  R.   16  Eq.   18, 

1   Ames   Eq.   Jur.   0],   2   Scott  58.   2 

Keener  56,  p.   881.  884. 
Herndon   v.   Gibson,   38   S.    C.   357.   37 

Am.   St.  Rep.  765,   17   S.  E.   145,  20 

L.   R.   A.   545,  p.   492. 
Hervey  v.  Smith,  22  Beav.  299,  p.  265. 
Hesse  v.   Briant,   6   De   Gex,  M.   &   G. 

023,  2  Keener  858.  p.  519,  520. 
Hewitt    V.    Loosemore.    D    Hare,    449, 

456.  458,  p.   318,  349. 
Heyder  v.  Excelsior  B.  &  L.  Ass'n,  42 

X.   J.   Eq.   403,   8   Atl.   310,   59  Am. 

Rep.   49,   H.    &   B.    70,   p.    318,    349. 
Hibbs    V.    Insurance    Co.,    40    Oliio    St. 

543,   p.  240. 
Hichborn  v.    Fletehor,   (;6   :*Ie.   209,   22 

Am.  Rep.  502,  p.  915. 
Hickey   v.   Parrot,   etc.    Co.,    32   ]Mont. 

143,  79  Pac.  098,   108  Am.  St.  Rep. 

510,  p.  811. 

Hicks  V.  Hamilton.  144  :\Io.  495,  46 
R  W.  432,  06  Am.  St.  Rep.  431.  p. 
712. 

Hicks  V.  Raincock,  2  Dick.  047.  1  Ames 

Eq.  Jur.  026.  p.  835. 
Hicks  V.  Stevv-ns.  121   111.  ISO.  11  X.  E. 

241.  H.  &   B.  273.  3  Keener  615,  p. 

455,  450,  459,  461. 


Hicks  V.  Jurck,  72  Mich,  311,  40  X.  W. 

339,  H.   &   B,   711,   2   Keener   57,   p. 

881,  884. 
Higbie  v.   ^^"estIake,   14  X.   Y.   281,   p. 

805. 
Higgins  V.   Butler,  78  :\Ie.  520,  7   All. 

276,   1   Ames  Eq.  Jur.  419,  p.  894. 
Hill  V.  Barclay,  16  Ves.  402,  403,  405, 

406,    18    Ves.    30,   56,   58-64,   p.   224, 

226. 
Hill   V.   Lane,   L.   R.    11    Eq.   215,   219, 

p.  471. 
Hill  V.  Reno,  112  111.  154,  54  Am.  Rep. 

222,  p.  867. 
Hill    V.    Spencer,    Amb.    041,    830,    2 

Scott   774,   p.   496. 
Hills  V.  Croll,  2  Phill.  Ch.  60.  1  Ames 

Eq.   Jur.   427,   2   Scott   90,   2   Keener 

216,    p.    818,    893. 
Hills  V.  Rowland,  4  De  Gex,  ]M.  &  G. 

430,  p.   226. 

Himrod    v.    Gilman,    147    111.    293,    35 

X.    E.    373,   p.    351. 
Hindman  v.  O'Connor,  54  Ark.  627.  16 

S.    W.    1052,    13    L.    R.    A.    490.    p. 

521. 

Hindson  v.  Wetherill,  1  Smale  &  (i. 
604,  5  De  Gex,  M.  &  G.  301,  p.  514, 
519. 

Hipp  V.   Babin,    19  How.  271,  278,    15 

L.  cd.  633,  p.  53. 
Hitclicock  V.  Giddings,  4  Price.   135.  2 

Ames   Eq.   Jur.    192.   p.   437. 
Hitchins   v.    Pettingill,    58    X'.    H.    3S0. 

H.  &  B.  246,  2  Ames  Eq.  Jur.   307. 

2  Scott  627,  3  Keener  1145,  p.  429, 

436. 
Hoare  v.   Bremridge,  L.   R.   8   Ch.   22, 

14  Eq.  522,. 2  Ames  Eq.  Jur.  121,  p. 

472.  853. 
Hobbs  V.  Xorton,  1   Vern.   136,   1   Scott 

554,  p.  376. 
Hobson   V.   Trevor,   2   P.   Wms.    191,    1 

Scott  75,  p.  759,  769. 
Hoddel  V.  Pugh,  33  Beav.  489,  2  Scott 

412,  p.  164,  681. 
Hodge  v.   Amerman.   40   X.   J.   Eq.   99, 

2  Atl.  257.  p.  279. 

Hodge  v.  Ludlum.  45  Minn.  290,  47 
X.  A\".  805,  p.  399. 


960 


TABLE    OF    CASES    CITED. 


Hodge  V.  Sloan,  107  N.  Y.  252,  1  Am. 

St.  Rep.  816,  17  N.  E.  335,  1  Ames 

Eq.  Jur.   184,  2  Scott  508,  2  Keener 

585,  p.  776. 
Hodges    V.    Rowing,    58    Conn.    12,    18 

Atl.  979,  7  L.  R.  A.  87,  H.  &  B.  585, 

2  Scott  62,  2  Keener  95,  p.  881. 
Hodges   V.    Winston,    94   Ala.    576,    10 

South.  535,  p.  277. 
Hodges'   Estate,    In   re,   66   Vt.   70,   44 

Am.    St.    Rep.    820,    28    Atl.    663,   p. 

620,  623. 
Hodgson  V.  Duce,  2  Jur.  N.  S.  1014,  1 

Ames  Eq.  Jur.  523,  p.  844. 
Hodgson  V.   Williamson,  L.  R.   15   Ch. 

Div.  87,  p.  652. 
Hoefl'er  v.   Clogan,   171   111.  462,  49  N. 

E.    527,    03    Am.    St.    Rep.    241,    40 

L.   R.  A.   730,  p.  576. 
Hoene    v.    Pollak,     118    Ala.    617,    24 

South.    349,    72    Am.    St.    Rep.    189, 

p.    395. 
Hoffman   v.   Mackall,   5   Ohio   St.    124, 

130,  64  Am.  Dec.   637,  p.  557. 
Hoffman   v.   Postill,   L.   R.   4   Ch.   673, 

p.  75,  78. 
Hogg    V.    Link,    90    Ind.    346,    350,    p. 

477. 
Hogg  V.  Scott,  L.  R.  18  Eq.  444,  1  Ames 

Eq.  Jur.  655,  p.  838. 
Holbrook  v.  Ford,  153  111.  633,  46  Am. 

St.  Rep.  917,  39  N.  E.  1091,  27  L.  R. 

A.  324,  p.  809,  811. 
Holbrook    v.     Pa^^le,     151     Mass.     383, 

24  X.  E.   210,  21   Am.  St.  Rep.  456, 

p.  766. 
Holden   v.   New   York   and   Erie  Bank, 

72  N.  Y.  280,  292,  p.  .303,  306,  308. 
Holland   v.   Anderson,   38   Mo.   55,   58, 

p.  99. 
Holland  v.    Brown,   140  N.   Y.   344,   35 

N.  E.  577,  p.  279. 
Holland  v.   Challen,   110  U.   S.    15,   16, 

19,  3  Sup.  Ct.  495,  p.  142,  873,  874, 

875. 
Holland    v.    Citizens'    Sav.    Bank,    16 

R.  I.  734,  19  Atl.  654,  8  L.  R.  A.  553, 

p.  718. 
Holland  v.  Holland,  L.  R.  4   Ch.   449, 

Ames  Trusts  236,  p.  620. 
Holley  V.  Glover,  36  S.  C.  404,  31  Am. 
St.  Rep.  883,  15  S.  E.  605,  16  L.  R. 
A.  776,  p.  870, 


Holliday    v.    Franklin    Bank,    16    Ohio 

533,  p.   342. 
HoUins  V.  Brierfield  etc.  Iron  Co.   150 
U.  S.  371,  379,  14  Sup.  Ct.  127,  128, 
37  L.  ed.   1113,  p.  595,  807. 
Hollis    V.    Whiteing,    1    Vern.    151,    2 

Keener  747,  p.  905. 
Hollochcr  V.  Hollocher,  62  Mo.  267,  p. 

510. 
Holmes  v.   Gilman,   138  N.  Y.  376,  34 
Am.   St.  Rep.  463,  34  N.  E.  205,  20 
L.  R.  A.  566,  p.  597. 
Holmes  v.  Goghill,  7  Ves.  499,  12  Ves. 

206,  p.  253. 
Holmes  V.  Powell,  8  De  Gex,  M.  &  G. 

572.  p.  274,  275,  279. 
Holmes   v.    Walter,    118    Wis.   409,    95 

N.  W.  380,  p.  549. 
Holmes'  Appeal,  77  Pa.  St.  50,  p.  454. 
Holridge  V.  Gillespie,  2  Johns.  Ch.  30, 

Kirch.  579,  p.  098. 
Holroyd    v.    Marshall,    10    H.    L.    Cas. 
191,    Kirch.    42,    p.    740,    759,    769, 
770. 
Hoist   V.    Stewart,    161    Mass.    516,    37 
N.  E.   755,  42  Am.   St.  Rep.  442.  p. 
459. 
Holt   V.   Thurman,    111   Ky.   84,   63    S. 
W.    280,    98    Am.    St.    Rep.    398,    p. 
761. 
Home    Sav.    &    State    Bank    v.    Peoria 
Agricultural    &    Trotting    Soc,    20() 
111.    9.    99  .  Am.     St.    Rep.     132,    69 
N.  E.   17,  p.   356. 
Homfray  V.  Fothergill,  L.  R.  1  Eq.  567, 

2  Keener  26,  p.  885. 
Honaker   v.   B'd  of   Education,   42   W. 
Va.    170,   57    Am.    St.    Rep.    847,    24 
S.    E.     544.    32    L.    R.    A.    413,    p, 
822. 
Honore's  Ex'r  v.  Bakewell,  6  B.  Mon. 

67,  43  Am.  Dec.  147,  p.  281. 
Hood   V.   Hammond,   128   Ala.   569,   30 
South.    540,    86    Am.    St.    Rep.     159 
p.   748. 
Hood  V.  North  East.  R'y,  L.  R.  8  Eq. 
666,  5  Ch.  525,  1  Ames  Eq.  Jur.  82, 
2  Scott  76,  2  Keener  160,  p.  820. 
Hood-Barrs    v.    Heriot,    [1896]    A.    C. 

174,  p.   643. 
Hooper,  Ex  parte,  1  Mer.  7,  Kirch.  114, 
p.  755. 


TABLE    OF    CASKS    CITED. 


961 


Hooper   v.   Central    Trust   Co.,   81    Md. 

559,   32   Atl.   505,  29   L.   R.   A,   262, 

p.    175,   318,    345,    349. 
Hope  V.  Lyddell,  21  Beav.  183,  p.  281. 
Hopkins  v.   Grimshaw,   165  U.  S.  342, 

17   Sup.   Ct.   401,   23   L.   ed.   392,   p. 

.")S8. 
Hopkins  v.   Hopkins,   1   Atk.   581,  590, 

591,  592,  p.  545,  546. 
Hopkinson  v.  Rolt,   9  H.   L.   Cas.   514, 

25  Beav.  461,  p.  703,  704. 
Hopler  V.  Cutler,    (X.  J.  Eq.)    34  Atl. 

746.  p.  344,  345. 
Hopper   V.    Calhoun,   52   Kan.    703.   35 

Pac.   816,   39   Am.    St.   Rep.   363,    p. 

711. 
Hoppin  V.  Doty,  25   Wis.  573,  591,  p. 

265. 
Horlock,   In   re,    [1895]    1    Ch.   516,   p. 

242. 
Honi   V.   Cole,   51    X.   H.   287,   289,    12 

Am.  Rep.   Ill,  H.  &  B.   101,  p.  389, 

395,   397. 
Horrell    V.    Waldron,    1    Vern.    26,    p. 

656. 
Hotchkin  v.  Third  Xat.  Bank,  127  N. 

Y.    329,    27    N.    E.    1050,    3    Keener 

581,  p.  469. 
Hotz's  Estate,  38  Pa.  St.  422,  80  Am. 

Dec.  490,  p.  489. 

Hough  V.  Richardson,  3  Story,  659,  p. 
444. 

Houghton,  Ex  parte,  17  Ves.  251,  253, 

p.   590. 
Houlton    V.    Xichol,    93    Wis.    393,    67 

N.  W.  715,  57  Am.  St.  Rep.  928,  33 

L.  R.  A.  166,  p.  495. 
House  V.  Dexter,  9  Mich.  246,  2  Scott 

414,  p.  162. 
Houston  V.  Bryan,  78  Ga.   181.  6  Am. 

St.  Rep.  2.52,  1  S.  E.  252,  p.  515. 
Houston  V.  Timmerman,  17  Oreg.  499, 

II    Am.   St,   Rep.   848,  H.   &   B.   98, 

p.  286. 
Hovey  v.   Bradbury,   112   Cal.   620,  44 

Pac.  1077,  p.  199. 
How  V.  Tenants  of  Bromsgrove,  1  Vern. 

22,  2   Ames   Eq.   Jur.   55,    1    Keener 

113,  p.  104. 

Howard  v.  Clark,  71   Vt.  424,  45   Atl. 

1042,   76   Am.   St.   Rep.   782,   p.   381. 
61 


Howard    v.    Harris,     1     Vern.     190,    2 

Lead.    Cas.    Eq.,   4th   Am.    ed.,    1945, 

1949,    1952,    1983,    Kirch.   430,   Shej). 

57,  p.  173,  698,  721. 
Howard  v.  Robinson,  5  Cush.  119.  123, 

p.  692. 
Howard  v.  Turner,  155  Pa.  St.  349.  26 

Atl.  723,  35  Am.  St.  Rep.  883,  p.  475. 
Howard    Ins.    Vo.   v.   Halsey,   8    X.    Y. 

271,  59  Am.  Dec.  478,  p.  281. 
Howe  V.  Taylor,  6  Oreg.  284,  291,  292, 

p.  408. 
Howe  V.  Watson,  179  Mass.  30,  60  X. 

E.  415,  1  Ames  Eq.  Jur.  429,  p.  893. 
Howell  V.  Tompkins,  42  X.  J.  Eq.  305, 

11  Atl.  333,1).  685. 
Hoyland  v.  Xorris,   1   Cox  C.  C.   59,  2 

Scott  371,  p.  905. 
Howser   v.   Cruikshank,    122   Ala.   256, 

25  South.  206,  82  Am.  St.  Rep.  76,  p. 

726. 
Hoxie   V.    Chaney,    143    Mass.    592,    58 

Am.  Rep.  149,  10  X.  E.  713,  p.  840. 
Hoy  V.  Bramhall,  19  X.  J.  Eq.  563,  97 

Am.  Dec.  687,  p.   728,  730. 
Hoyt  V.  Hoyt,  85  X.  Y.   142,   146,   149, 

p.  744. 
Hubbard,  Matter  of,  82  X.  Y.   90,  92, 

p.  783. 
Hubbard  v.  Weare,  79  Iowa,  678,  44  X. 

W.  915,  p.  450. 
Hubbell  V.  Moulson,  53  X.  Y.  225.   13 

Am.  Rep.  519,  Kirch.  334,  p.  693.  695, 

719. 
Hubbell   V.    Von   Schoening.    49    >s.    Y. 

326.  330,  2  Keener  1105,  2  Scott  350, 

p.  898,  899,  900. 
Hudkins  v.    Ward,   30   W.   Va.   204.   8 

Am.  St.  Rep.  22,  3  S.  E.  600,  p.  909. 
Hudson  Bros.  Com.  Co.  v.  Glencoe  etc. 

Co.,  140  Mo.   103,  41   S.   W.   450,  62 

Am.  St.  Rep.  722,  p.  380. 
Huggins  V.   Huggins,    117   Ga.    151,   43 

S.  E.  759,  p.  804. 
Hughes  V.  Jones,  116  X.  Y.  75,  15  Am. 

St.  Rep.  386,  22  X.  E.  446,  5  L.  R.  A. 

632,  p.  786. 

Huguenin  v.  Baseley,  14  Ves.  273,  2 
Lead.  Cas.  Eq.,  4th  Am.  ed.,  1156, 
1174,  1192.  1242,  p.  463,  514. 

Hulme  V.  Tenant,  1  Brown  Ch.  16,  1 
Lead.  Cas.  Eq.  679,  p.  504,  651. 


962 


TABLE   OF    CASES    CITED. 


Humboldt    County   v.    Lander    County, 

22  Xev.  248,  58  Am.  St.  Eep.  750,  38 

Pac.  578,  26  L.  R.  A.  749,  p.  866. 
Hume  V.  Dixon,  37  Ohio  St.  66,  p.  341. 
Hun  V.  Cary,  82  N.  Y.  65,  70,  37  Am. 

Rep.  546,  H.  &  B.  507,  p.  612,  626, 

631. 
Hunt  V.  Fowler,  121  111.  269,  12  N.  E. 

331,   17   N.  E.  491,  H.  &  B.  438,  p. 

577,  579,  580, 
Hunt  V.  Hunt,  4  De  Gex,  F.  &  J.  221, 

1    Ames   Eq.    Jur.    131.   p.   487. 
Hunt  V.  Hunt,  72  X.  Y.  217,  228-230, 

28  Am.  Rep.   129,  p.  52. 
Hunt  V.  Luck,  [1901]   1  Ch.  45,  [1902] 

1  Ch.  428,  p.  278. 
Hunt  V.  Peake,  Johns.  705,  G  Jur.,  N. 

S.,  1071,  p.  834. 
Hunt   V,   Rousmaniere,   8    Wheat.    174, 

212,  213,   1   Pet.   161,  2  Mason,  342, 

H.  &  B.   177,   182,  2  Ames  Eq.  Jur. 

250,  3  Keener  G,  2  Scott  544,  p.  191, 

416,  417,  419. 
Hunter  v.  Bilyeu,  30  111.  228,  246,  H. 

&  B.  248,  p.  434,  436. 
Hunter  v.    Carroll,   64   N.   H.    572.    15 

Atl.  17,  1  Ames  Eq.  Jur.  529,  p.  844. 
Himter  v.  ilcLaughlin,  43  Ind.  38,  p. 

446. 
Hunter  v.  Walters,  L.  R.  11   Eq.  292, 

p.  340. 
Hunter  v.  Watson,  12  Cal.  363,  377,  73 

Am.  Dec.  543,  p.  295. 
Hunting  v.   Damon,   160   Mass.   441.   2 

Keener  1156,  p.  895. 
Hurlbert   v.   T.   D.   Kellogg  Lumber  & 

Mfg.    Co.,    115   Wis.   225,   91    N.    W. 

673,  p.  446. 
Hurricane  Tel.    Co.   v.   Mohler.   51    W. 

Va.  1,  41  S.  E.  421,  p.  73,  78. 
Hutchinson  v.   Maxwell,    100   Va.    169, 

40  S.  E.  655,  93  Am.  St.  Rep.  944, 

57   L.  R.   A.   384,  p.  551. 
Hutton  V.  Rossiter,  7  De  Gex,  M.  &.  G. 

9,   18,    19,   22,   23,  p.   472. 
Hyde  v.  Lynde.  4  N.  Y.  387,  p.  809. 
Hyer   v.    Richmond   Traction    Co.,    168 

'u.  S.  471,  18  Slip.  Ct.  114,  C2  L.  ed. 

547,  p.  885. 
Hyndman   v.    Hyndman,    19   Vt.    9,   46 

Am.    Dec.    171,    Kirch.    583,   p.    515. 

098. 


I. 


Ibbottson   V.    Rhodes,   2   Vem.    554.   p. 

376. 
Ide  V.  Trorlicht  Co.,  115  Fed.  137,  148, 

53  C.  C.  A.  341,  1  Ames  Eq.  Jur.  642, 

p.    198,   836. 
Illinois  Central  R.  R.  v.   McCuilough, 

59  in.  166,  p.  277. 
Ind,  Coope  &  Co.  v.  iiimmerson,  L.  R. 

12  App.   Cas.   300,  p.  370. 
huliana,  Bloomington  &  W.  R.  R.  Co. 

V.  Bird,  116  Ind.  217,  18  X.  E.  837, 

9  Am.  St.  Rep.  842,  p.  375. 
Indiana,   I.   &   I.   R.   Co.   v.    Swannell, 

157  111.  616,  41  N.  E.  989,  30  L.  R. 

A.  290,  297,  p.  319. 
Ingham,   In   re,    [1893]    1    Ch.   352,   p. 

349. 
Ingle  V.  Richards,  28  Beav.  361,  p.  51G. 
Inhab.  of  Cranfovd  Tp.  v.  Watters,  61 

X.  J.  Eq.  248,  48  Atl.  316,  p.  68. 
Innerarity  v.  Merchants'  Nat.  Bank, 

139  Mass.  332,  1  N.  E.  282,  52  Am. 

Rep.  710,  p.  308. 
Ins.  Co.  V.   Bailey,   13  Wall.   616,  620, 

621,  623,  20  L.  ed.  501,  3  Keener  474, 

p.   66,   143,  473,  474,  853,  861. 
Interstate  B.  &  L.  Ass'n  v.  McCartha, 

43  S.  C.  72,  20  S.  E.  807,  p.  294. 
Irish  V.  Antioch  College,   126  111.  638, 

9  Ajn.  St.  Rep.  638,  18  N.  E.  768,  p. 

557. 
Iron   Age   Pub.   Co.   v.   W.   U.   T.    Co., 

83  Ala.  498,  3  Am.   St.  Rep.   758.   3 

South.    449,   2    Keener   834,    p.    818, 

893. 
Irwin  V.  Dane,  2  Biss.  442,  Fed.  Cas. 

Xo.  7,081,  p.  837. 
Invin  V.  Williar,  110  U.  S.  510,  4  Sup. 

Ct.   160,  p.  486. 
Isaacs,    In    re,    [1894]    3    Ch.    506,    2 

Scott  402,  p.  681. 
Ives  V.  Canby,  48  Fed.  718,  p.  660. 


Jackson    v.    Bronson,    19    Johns.    325, 

Kirch.  629,  p.  693. 
Jackson   v.   Duke   of   Xewcastle.   3    De 

Gex,  J.  &  S.  275,  I  Keener  707,  p. 

834. 


TABLE   OF    CA.SES    CITED. 


963 


Jackson  v.  LudelinjT,  21  Wall.  GIG,  22 

L.  ed.  492,  p.  028. 
Jackson  v.  Lynch,  129  111.  72,  21  N.  K. 

580,  22  N.  E.  246,  p.   197. 
Jackson  v.  Phillips,  14  Allen  539,  556, 

H.  &  B.  410,  p.  575,  577. 
Jackson  v.   Stevenson,    156  jNIass.   496, 

32  Am.  St.  Rep.  476,  31  N.  E.  691,  1 

Ames  Eq.  Jur.   179,  p.  777. 
Jackson's  Case,  Lane  60,   1   Ames  Eq. 

Jur.   143,  2  Scott  471,  p.   319. 
Jackson  Square  L.  &  S.  Ass'n  v.  Bart- 

lett,    95    Md.    661,    53    Atl.    426,    93 

Am.  St.  Rep.  416,  p.  551. 
Jacob  V.  Revell,   [1902]   2  Ch.   858,  p. 

463. 
Jacobs  V.  Morange,  47  N.  Y.  57,  Shcp. 

153,  p.  416. 
Jacques,   In   re,    [1903]    1    Ch.   267,   p. 

248. 
Jaggar  v.   Winslow,  30  Minn.   263,   15 

N.  W.  242,  p.  445. 
James  v.  Kerr,  40  Ch.  Div.  449,  p.  496, 

507. 
James  v.  Morey,  2  Cow.  246,  286,  298, 

300.   313,   14   Am.   Dec.   475,  p.   293. 

328,  380. 
James  v.   Newton,    142   jNIass.   366,   56 

Am.  Rep.  692,  8  N.  E.  122,  p.  764. 
Jamieson  v.   Wallace,   167   111.  388,   59 

Am.   St.  Rpp.  302,  47  X.  E.   762,   p. 

498. 
Jamison  v.  Brady,  6  Serg.  &  R.  466,  9 

Am.   Dec.   460,   p.   639. 
Janes  v.  Throckmorton,  57  Cal.  368,  p. 

568. 
Janney  v.  Buel,  55  Ala.  408,  p.  133. 
Jaques   v.   Weeks,   7    Watts,   261,   270. 

275,  p.  298. 
Jaquith  v.  Hudson,  5  Mich.   123,  H.  & 

B.  62,  p.  219,  220. 
Jeakins   v.    Frazier,    64    Kan.    267.    67 

Pac.   864,   2   Ames  Eq.   Jur.   268,   ]>. 

424. 

Jefferson    v.    Coleman,    110    Ind.    515. 

11  X.  E.  465,  p.  731. 
Jefferys   v.    Jeffer^s.    Craig   &    P.    138. 

141,  1  Ames  Eq.  .Tur.  261,  2  Keener 

700.  1  Scott  303,  2  Scott  154,  p.  173. 

892. 
Jefferys  v.   Smith,   1   Jacob  &  W.  298. 

p.  804. 


Jenkins  v.  Morris,  L.   R.    14  Ch.   Div. 

074,  p.  505. 
Jennor  v.  Tunier,   16  Ch.  Div.   188,  p. 

488. 
Jennings    v.    Bank    of    California,    79 

Cal     323,   21    Pac.   852,    12   Am.    St. 

Rep.   145,  5  L.  R.  A.  233,  p.  330. 
Jennings  v.   Broughton,  5  De  Gex,  M. 

&  G.  126,  17  Beav.  234,  p.  447,  453, 

458,  526. 
Jennings  v.  Moore,  2  Vern.  609,  p.  319. 
Jennings  v.  Ward,  2  Vcm.  520,  Kireli. 

470,  p.   608. 
Jerome  v.  Ross,  7  Johns.  Ch.  315,  333. 

11    Am.    Dec.    484,    1    Scott    692,    p. 

843. 
.Jersey    City   Printing    Co.   v.    Cassidy, 

63    N.    J.    Eq.    759,    53    Atl.    230,    1 

Scott  768,  p.  846. 
Jervis  v.  Berridge,  L.  R.  8  Ch.  351,  p. 

428. 
Jervis    v.    Smith,    1    Hoff.    Ch.    470,    1 

Ames  Eq.  Jur.  313,  p.  779, 
Jesson  V.  Jesson,  2  Vern.  255,  p.  250. 
Jesus    College   v.    Bloom,    3    Atk.    262. 

263,  Amb.  54,   1   Scott   115,   1   Ames 

Eq.   Jur.   481,   1   Keener  404,   p.   98, 

829. 
Jevon   V.     Bush,    1    Vern.     342,    Ames 

Trusts  217,  p.  549. 
Jew  V.  Wood,  Craig  &  P.  185,  I  Keener 

240,   p.    795. 
Jewell    V.    Lee,    14   Allen    145,   92  Am. 

Dec.  744,  2  Keener  479,  p.  776. 
Jewett  V.  Bowman,  29  N.  J.  Eq.  174,  p. 

65. 
Jewett  V.  Palmer,  7  Johns.  Ch.  65,  11 

Am.  Dec.  401,  p.  362. 
Johns   V.   McLester,    137   Ala.    283,   34 

South.    174,   97   Am.   St.   Rep.   27,   p. 

631. 

Johns  V.  Wilson,  180  U.  S.  440,  21  Sup. 

Ct.  445,  45  L.  ed.  613,  p.  711. 
John's   Will,   In   re,   30   Oreg.   494,   47 

Pac.   341,  50  Pac.   226,  36  L.  R.  A. 

242.  p.  577,  580. 
Jolinson,  In  re.  15  Ch.  Div.  548,  Ames 

Trusts,  426.  p.  024. 

Johnson  v.   Atkinson,   3   Anstr.   798,   2 

Amos  Eq.  Jur.,  p.  793,  797. 
Johnson   v.   Christian,    128   U.   S.   374, 

9  Sup.  Ct.  87,  31  L.  ed.  820,  p.  852. 


964 


TABLE    OF    CASES    CITED. 


Johnson  v.  Colley,  101  Va.  414,  99  Am. 

St.   Rep.  884,  44  S.   E.   721,  p.   H66, 

668. 
Johnson  v.  Cook,  24  Wash.  274,  64  Pac. 

729,  p.  221. 
Johnson  v.   Crook,  L.  R.    12   Ch.   Div. 

639,  649,  p.  28,  33. 
Johnson  v.  Callafrlier,  3  De  Gex,  F.  & 

J.    494,    509-520,    521,    p.    504,    636, 

650. 
Jolinson  V,  Hess,   126  Ind.  298,  25  N. 

E.  445,  9  L.  R.  A.  471,  p.  294,  295. 
Johnson  v.  Hubbell,   10  N.  J.  Eq.  332, 

66   Am.   Dec.   773,   p.   881. 
Johnson    v.    National    B.    &    L.    Ass'n, 

125  Ala.  465,  28  South.  2,  82  Am.  St, 

Rep.   257,  p.  445. 
Johnson  v.  Thompson,   129  Mas3.  398, 

p.    710. 
Johnson   v.   Torpey,   35   Nebr.   604,   37 

Am.  St.  Rep.  447^  53  N.  W.  575,  p. 

914. 
Johnson  v.   Webster,  4  De  Gex,  M.   Sc 

G.  474,  p.   385. 
Johnson  v.  Zink,  51  N.  Y.  333,  p.  710. 
Johnstone  v.    Cox,   L.   R.    16   Ch.   Div. 

571,  p.   325. 
Johnstone's  Settlement,  In  re,  L.  R.  14 

Ch.  Div.  162,  p.  659. 
Johnston's  Estate,  185  Pa.  .St.  179.  64 

Am.    St.    Rep.    621,    39   Atl.    879,    p. 

549. 
Jones   V.    Beach,   2   De   Gex,   jNI.    &    G. 

886,  p.   192. 
Jones  V.  Chappell,  L.  R.  20  Eq.  839,  1 

Keener  744,  p.  833. 
Jones  V.  Davis,  121  Ala.  348,  25  South. 

789,  p.  340. 
Jones  V.   Gregoiy,  2   De  Gex,  J.   &   S. 

83,  p.  473. 
Jones  V.  Hardy,  127  Ala.  221,  28  South. 

564,    2    Ames   Cas.    Eq.    Jur.    91,   p. 

122. 
Jones  V.  Higgins,  L.  R.  2  Eq.  538,  544, 

p.   640. 
Jones  V.  Jones,  8  Sim.  633,  p.  315. 
Jones  V.  Lamar,  34  Fed.  454,  p.  385. 
Jones  V.  Lloyd.  L.  R.  18  Eq.  265,  274, 

275.  p.  786. 
Jones    V.    Lowery    Bkg.    Co.,    104    Ala. 

2.52,   16  South.   11,  p.  323. 
Jones  V.  MacKenzie,   122   Fed.   390,   p. 

64. 


Jones  V.  McNarrin,  68  Me.  334,  28  Am, 

Rep.   66,  p.   286. 
Jones  V.  Mason,  5  Rand.  577,  16  Am, 

Dec.  761,  p.  249. 
Jones  V.   North,   L.   R.    19   Eq.   426,   2 

Keener  273,  p.  820. 
Jones    V.    Parker,    163    Mass.    564.    47 

Am.  St.  Rep.  485,  40  N.  E.   1044,  1 

Ames    Eq.   Jur.    73,    2    Scott    83,   2 

Keener  192,  p.  887,  888. 
Jones  V.   l^eid,  12  W.  Va.  350,  29  Am. 

Rep.  455,  p.  639. 
Jones  V.  Smith,  1  Hare  43,  55,  60-70, 

1  Phill.  Ch.  244,  256,  p.  266,  278. 
Jones    V.     Weakley,    99    Ala.    441,     12 

South.  420,  42  Am.   St.  Rep.  84,   19 

L.  R.  A.   700,  p.  667,  668. 
Jones'  Appeal,  8  Watts  &  S.   141,  143, 

147,  42  Am.  Dec.  282,  p.  612. 
Jordan  v.  Cheney,  74  Me.  359,  p.  706. 
Jordan  v.  Phillips  &  Crew  Co.,  126  Ala. 

561,  29  South.  831,  p.  64, 
Jordan  v.  Stevens,  51   Me.  78,  81   .\m. 

Dec.  556,  H.  &  B.  188,  3  Keener  25, 

p.    421. 
Jordan   v.   Volkenning,   72   N.   Y.   300, 

306,  p.  446. 
Jorden  v.  ]\Ioney,  5  H.  L.  Cas.  185,  p. 

395. 
Joy  V.  St.  Louis,  138  U.  S.  1,  11   Sup. 

Ct.  243,  34  L.  ed.  843,  p.  890. 
Joynes  v.  Statham,  3  Atk.  388,  2  Scott 

253,  p.  431,  697,  701. 
Judson   V.   Corcoran,    17   How.   612,   p. 

326,    337,   338. 
Justis    V.    English,   30    Gratt.    565,    p. 

639. 


K. 


Kahn  v.   Walton,  46  Ohio  St.   195.  20 

N.  E.  203,  3  Keener  859,  H,  &  B.  32, 

p.  499. 
Kane  V.  Vanderburgh,  1  Johns.  Ch.  11. 

12,    1    Keener   450,    1    Scott   661,    p. 

827,  829. 
Kansas  &  A.  V.  R.  Co.  v,  Fitzhugh,  61 

Ark.   341,  54   Am.   St.   Rep.   311,   33 

S.  W.  960,  p.  854. 
Karberg's  Case,  [1892]  3  Ch.  1,  p.  4.50. 
Katz  V.  Walkinshaw,  141   Cal.   116,  99 

Am.    St.    Rep.    35,    70    Pac.    663,    74 

Pac.  766,  64  L.  R.  A.  236,  p.  834. 


TABhH    OF    CA!<i:S    CITED. 


Kean  v.  Johnson,  9  X.  J.  Eq.  401,  p. 

821. 
Kean  v.  Union  Water  Co.,  52  N.  J.  Eq. 

813,   46   Am.   St.   Rep.   538,   31    Atl. 

282,  p.   821. 
Keane  v.   Kyne,   GO   Mo.   21G,  2   Ames 

Kq.  Jur.  144,  p.  875. 
Kearnej'   v.   Vaughan,  50   Mo.   284,   p. 

411. 
Kearney  Bank  v.  Froman,  129  Mo.  427, 

31   S.  \Y.  769,  50  Am.  St.  Rep.  456, 

p.  305. 
Keates  v.  Lyon,  L.  R.  4  Ch.  218,  224,  2 

Keener  493,  p.  776. 
Keeble  V.  Keeble,  85  Ala.  552,  5  South. 

149,  H.  &  B.  68,  p.  219. 
Keen  V.  James,  39  N.   J.   Eq.   257,   51 

Am.  Rep.  29,  3  Keener  590,  p.  464, 

466. 
Keep   V.    Miller,   42   N.   J.   Eq.    100,   6 

Atl.  495,  1  Keener  328,  H.  &  B.  157, 

p.    164. 
Keepers  V.   Fidelity  Title   etc.   Co.,   56 

N.  J.  Law,  302,  28  Atl.  585,  44  Am. 

St.    Rep.   397,   23    L.   R.   A.    184,   p. 

668. 
Keisselbrach    V.    Livingston,    4    Johns. 

Ch.  114,  148,  2  Scott  616,  p.  434,  436. 
Keister  v.  Myers,   115  Ind.  312,   17  N. 

E.  161,  3  Keener  314,  p.  438. 
Keith  V.  Kellam,  35  Fed.  243,  246,  p. 

513. 
Keith  V.  Scales,  124  N.  C.  497,  32  S.  E. 

809,  p.  550. 
Keith,   Prowse   &   Co.   v.   Nat.   T.   Co., 

[1894]   2  Ch.   147,  2  Keener   188,  p. 

888. 
Keithley  v.  Wood,  151   111.  566,  38  N. 

E.  149,  42  Am.  St.  Rep.  265,  p.  700. 
Keller  V.  Harper,  64  Md.  74,  1  Atl.  65, 

3  Keener  ,964,  p.  680. 
Kelley  v.  Boettcher,  85  Fed.  55,  29  C. 

C.  A.  14,  56  U.  S.  App.  363,  p.   199. 
Kelley  V.  Jenness,  56  Me.  455,  79  Am. 

Dec.  623,  p.  590. 
Kelley  v.  York  Cliffs  Imp.  Co.,  94  Me. 

374,   47   Atl.   898,    1    Ames   Eq.   Jur. 

402,  p.  894. 
Kelly  V.  Galbraith,  186  111.  593,  58  N. 

E.  431,  p.   100. 
Kelly  V.   Lehicrh   :Min.   &   Mfg.   Co.,   98 

Va.  405,  81  Am.  St.  Rep.  736,  36  S. 

E.  511,  p.  68,  132. 


Kelly  V.  :\lorris,  L.  R.  Eq.  697,  p.  838. 
Kelly  V.  Nichols,  17  R.  1.  306,  21  Atl. 

906,  p.  576. 
Kelly  V.  Solari,  9  Mees.  &  W.  54,  p. 

429. 
Kelly  V.  Turner,  74  Ala.  513,  3  Keener 

92,   p.   417,  418. 
Keinble  v.  Farren,  6  Bing.  141,  p.  221. 
Kemble  v.  Kean,  6  Sim.  333,   1   Ames 

Eq.  Jur.  91,  p.  818. 
Kempson  v.  Kempson,  58  N.  J.  Eq.  94, 

43  Atl.   97,   1   Ames  Eq.   Jur.   26,  p. 

851. 
Kendall,   Ex   parte,    17    Ves.   514,   520, 

525,  526,  527,  p.  190. 
Kendall  v.  New  P^ngland  Co.,  13  Conn.. 

3S4,   p.    181. 
Kendall  v.  Woodruff,  87  N.  Y.  1,  7,  p. 

727. 
Kendrick   V.   Eggleston,   56   Iowa,    128, 

41  Am.  Rep.  90,  8  N.  W.  786,  p.  748. 
Kennedy  v.  Green,  3  Mylne  &  K.  699, 

719,  2  Lead.  Cas.  Eq.,  4th  Am.  ed., 

121,    p.    304. 
Kennedy  v.  Johnson,  65  Pa.  St.  451,  3 

Am.  Rep.  650,  p.  237. 
Kennerty   v.    Phosphate   Co.,   21   S.    C. 

226,  53   Am.  Rep.   669,  p.  429. 
Kenney  v.  Wexham,  6  Madd.  355,  357, 

2  Keener  80,  p.  163,  881,  882,  883. 
Kensington,  Ex  parte,  2  yes.  &  B.  79, 

Kirch.   Ill,  p.  755. 
Kent  V.   Riley,  L.  R.   14  Eq.    190,    194, 

p.    530. 
Kentucky  Nat.  Bank  v.   Stone,  93  Ky. 

623,  20  S.  W.  1040,  p.  622. 
Kenyon  v.  ^A'elty,  20  Cal.  ()37,  81  Am. 

Dec.    137,   2   Ames   Eq.   Jur.   283,   p. 

410. 
Kern  v.  Hazlerigg,  11  Ind.  443,  71  Am. 

Dec.  360,  p.  750. 
Kernohan   v.   Durham,   48    Ohio   St.    1 

26  N.  E.  982,  12  L.  R.  A.  41,  p.  351. 
Kessler  v.  Ensley  Co.,  123  Fed.  546,  p. 

401,  402. 
Kessler  &  Co.  v.  Ensley  Co.,  129  Fed. 

397,  p.  44. 
Ketchum  v.  Duncan,  96  U.  S.  659,  p. 

398. 

Kettle   River   R'y   Co.   v.    Eastern   R'y 
Co.,  41   Minn.  461,  43  N.  W.  469,  8 
1      L.  R.  A.  HI,  2  Scott  489,  p.  776. 


966 


TABLE   OF    CASES    CITED. 


Kevan  v.   Crawford,  L.   R.   6   Ch.   Div. 

29,  p.  531. 
Kibbe  v.   Benson,   17   Wall.  624.  21   L. 

ed.   741,   p.   855. 
Ki.Id    V.    Williams,    132    Ala.    140.    31 

Soutli.  458,  56  L.  R.  A.  879,  p.  520. 
Killian  v.  Ebbinjjhaus,  110  U.  S.  568, 

4    Sup.    Ct.    232,    28    L.    ed.    246,    2 

Ames  Eq.  Jur.  47,  1  Keener  295,  p. 

143,   798,    799. 
Kilmer  v.  Smith,  77  N.  Y.  226,  33  Am. 

Rep.  613.  3  Keener  283,  p.  437,  444. 
Kilpin   V.   Kilpin,   1   Mylne  &   K.   520, 

532.    p.    592. 
Kimball  v.  Norton,  59  N.  H.  1,  47  Am. 

Rep.    171,  p.   611. 
Kimball   v.   Redin<?,  31    N.   H.   352,   64 

Am.  Dec.  333,  p.  613. 
Kimberley  v.   Jennings,  6   Sim.   340,  2 

Keener  204,  p.   818,   819. 
Kinder  v.  Jones,  17  Ves.   110,  1  Ames 

Eq.  Jur.  490,   1   Keener  550,  p.  842. 
King  V.  Baldwin.  2  Johns.  Ch.  554,  17 

Johns.  384,  8  Am.  Dec.  415.  p.  63. 
King  V.  Bardeau,  6  -Tohns.   Ch.  38.   10 

Am.  Dec.  312,  2  Scott  387,  2  Keener 

112:5.  p.  905. 
King  V.    Bays,   Dyer,   283b.   Ames   Cas. 

on  Trusts,  216,  p.   549. 
King    V.    Brigham,    23    Oreg.    262,    31 

Pac.  601,  18  L.  R.  A.  366,  p.  866. 
King   V.    Carpenter,    37   Mich,   363,    p. 

873. 
King  V.  Davis,  60  Vt.  502,  11  Atl.  727, 

p.  506. 
King  V.  Denison,  1  Ves.  &  B.  260,  272. 

p.  588. 

King  V.   Pardee,   96  U.   S.   90.   p.   592. 
King  V.  Portis,  77  X.  C.  25.  p.  294. 
King  V.  Rossett.  2  Younge  &  J.  33.  3 

Keener  886,  p.  919. 
King  V.  Ruckman,  24  N.  J.  Eq.  316,  2 

Keener  390,  p.  899. 
King  V.  Smith,  2  Hare  239,  1  Ames  Eq. 

Jur.   483,   note,  p.  829. 
King  V.   Stuart.   84  Fed.   546.   1    Scott 

712,    p.    843. 

King  V.  Talbot,  40  N.  Y.  76,  Ames 
Trusts  472.  H.  &  B.  511,  p.  612,  615. 

King  V.  Young  Men's  Ass'n,  1  Woods, 
386,  Fed.  Cas.  No.  7,811,  p.  752. 


King.  The.  v.  Ex'rs  of  Sir  John  Dec- 
combe,   Cro.  Jac.    512,  Ames  Trusts, 

353,  p.  552. 
King's  Att'y  v.   Sands,   Freeman's   Ch. 

Cas.  129,  Ames  Trusts,  354,  p.  552. 
Kinney   v.   Ensmenger,   87   Ala.   340,   6 

South.  72,  2  Scott  633,  p.  429. 
Kinsley  v.  Abbott,  19  Me.  430,  434,  p. 

190. 
Kirl)y  v.  Potter,  4  Ves.  750,  p.  658. 
Kirby   v.    Raynes,    138    Ala.    194,    100 

Am.   St.  Rep.   39,   35   South.    118,   p. 

702. 
Kirby  v.  Tallmadge,  160  XT.  s.  379,  16 

Sup.  Ct.  349,  p.  275,  277,  279. 
Kirk  V.  Eddowes,  3  Hare,  509.  p.,  248. 
Kirkpatrick  v.   Clark,   132  111.   342.  22 

Am.    St.   Rep.    531,   24    N.   E.    71,    8 

L.    R.   A.   511,   p.    185. 
Kirsch   V.   Tozier,    143    N.    Y.    390,    38 

N.  E.  375,  42  Am.  St.  Rep.   729,  H. 

&  B.  77,  p.  274,  295. 
Kisch  V.   Cent.  R'y  of  Venzuela.  3  De 

Gex.  J.  &  S.  122,  135,  L.  R.  2  H.  L. 

99,   125,  p.  447,  449,  629. 
Klabimde  V.  Byron-Reed  Co.,    (Nobr.) 

98  N.  W.  182,  p.  520. 
Klein  V.  New  York  Life  Ins.  Co.,  104 

U.  S.  88,  p.  224. 
Klie  V.  VanBroock,  56  N.  J.  Eq.  18.  37 

Atl.  469,  1   Scott  668,  p.  827,  828. 
Kline  v.   Ragland,  47   Ark.    Ill,   14   S. 

W.  474,  p.  590. 
Knapp  V.  Bailey,  79  Me.  195,  201,  205. 

1  Am.  St.  Rep.  295,  9  Atl.  122,  H.  & 

B.  75,  p.  260,  262,  263,  701. 
Knapp   V.    Connecticut   Mut.    Life   Ins. 

Co.,   85   Fed.   329,   29   C.   C.   A.    171, 

40  L.  R.  A.   861,  p.   713. 
Knapp,  Stout  &  Co.  v.  McCaffrey,  178 

111.  107,  69  Am.  St.  Rep.  290,  52  N. 

E.  898,  p.  737. 
Knceland  v.  Trust  Co..   136  U.   S.   89, 

10  Sup.   Ct.  950,  p.  810. 
Knight  V.  Knight,  3  Beav.  148,  11  Clark 

&  F.  513.  p.  571. 
Knight  V.  Mahoney,  152  Mass.  523.  25 

N.  E.  971.  9  L.  R.  A.  573.  p.  489. 
Knoblock   V.   Mueller.    123    111.   554.    17 

N.  E.  696.  H.  &  B.  80,  p.  356,  357, 

359,   375. 


TABLE    OF    CASES    CITED. 


967 


Knox   V.   Eden  Musee  Aniericain   Co., 

148  N.  Y.  441,  42  N.  E.  !>S8.  31   L. 

R.  A.  779,  51   Am.   St.   Kep.   700.  p. 

332. 
Knox  V.  Gye,  L.  R.  5  H.  L.  056,  675, 

p.  594,  595. 
Knox  V.    Knox,   59   Wis.    172,   48    Am. 

Rep.   487,   18  N.   W.    155,  p.   572. 
Knox   V.    Singmaster,   75   Iowa,   64,   39 

N.  W.   183,  3  Keener  813.  p.  522. 
Koch  V.   Brigps,    14   Cal.   256,   73  Am. 

Dec.   651,  p.   557. 
Koehl  V.  Burrell.  L.  R.  7  Ch.  Div.  551, 

1  Keener  850,  p.  834. 
Koen  V.  Brill.  75  Miss.  870,  65  Am.  St. 

Rep.  633,  23  South.  481,  p.  909. 
Kofka    v._   Rosieky,    41    Neb.    328,    43 

Am.    St.    Rep.    685,    59    X.    W.    788, 

25  L.  R.  A.  207,  p.  903. 
Konvalinka    v.     Schlegel,     104    N.    Y. 

125,  58  Am.  Rep.  494,  9  X.  E.  868, 

H.  &  B.  1.32,  p.  236. 
Kopper  V.  Dyer,  59  Vt.   477,  9  Atl.  4, 

59   Am.    Rep.    742,   H.    &    B.    166,    1 

Scott   400,    p.    225,   404,   409. 
Kountz  V.  Kirkpatrick.  72  Pa.  St.  376, 

13  Am.  Rep.  687,  p.  330. 
Kowalke  v.  Milwaukee  E.  R.  &  L.  Co., 

103  Wis.  472,  79  N.  W.  762,  74  Am. 

St.    Rep.   877,   2    Scott   603,   p.    428, 

429. 
Krutz  V.  Robbins,  12  Wash.  7,  40  Pac. 

415,  50  Am.   St.  Rep.  871,  28  L.  R. 

A.  676,  p.  220. 

Kuhl  V.  Gaily  Universal  Press  Co.,  123 
Ala.  452,  26  South.  535,  82  Am.  St. 
Rep.    135,   p.    486,   499,   502. 

Kunkle  v.  Wherry.  189  Pa.  St.  198,  69 
Am.  St.  Rep.  802.  42  Atl.  112,  H.  & 

B.  61,  p.  219. 

Kyle  V.  Fehley,  81  Wis.  67,  51  N.  W. 
257,  29  Am.  St.  Rep.  866,  3  Keener 
131,  p.  421. 


L. 


Labouchere  v.   Earl  of  Whamcliffe,  L. 

R.   13  Ch.  Div.  346,  p.  821. 
Lacey,   Ex   parte,   6   Ves.   625,   627,   p. 

516. 
Iiackawanna  etc.  (.'o.  v.  Farmers'  Loan 

&  Tr.  Co.,  79  Fed.  202,  p.  810. 


Lacon  v.   Briggs,  3   Atk.   105,   2   Scott 

754,  p.  198. 
Lacy,  In  re,  [1899]  2  Ch.  149,  p.  575. 
Ladd  V.  Judson,   174   111.  344,  66  Am. 

St.  Rep.  267,  51   N.  E.   838,   p.  911. 
Ladue  v.  Detroit  etc.   R.   R.,   13  Mich. 

380,  87  Am.  Dec.  759,  p.  704. 
Lady  Elibank  v.  Montolieu,  5  Ves.  737, 

1   Lead.  Cas.  Eq.  623,  ()39-669,  670- 

679,  p.  646,  647. 
Laing  v.  McKee,  13  Mich,  124,  87  Am. 

Dec.  738,  p.  603. 
Lake  v.   Gibson,    1    Eq.    Cas.    Abr.   290. 

294.    pi.    3,    1    Lead.    Cas.    Eq.,    4th 

Am.    ed.,    264,    268,    1    Scott    367.    p. 

189,  742. 
Lake  v.  Hancock,  38  Fla.  53,  20  South. 

811,  56  Am.  St.  Rep.  159,  p.  367. 
Lake  View  M.  &  M.  Co.  v.  llannon,  93 

Ala.  87,  9  South.  539,  p.   609. 
Lamar  v.   Micou,   112   U.   S.  452,   465, 

5  Sup.   Ct.  Rep.  221,  26  L.  ed.   774. 

H.  &  B.   515,  p.  015. 
Lambe  v.  Eames,  L.  R.   10  Eq.  267,  6 

Ch.   597j   Ames  Trusts  85,  p.   571. 
Lambton  V.  Mellish,   [1894]   3  Ch.   163, 

1   Scott  744,  p.  831. 
Lamoille   Co.   Nat.    Bank   v.   Bingham, 

50  Vt.  105,  28  Am.  Rep.  490,  p.  498. 
Lamont  v.   Cheshire,  65  N.  Y.  30.  37, 

38,  p.  287. 
Lampet's   Case,    10   Coke,   46b,   48a.   j). 

758. 
Lamprey  V.  Lamprey,  29  Minn.  156.  12 

N.  W.  514,  p.  892. 
Lancey    v.    Randlett,    80    Me.    169.    13 

Atl.  686,  6  Am.  St.  Rep.  169,  1  Scott 

409,  p.  75,  93.  94,  409. 
Lane     V.     Debenham,     11     Hare,     188, 

Ames  Trusts  513,  p.  607. 
Lane    v.    Newdigate,    10    Ves.    192.    1 

Ames    Eq.    Jur.    74,    2    Scott    73.    2 

Keener   139,   p.   848. 
Lane   &   Bodley   Co.   v.    Locke,    150    I'. 

S.   193,   14  Sup  Ct.  78,  p.   836. 
Langdon  v.  Astor's  Ex'rs,  16  N.  Y.  9, 

p.  247,  249. 
Langdon  v.  Sherwood,  124  U.  S.  74,  8 

Sup.  Ct.  429,  Shej).  79.  p.  207. 
Langford   v.    Pitt.    2    P.    Wms.    629,   2 

Scott  405,  2  Keener  333,  p.  162,  897. 
Langridge  v.  Payne,  2  Johns.  &  H.  423, 

p.  218. 


968 


TABLE    OF    CASES    CITED, 


Lang   Syne   Gold   Mining   Co.   v.   Ross, 

20  Nev.  127,  19  Am.  St.  Rep.  337,  18 

Pac.  358,  p.  271. 
Lanoy  v.   Duke  of  Athol,  2   Atk.  444, 

446,    1    Scott   374,   p.    181. 
LansdoAvne   v.   Lansdowne,   2   Jacob   & 

W.  205,  Mos.  304,  365,  3  Keener   1, 

2  Scott  540,  p.  424. 
Lansdo\me  v.  LansdoAvne,  1  Madd.  116, 

1  Keener  406,  1  Scott  650,  p.  829. 
Larabrie  v.  Brown,  26  L.  J.  Eq.  N.  S. 

605,    1    Keener   284. 
Lamed  v.  Donovan,  155  N.  Y.  341,  49 

N.  E.  942,  p.  350. 
Larrowe  v.  Beam,  10  Ohio  498,  p.  357. 
Lart,  In  re,   [1896]   2  Ch.  789,  p.   395. 
La   Societe    Francaise   v.    Dist.    Court, 

53  Cal.  495,  p.  802. 
Latham  v.  Chafee,  7  Fed.  525,  p.  805. 
Lathrop   V.    Bampton,    31    Cal.    17,    89 

Am.   Dec.    141,  p.  605. 
Latshaw's   Appeal,   122  Pa.   St.   142,   9 

Am.  St.  Rep.  76,  15  Atl.  676,  p.  869. 
Lattin  v.  McCarty,  41  N.  Y.   107,  109. 

110,  p.   101. 
Lawes  v.  Bennett,  1   Cox,  167,   1  Scott 

602,  p.  680,  681. 
Lawrence  v.   Gayetty,  78   Cal.    126.   20 

Pac.    382,    12    Am.    St.    Rep.    29.    p. 

445. 
Lawrence  v.  Saratoga  Lake  R'y  Co.,  36 

Hun  467,  2  Keener  171.  p.  8S8.  889. 
Lawson   v.    Copeland,    2    Br.    Ch.    Cas. 

L56  Ames  Trusts,  492,  p.  610,  612. 
Lawton    v.    Estes,    167    Mass.    181,    45 

X.   E.   90,   57   Am.   St.   Rep.   450,   p. 

1 86. 
Leak  v.  Morrice,  2  Cas.  in  Ch.   135,  2 

Keener   746,   p.    905. 
Leake  v.  Watson,  58  Conn.  332,  18  Am. 

St.   Rep.   270,   20   Atl.   343,   8   L.   R. 

A.   666,  p.   597. 
Learned  v.  Tritch,  6  Colo.  432,  p.  372. 
Leather  v.  Simpson,  L.  R.  11  Eq.  398. 

p.  472. 
Leavitt  v.  Reynolds,   79   Iowa  348,   44 

N.  W.  567,  7  L.  R.  A.  365,  p.  706. 
Lechmere    v.    Earl    of    Carlisle,    3    P. 

Wms.  211,  215,  222,  p.  252,  678. 
Lee  V.  Cole,  17  Oreg.  559,  21  Pac.  819, 

p.  739. 
Lee  V.  Hewlett.  2  Kay  &  J.  531,  Ames 

Trusts  329,  p.   326. 


Lee   V.    Kirby,    104   Masg.   420,   428,   2 

Scott  300,  p.  484. 
l^e   V.    Lee,   4    Ch.    Div.    175,    179,    p. 

638. 
Lee  V.  Munroe,  7  Cranch,  366,  368.  p. 

349. 
Lee  V.  Percival,  85  Iowa,  135,  52  N.  W. 

543,  3  Keener  135,  p.  419. 
Lee  V.   Simpson,  37   Fed.    12,   2   L.   R. 

A.  659,  p.  816. 
Leech  v.  Schweder,  L.  R.  9  Ch.  463,  p. 

778. 
Leffler  v.   Armstrong,   4  Iowa,  482,   68 

Am.  Dec.  672,  p.  558. 
Lehigh  Valley  R.  R.  Co.  v.  McFarlan, 

30  N.   J.   Eq.   135,  2  Ames  Eq.   Jur. 

85,  31  N.  J.  Eq.  730,  754,  759-761,  1 

Keener   133,  p.    114,   122. 
Leigh    V.    Harrison,    69    Miss.    923,    11 

South.  604,  18  L.  R.  A.  49,  p.  551. 
Leighton  v.  Orr,  44  Iowa,  679,  p.  510. 
Leitch   V.   Wells,  48   Barb.   637,   48   X. 

Y.  585,  602,  609,  p.  288. 
Le  May  v.   Baxter,   11   Wash.   649,  40 

Pac.   122,  p.  76. 
Lemke  v.  Dietz,   (Wis.)    98  N.  W.  936, 

p.  494. 
Le    Xeve   v.    Le   Xeve,      Amb.    436,    2 

Lead.  Cas.  Eq.  1-108,  109,  and  notes, 

227,  2  Lead.   Cas.  Eq.,  4th  Am.  ed., 

sees.  140-142,  3  Atk.  646,  1  Ves.  Sr. 

64,  1  Scott  536.  p.  197,  256,  299,  301, 

.•?02,    303,    314,    318. 
Lent  V.  Howard,  89  X.  Y.  169,  3  Keener 

952,  p.   680. 
Lenzberg,  In  re,  L.  R.  7  Ch.  Div.  650, 

p.   527. 
Leonard   V.   Poole,    114   X.   Y.   371,   21 

X.   E.   707,   11   Am.   St.  Rep.   667,  4 

L.  R.  A.  728,  2  Scott  787,  p.  500. 
Le  Roy  v.  Rogers,  3  Paige,  234,  p.  9i0. 
Levi  V.  Blackwell,  35  S.  C.  511,   15  S. 

E.  24S,  p.   179. 
Lewin  V.  Lewin,  2  Ves.  Sr.  415,  p.  604. 
Lewis,  In  re,  81   N.  Y.  421,  p.  550. 
Lewis  V.  Allenby,  L.  R.  10  Eq.  668,  p. 

578. 
Lewis   V.    Arbuckle,    85    Iowa,    335,    52 

X.  W.  237,  16  L.  R.  A.  fi77.  p.  .505. 
Lewis  V.  Cocks,  23  Wall.  466,  409,  470, 
»      23  L.  ed.  70,  Shep.  17,  p.  64,  14S. 


TAHLK    OF    CASKS    CITED. 


960 


Lewis  V.  Denver  City  Waterworks  Co., 
19  Colo.   2:m,  41   Am.    St.   Rep.   248, 

74  Pac.  99;{,  p.  822. 
Lewis  V.  Gollner,  129  N.  Y.  227,  26  Am. 

St.   Rep.   516,   29   N.   E.   81,   1    Ames 

Eq.  Jur.   152,  2  Scott  496,  2  Keener 

612,  p.  777. 
Lewis  V.  Hawkins,  23  Wall.   119,  H.  & 

B.  (565,  p.  75.S. 
Lewis   V.    Holdre}i:e,   56    Nebr.    379,    76 

N.  W.  890,  p.  182. 
Lewis  V.   Kirk.   28   Kan.   497,   42   Am. 

Rep.    173,   p.    329,    350. 
Lewis  V.  Lord  Lechmere,  10  Mod.  503. 

p.  881. 
Lewis  V.  Smith,  9  N.  Y.  502,  504,  510, 

511,   61    Am.   Dec.   706,  p.   235. 
Lewis   V.    Town    of   Xorth    Kinf!:sto\\Ti, 

16  R.  I.  15,  26  Am.  St.  Rep.  724,  11 

Atl.   173,  p.   99. 
Lewis's  Appeal,  67  Pa.  St.  166,  p.  184. 
Leyland  v.   lllingworth,   2   De  Gex,   F. 

&  J.  248,  252,  254,  p.  463. 
Leyson  v.  Davis,  17  Mont.  220,  42  Pac. 

775.  31  L.  R.  A.  429,  p.  666,  667. 
Liberty  Bell,  The,  23  Fed.  843,  p.  822. 
Life  Ass'n  of  Am.  v.   Boo<jherj   3   Mo. 

App.   173,  Lewis  323,  p.  845. 
Lightfoot  V.  Heron,  3  Younge  &  C.  586, 

p.    507. 
Liles  V.  Terry,   [1895]   2   Q.   B.   679,   3 

Keener  827,  p.  519. 
Lindsay  v.  American  Mortgage  Co.,  97 

Ala.  412,  11  South.  770,  p.  805. 
Lindsay  v.  Barron,  60  E.   C.  L.  291,  2 

Ames  Eq.  Jur.  39,  p.  795. 
Lindsay   v.    Cooper,    94    Ala.    170,     11 

South.  325,  33  Am.  St.  Rep.  105,   16 

L.   R.  A.  813,  p.   401. 
Lindsay   v.    Smith,    78    N.    C.    328,    24 

Am.  Rep.  463,  p.  496,  497. 
Lindsay  Petroleum  Co.  v.  Hurd.  L.  R.  5 

P.  C.  221.  p.   198. 
Lingard  v.   Bromley,   1  Ves.  &  B.   114, 

117,  p.  621. 
Lingwood    v.    Stowmarket    Co.,    L.    R. 

1  Eq.  77,  336,  1  Keener  717,  p.  833. 
Linnell  v.  Battey,  17  R.  I.  241.  21  Atl. 

606.   1   Keener  .387.  p.  876.  877. 
Linspy  v.  Piatt,  9  Fla.   150.  p.  248. 
Liquidation    Estates    Purchase    Co.    V. 

Willoughby,    [1898]    App.    Cas.    321, 

p.   383. 


Liskey  v.   Snyder,    (W.   Va.)    49  S.   E. 

515,  p.  523. 
Littauer   v.    Houck,   92    Mich.    162,   52 

N.  W.  464,  31  Am  St.  Rep.  572,  p. 

302. 
Littl«  V.  Bird  well.  21  Tex.  597.  73  Am. 

Dec.  242,  p.  489. 
Little   v.    Gould,    2    Blatchf.    165,    Fed. 

Cas.  No.  8,394,  p.  838. 
Little    V.    Kingswood    Coll.    Co.,    L.    R. 

20  Ch.  Div.  733,  p.  816. 
Littleton  v.  Fritz,  65  Iowa  488,  54  Am. 

Rep.   19,  22  N.  W.  641,   1   Ames  Eq. 

Jur.  31,  p.  826. 
Livesey  v.   Jones,  35   Atl.    1064,   55   X. 

J.  Eq.  204,  p.  579. 
Livingston  v.  Livingston,  6  Johns.  Ch. 

497,    499,    500,    10   Am.    Dec.    353.    1 

Scott  689,  1  Keener  560.  p.  843. 
Lloyd  v.  Attwood,  3  De  Gex  &  J.  614, 

657,  p.  516. 
Lloyd  V.  Banks,  L.  R.  3  Ch.  488,  490, 

p.  259,  325. 
Lloyd  v.   Collett,  4   Brown   Ch.   469,   4 

Ves.  690,  2  Scott  329,  p.  900. 
Lloyd's   Bank   Co.   v.   Jones,   L.   R.   29, 

Ch.  Div.  221,  227,  Ames  Trusts  272, 

p.  349. 
Loaiza  v.   Superior  Court,   85   Cal.    11, 

20  Am.  St.  Rep.  197,  9  L.  R.  A.  376. 

24  Pac.  707,  p.  806. 
Lobdell  v.  Baker,  3  Met.  469,  p.  445. 
Lockwood  V.  Faber,  27  Fed.  63,  p.  836. 
Lockwood  Co.  v.  Lawrence,  77  Me.  297. 

309,  52  Am.  Rep.  763,  p.   120. 
Loewen  v.  Forsee,  (Mo.)  35  S.  W.  113S. 

p.  345. 
Loggie  V.  Chandler,  95  Me.  220,  49  Atl. 

1059.  2  Ames  Eq.  Jur.  140.  p.  874. 
Lombard  v.  Chicago  etc.  Cong.,  75  HI. 

271,  2  Keener  398,  p.   163. 
Lombard  V.   Morse,   155  Mass.    136,   29 

N.  E.  205,  14  L.  R.  A.  273,  p.  41. 
London  &  X.  W.  R'y  v.  Lancashire  etc. 

R'y,   L.   R.   4  Eq.    174,   178,   1   Ames 

Eq.  Jur.  525,  p.  844. 
Long  V.  King.  117  Ala.  423.  23  South. 

534,    p.    590. 
Long  V.  Mitchell.  63  Ga.  769,  p.  673. 
Long   V.    Richards,    170   Mass.    120.   48 

N.  E.   1083,  64  Am.  St.  Rep.  281,  p. 

719. 


970 


TABLE    OF    CASES    CITED. 


Longley  v.  Longley,  L.  R.  13  Eq.  133, 

p.  589. 
Longwood  etc.   R.   R.  v.   Baker,  27   N. 

J.  Eq.  166,  1  Keener  847,  p.  848. 
Loog   V.    Bean,   L.   R.   26   Ch.   D.   306. 

Lewis  388,  p.  845. 
Loomer  v.   Wheelwright,  3   Sand.   Ch. 

135,   157,  p.  382. 
Lord  V.   Lord,  23   Conn.   327,   331,   p. 

238. 
Lord   &   Polk   Chemical   Co.,   In    re,   7 

Del.  Ch.  248,  44  Atl.  775,  p.  192. 
Lord   Irnham   v.    Child,    1    Brown    Ch. 

92,  2  Scott  256,  p.  427. 
Lord  Pengall  v.  Ross,  2  Eq.  Abr.  46,  1 

Ames  Eq.   Jur.  276,  2  Scott  180,  p. 

902. 
Lord  Portarlington  v.  Soulby,  3  Mylne 

&   K.    104,    1    Ames   Eq.    Jur.   24,    1 

Keener  12,  p.  499,  851. 
Lord  Ranelagh  v.  Melton.  2  Drew  &  S. 

278,  1  Ames  Eq.  Jur.  319,  p.  897. 
Lord  Tenham  v.  Herbert,  2  Atk.  483,  2 

Ames  Eq.  Jur.  97,  1  Keener  191,  p. 

108. 
Lorillard  v.  Coster,  5  Paige,  172,   173, 

218,   p.   677. 
Losey  v.  Simpson,  11  N.  J.  Eq.  246,  p. 

297. 
Lothrop   V.   Marble,    12   S.   D.   511,   76 

Am.    St.    Rep.    626,   81    N.    W.    885, 

p.   903. 
Louden  v.  Bh-the,   16  Pa.  St.  532,  55 

Am.  Dec.  527,  p.  509. 
Loudon  V.    Youmans,   31    S.   C.    150,   9 

S.  E.  775,  17  Am.  St.  Rep.  17,  p.  364. 
Louisiana  B'd  of  Liq.  v.  McComb,  92 

U.  S.  531,  23  L.  ed.  623,  p.  822. 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Ohio 

Val.  I.  &  C.  Co.,  57   Fed.  42,  45,  p. 

119. 
Louisville  Tr.   Co.   v.   Stone,   107   Fed. 

305,  46  G.  C.  A.  299,  p.  823. 
Lounsbury   v.    Norton,    59    Conn.    170, 

22  Atl.  153,  p.  700. 
Love    V.    Sierra    Nevada    Co.,    32    Cal. 

639,  652,  653,  654,  91  Am.  Dec.  602, 

p.  172,  741. 
Lovejoy  v.  Potter,  60  Mich,  95,  26  N. 

W.  844,  2  Keener  458,  p.  319. 
Lovell  V.  Galloway,  17  Beav.  1,  p.  74. 
Lovell  V.  Hicks,  2  Younge  &  C.  46,  p. 

444. 


Loveridge  v.    Cooper,   3   Russ.   30,   31 ; 

affirmed    on   appeal,   3    Russ.    48-60, 

p.    194. 
Low  v.  Bouverie,  [1891]  3  Ch.  82,  113, 

1  Scott  565,  p.   323,  451. 

Lowell  v.   Boston  etc.  R.  R.,  23   Pick., 

24,  32,  34  Am.  Dec.  33,  p.  502,  503. 
Lowell  v.  Daniels,  2  Gray,  161,  61  Am. 

Dec.   448,  p.   399. 
Lowell    Inst.    v.    City    of    Lowell,    153 

Mass.  530,  27  N.  E.  518,  2  Keener 

562,  p.  776. 
Lowery  v.   Stewart,  25   N.   Y.   239,   82 

Am.  Dec.  346,  p.  764,  766. 
Lowman   v.    Lowman,    118    111.    582,    9 

N.  E.  245,  p.  382. 
Louiides   V.   Bettle,   33   L.   J.   Ch.   451, 

10  Jur.  N.  S.  226,  3  New  R.  409,  1 

Scott   647,    1   Ames  Eq.   Jur.   499,   1 

Keener  604.  p.  842,  843,  844. 
Lowndes  v.   Cornford,   18  Ves.  2-99,  p. 

791. 
Lowndes  v.  Lane,  2  Cox,  363,  p.  458. 
Lowther    v.    Carlton,    2    Atk.    242,    1 

Scott  501,  p.  306. 
Lucas  V.  Commerford,  3  Brown  Ch.  166, 

p.  887. 
Lucy,   Ex   parte,   4   De   Gex,   M.   &   G. 

356,  3  Keener  14,  p.  425. 
Luddy's   Trustee   v.    Peard.    33    Ch.   D. 

500.  519,  520,  p.  518,  520. 
Ludington  v.  Patton,  111  Wis.  208,  86 

N.  W.  571,  p.  421. 
Lufkin  V.  Nunn,  11  Ves.  170,  p.  321. 
Lumley  v.  Wagner,  1  De  Gex,  M.  &  G. 

601,  1  Ames  Eq.  Jur.  93,  2  Scott  96, 

2  Keener  223,  H.   &  B.  614,  p.  818, 
819. 

Lundin  v.  Schoeffel,  167  Mass.  465,  45 

N.  E.  933,  p.  225. 
Lusk  V.   Reel,   36   Fla.   418,   18   South. 

582,   51   Am.   St.   Rep.   32,  p.   344. 
Lutjen  V.  Lutjen,  64  N.  J.  Eq.  773,  53 

Atl.  625,  p.  198. 
Lyddon  v.  Ellison,  19  Beav.  565,  572, 

p.  247. 
Lyell  V.  Kennedy,  L.  R.   9  App.  Cas. 

81,  p.  81. 
Lynch  v.  Metropolitan  El.  R'y  Co.,  129 

N.  Y.  274,  15  L.  R.  A.  287,  26  Am. 

St.  Rep.  523,  29  N.  E.  315,  1  Scott 

124,  Shep.  30,  p.  98,  824. 


TABLE   OF    CASKS   CITED. 


971 


Lynch  v.   ^Mnrpliy,    161   U.   S.   247,    10  j 

Sup.  Ct.  r)23,  p.  293,  .372. 
Lynch  v.  Union  Instit.,  159  Mass.  306, 

34   N.    E.    364,   20   L.    R.    A.    842,    1 

Keener  647,  p.  844. 
Lynchburg  P.   B.  &  L.   Co.  v.   Fellers, 

96  Va.  337,  31  S.  E.  505,  70  Am.  St. 

Rep.  851,  p.  297,  729. 
Lyon,  Estate  of,  70  Iowa  375,  378.  30 

N.  W.  642,  5  L.  R.  A.  71,  p.  248. 
Lysaght  v.  Edwards,  L.  R.  2  Ch.  Div. 

499,  506,  507,  515,  518,  519,  2  Keener 

360,  p.  164,  753. 
Lytle  V.  Sandefur,  93  Ala.  396,  9  South. 

260,   1  Keener  383,  p.  877. 


M. 


Macaulay  v.  Philips,  4  Ves.  15,  19,  p. 

646. 
McBratney  v.  Chandler,  22  Kan.   692, 

31  Am.  Rep.  213,  p.  495. 
MacBrv-de  v.   Weekes,  22  Beav.  533,  2 

Keener   1085,  p.  899. 
McCabe  v.  Matthews,  155  U.  S.  550,  15 

Sup.  Ct.  190,  39  L.  ed.  257,  2  Keener 

1199,  p.  900. 
McCabe  v.   Swap,   14   Allen,    188,    191, 

p.   383. 
McCalley  v.  Otey,  99  Ala.  584,  42  Am. 

St.  Rep.  87,  12  South.  406,  p.  821. 
McCann  v.  Randall,  147  Mass.  81,  99, 

9  Am.  St.  Rep.  666,  17  N.  E.  75,  88, 

p.   206. 
McCarmel  v.  Shaw,  155  111.  37,  46  Am. 

St.   Rep.   311,   39   N.   E.   584,   27   L. 

R.   A.   580,   p.   822. 
McCarty  v.   Chalfant,   14   W.   Va.   531. 

p.    704. 
McCaskill  v.  Connecticut  Savings  Bank, 

60  Conn,  300,  25  Am.  St.  Rep.  323, 

22  Atl.  568,  13  L.  R.  A.  737,  p.  395. 
McCaul  V.  Braham.  16  Fed.  37,  2  Scott 

116,  H.  &   B.   607,  p.   819. 
McClelland  v.  Saul,  113  Iowa,  208.  84 

N.  W.  1034,  86  Am.  St.  Rep.  370,  p. 

306. 
McCloskey  v.  Gleason,  56  Vt.  264,  38 

Am.  Rep.  770,  p.  620. 
McChnig  V.  Colwell,  107  Tenn.  592,  89 

Am.  St.  Rep.  961,  64  S.  W.  890,  p. 

590. 


McClure  v.  Raben,  125  Ind.  139.  25 
N.  E.  179,  9  L.  R.  A.  477,  133  Ind. 
507,  33  N.  E.  275,  36  Am.  St.  Rep. 
558,  p.  511. 

McClurg's  Appeal,  58  Pa.  St.  51,  li.  & 

B.  751,  p.  491,  820. 

McConehay  v.   Wright,    121    U.   S.   20, 

p.    143. 
MacConnell    v.    Lindsay,    131    Pa.    St. 

476,  19  Atl.  306,  p.  642. 
IMcCormick  v.   Grogan,   L.   R.   4  H.   L. 

82,  91,  97,   1  Scott  241,  p.  212,  430, 

436. 
McCormick  v.  Stephany,  57  N.  J.  Eq. 

257,   41    Atl.   840,    1    Ames   Eq.    Jur. 

431,  p.  892. 
McCreery  v.  Day,  119  N.  Y.  1,  23  N.  E. 

198,  16  Am.  St.  Rep.  793,  6  L.  R.  A. 

506.  p.   174. 
McCreight  v.  Foster,  L.  R.  5  Ch.  604, 

610,  611,  p.  326. 
McCurry  v.   Cxibson.    108   Ala.   451,   54 

Am.  St.  Rep.   177,   18  South.  806,  p. 

220. 
McCutcheon   v.    Merz   Capsule   Co.,   71 

Fed.  787,  19  C.  C.  A.  108,  31  L.  R.  A. 

415,  p.  501. 
McDaniel  v.  Maxwell,  21  Oreg.  202,  27 

Pac.    952,   28   Am.    St.    Rep.    740,   p. 

764. 
:McDaniel  v.   Stroud,   100   Fed.   480,  45 

C.  C.  A.  446,  p.  383. 

McDonald  v.  Aten,   1   Ohio  St.  293.  p 

673. 
McDonald   v.   Belding,    145   U.   S.   493 

12  Sup.  Ct.  892,  p.  378. 
Macdonald  v.   Irvine,  8   Ch.   Div.    101 

124,  p.  659. 
:\lcDonald  v.   Yungbluth,  46   Fed.   836 

2  Scott  624,  p.  436. 
McDonough   v.    O'Niel,    113    Mass.    92 

Shep.  211,  p.  601. 
McDowell    V.    Melroy,    69    111.    498,    p 

520. 
McDuff,    In   re,    [1896]    2   Ch.    451,   p 

578. 
McElroy  v.  Kansas  City,  21   Fed.  257 

p.   825. 
McElvey   v.    Lewis,    70    N.    Y.    373,   p 

804. 
McFadden   v.   Hefley,   28   S.    C.   317,   5 

S.   E.   812,   13  Am.   St.  Rep.   675,  p 

057. 


972 


TABLE   01'    CASES    CITED. 


McFadden  v.  Jenkyns,  1  Phill.  CIi.  153. 

157,  Ames  Trusts  47,  p.  563,  567. 
.^[cGough  V.  Sweetser,  97  Ala.  361,   12 

South.     162,,    19    L.    R.    A.    470,    p. 

721. 
^IcGowan   v.    Lufborrow,    82    Ga.    523, 

14   Am.   St.   Rep.    178,   9   S.   E.   427. 

p.  782. 
McGowin  v.  Remington,  12  Pa.  (St.  5(i, 

51  Am.  Dec.  584,  1  Scott  00,  H.  &  B. 

637,  p.    100.  882. 
jMacGregor   v.    Tliompson.    7    Tex.    Civ. 

App.  32.  20   S.   W.  049,  p.  312,  354. 
McHenry  v.   Hazard.  45   N.   Y.   580.   2 

Ames   Eq.    Jur.    118.   p.    798,    861. 
McHenry  v.  .Jewett,  90  N.  Y.  58,  H.  & 

B.  743,   p.   814. 

^lacher  v.   Fountlling  Hospital,   1   Vos. 

&    B.    187,    p.    226. 
Alclntosli  V.  (Jreat  West.  R'y,  2  Macn. 

&  G.  74,  p.  472. 
.Alack   V.    Hill,    28    Mont.    99,    72    Pac. 

307,  p.  176,  179. 
Mackay  v.  Douglas,  L.  R.   14  Eq.   106, 

118-121,  p.   532. 
McKay    v.    Ward,    20    Utah,    149,    57 

Pac.   1024,   46  L.   R.  A.  023,  p.   713. 
Mackenzie  v.  Coulson,  L.  R.  8  Eq.  308, 

3  Keener  267,  p.  437. 
Mackenzie  v.   Johnston,   4   Madd.   373, 

1   Ames  Eq.  Jur.  444,  3  Keener  885, 

p.  919. 
McKim   V.    Hihbard,    142   Mass.   422,   8 

X.  E.   152,  p.  620. 
McKinley  v.  Williams,  74   Fed.  94,  20 

C.  C.  A.  312,  36  U.  S.  App.  749,  p. 
518. 

Macknet  v.  Macknet,  29  N.  J.  Eq.  54, 

p.  237,  238. 
Mackreth  v.  IMarlar,  1  Cox,  260.  2  Scott 

328,  p.   900. 
Mackreth    v.    Symmons.    15    Ves.    329. 

336,  349,  354,  1  Lead.  Gas.  Eq.  289. 

1  Scott  71,  p.  319,  745,  749. 
McLane  v.  Placerville.  etc.   R.   Co.,  66 

Cal.  606.  6  Pac.  748.  p.  810. 
McLarren  v.  Brewer,  51   Me.  402.  407, 

H.   &   B.   49.   p.   599. 
McLaughlin   v.   McLaughlin,   20   N.   J. 

Eq.    190,  p.    180. 
MacLaury  v.  Hart.   121   N.  Y.  636,  24 

N.   E.    1013,   p.    133. 


McMahon  v.   Gray,   150  Mass.   289,   15 

Am.   St.   Rep.   202.  22   N.    E.    923.   5 

L.  R.  A.  748.  p.  865. 
McMechan  v.  GritHng,  3  Pick.  149.  154. 

15  Am.  Dec.  189,  198,  p.  277. 
M'Mechan   v.   Warburton,  L.   R.   Ir.,   1 

Ch.    D.    435,    2   Ames   Eq.    Jur.    240, 

p.  859. 
McMillan    v.    Harris,    110    Ga.    72.    35 

S.    E.    3.34,    78   Am.    St.    Rep.   93,    48 

L.  R.  A.  345,  p.  492. 
McMillan   v.   Richards.   9   Cal.   365.   70 

Am.  Dec.  055,  p.  693. 
McMullen  v.  HoflFman,   174  U.  S.   039. 

19  Sup.  Ct.   839,   p.   500. 
McMullin's  Adm'r  v.   Sanders,   79   Va. 

356.    365,    p.    403. 
McMurpliy   v.    Adams,    07    X.    H.    440, 

39  Atl.  333,  p.  282. 
McXaughton    v.    Partridge,    11     Ohio, 

223,   38   Am.   Dec.  731,  2   Ames   Eq. 

Jur.  279,  p.  419. 
McXeil  V.  Tenth  Xat.  Bank,  46  X.  Y. 

325,    7    Am.    Rep.    341,    p.    333,    334, 

398. 
McXeill    V.   Williams,    11    Jur.    345,    1 

Ames  Eq.  Jur.  652,  p.  838. 
McXulta  V.  Lockridge,   141   U.  S.  327. 

12  Sup.  Ct.  11,  p.  809. 
McPherson  v.  Cox,  96  U.  S.  404,  24  L. 

ed.   746,  p.  624. 
^McQueen  v.  McQueen,  2  Jones  Eq.   10. 

02  Am.  Dec.  205,  p.  237. 
McRae  v.  Bowers  Dredging  Co.,  80  Fed. 

344.  p.   808. 
Mactier  v.   Osborn,   146  Mass.   399,    15 

X.   E.   641,   4  Am.    St.   Rep.   323,   p. 

225. 
:\rcTwiggan    v.    Hunter.    18    R.    I.    770, 

30   Atl.    062,   2   Ames   Cas.    Eq.    Jur. 

71,  p.   116. 
McVay  v.  McVay,  43  X.  J.  Eq.  47,  10 

Atl.  178.  H.  &  B.  370,  p.  567. 
McVey    v.    Brendel,    144    Pa.    St.    235, 

22  Atl.  912,  29  Wkly.  Xotes  Cas.   1, 

27   Am.    St.    Rep.    625,    13   L.   R.    A. 

377,    p.    494. 
Maddison  v.  Alderson,  8  App.  Cas.   (H. 

L.)     4(;7.    1    Ames    Eq.    Jur.    295.    2 

Scott  210,  2  Keener  675.   Shep.  287, 

p.  900,  901.  002.  903. 
Maddox   V.    White.   4   Md.    72,   59   Am. 

Dec.  67,  p.  827. 


TABLE    OF    CASES    CITED. 


973 


]\lapin  V.  Lamb,  43  Minn.  80,  44  X.  \V. 

075,    in    Am.    St.    Rep.    21<),    p.    855. 
JIajor   V.    Lanslpy,   2    Russ.   &   M.   355, 

357,  p.   040. 
JMakeel   v.   Hotchkiss,   100   111.   311,   83 

Am.  St.  Rep.   131,  00  N.   E.  524,  p. 

916. 
JMakepiece   v.   Rogers,    11    Jur.,   X.    S., 

215,   3    Keener   DIG,   p.    919. 
]\Iakesey  v.   Ramseys,  9  Clark  &  Fin- 

elly,   818,   Ames  Trusts,    13,   p.    569. 
Malcolm    v.    Allen,    49    X"".    Y.    448,    p. 

218. 
Malim    v.    Keighley,   2    Ves.    333,   335, 

Ames  Trusts  83,  p.  571. 
]\Ialins  V.  Freeman,  2  Keen,  25,  1  Ames 

Eq.  Jur.  383,  2  Keener  933,  2  Scott 

272,  p.  432. 
Mallin   v.    Wenham,  209   111.   252,    101 

Am.    St.    Rep.    233,    70    X.    IZ.    564, 

p.  771. 
Malloiy    V.    Mallory-Wheeler    Co.,    61 

Conn.   135,  23  Atl.  708,  p.  517. 
Mandeville    v.    Welch,    5    Wheat.    277, 

280,   5   L.   ed.   87,   p.   765. 
■Mangold   v.   Barlow,   61   Miss.   593,   48 

Am.  Rep.  84,  p.  294. 
^Manhattan   Iron   Works  v.   French,   12 

Abb.    X.    C.    446,    2    Ames    Eq.    Jur. 

107,  p.  823. 
:\Ianliattan    Mfg.    &    F.    Co.    v.    X.    J. 

Stock   Yard   etc.    Co.,   23    X.   J.    Eq. 

161,  H.  &  B.   747,  2  Keener  568,  p. 

820. 

Mann   v.   Appel,   31    Fed.   378,   383.   p. 

144,  910. 
Mann  v.  Jackson,  84  Me.  400,  30  Am. 

St.   Rep.  358.  24  Atl.  886,   16  L.  R. 

A.    707.   p.   489. 
Mann  v.  Willey,  51  App.  Div.    (X.  Y.) 

1()9,    64    X.    Y.    Supp.    589,    1    Ames 

Eq.  Jur.  572,  affirmed  108  X.  Y.  664, 

61  X.  E.  1131,  p.  830,  831.  834. 
Manners  v.  Phila.  Librarv  Co.,  93  Pa. 

St.   165,  39  Am.  Rep.  741,  p.  .576. 
Manning  v.   Cill,  L.  R.   13   Eq.   485,  p. 

505. 
Manning  v.  Manning,  1  Jolnis.  Ch.  530, 

1  Scoti    147.  p.  32. 
Manser  v.  Back,  6  Hare,  443,  2  Scott 

274,  p.  431,  432. 


Mansfield  v.  Dameron,  42  W.  Va.  794, 

57  Am.  St.   Rep.  884,  26  S.  E.   527, 

p.  754. 
Mansfield  v.   Lynch,   59  Conn.   320,  22 

Atl.   313,   12   L.   R.   A.   285,   p.    425. 
:\ransfield  v.  Slierman,  81   Me.  365,   17 

Atl.    300,    1    Ames    Eq.   Jur.    385,    2 

Keener   995,   2   Scott   281,   p.   43.1. 
^Marble   Co.    v.    Ripley.    10    Wall.    339, 

356,   357,    19   L.   ed.    955,   Shep.    112, 

p.  184,  888,  893,  895. 
Marbury  v.  Elilen,  72  .Aid.  206,  19  Atl. 

648,  20  Am.  St.  Rep.  407,  p.  282. 
^larks  V.  Tichenor,  85  Ky.  536,  4  S.  W. 

225,  2  Keener  430,  H.  &  B.   002,  p. 

162. 
Maroney  v.   Boyle,    141   X'.  Y.  462,  36 

X.  E.  511,  38  Am.  St.  Rep.  821,  p. 

748. 
Marselis  v.  Morris  Canal  Co.,   1  X.  J. 

Eq.    31,    35-39,    p.    121. 
Marsh   v.    Cook,   32    X.   J.   Eq.   262,   3 

Keener   070,   p.   402. 
Marsh  v.    Falker,   40   X'.   Y.    562,   566, 

p.  453. 
Marsh    v.    Kaye,    168    X.    Y.    196,    61 

X.    E.    177,    2    Ames    Cas.    Eq.    Jur. 

89,  p.  65. 
ilarsh  V.  Reed.  10  Ohio,  347,  1  Keener 

151,  p.   108. 
Marshall  v.  Baltimore  &  0.  R.  R.,   16 

How.  314,  p.  495. 
Marshall   v.    Westrope,    98    Iowa,    324, 

67  X.  W.  257,  H.  &  B.  208.  3  Keener 

166,  p.  418. 
Marshall  etc.  Bank  v.  Cady,  75  Minn. 

241,  77  X.  W.  831,  H.  &  B.  864,  p. 

805. 
Martin  v.  Bowen.  51  X.  J.  Eq.  452,  26 

Atl.  823,  p.   358,  361. 
Martin  v.  Funk,  75  N.  Y.  134,  31  Am. 

Rep.  446,  448,  H.  &   B.  393,  p.  550, 

559,   561,   568. 
Martin  v.  Graves,  5  Allen.  601,  2  Amos 

Eq.  Jur.  137,  p.  861,  875. 
Martin  v.  Maine  Cent.  R.  Co.,  93  :\Ie. 

100,  21  Atl.  740,  p.  389. 
^lartin  v.  Martin,  170  111.  639,  02  Am. 

St.   Rep.  411,  48  N.  E.   924,  p.  869. 
:\Iartin   v.   Melville,   11   X.   J.   Eq.  222, 

]).   218. 
:\Iartin  v.   Price,   [1894]    1   Ch.  276,   1 

.\mes  Eq.  Jur.  557,  p.  834. 


974 


TABLE   OF    CASES    CITED. 


Martin  v.  Pycroft,  2  De  Gex,  M.  &  G. 

785,  800,  p.  433. 
Martin    v.    Robinson,    67    Tex.    368,    3 

S.    W.    550,    p.    476. 
Martinetti  v.   Maguire,    1    Deady   216. 

p.   838. 
Marvin  v.  Brooks,  94  N.  Y.  71,  3  Keen- 
er 924.  p.  918,  919. 
Mason  v.  Armitage,  13  Ves.  25,  1  Ames 

Eq.  Jur.  374,  2  Keener  930,  2  Scott 

270,   p.   430,   431. 
Mason   v.   Harris,    L.   R.    11    Ch.    Div. 

97,   107,   p.   633. 
Massey  v.  Rowen,  L.  R.  4  H.  L.  288, 

301,  p.  639. 
Massey    v.    Westcott,    40    111.    160.    p. 

342. 
Massi  V.   Lavine,    (Midi.)    102   X.   W. 

665,  1  Scott  286,  p.   185. 
Massie  v.  Watts,  6  Cranch,  148,  Shep. 

82,   p.   208. 
Master    v.    Miller,    4    Term    Rep.    320, 

340,  341,  p.  759. 
Masury    v.    Arkansas    Nat.    Bank,    93 

Fed.  603,  35  C.  C.  A.  476,  reversing 

87   Fed.   381,  p.  327. 
Mathews    v.    \Yarner,    6    Fed.    461,    p. 

497. 
Matthewman's  Case,  L.  R.   3   Eq.   781, 

787.  p.   650. 
Matthews  v.  Gadd,  5  South.  Austr.  L. 

R.  129,  1  Ames  Eq.  Jur.  193,  p.  162. 
Matthews   v.   Terwilliger,   3    Barb.    50, 

p.  431. 
Maul   V.    Rider,   59   Pa.   St.    167.    171, 

172,  p.  296. 
Maxwell   v.   Hyslop,  L.   R.   4  Eq.   407, 

p.    233. 
Maxwell  v.  Lady  Mountacute,  Prec.  Ch. 

526,  1  Scott  461,  p.  701. 
Maxwell  v.  Maxwell,  2  De  Gex,  :M.  & 

G.    705,   713,    16   Beav.    106,   p.   233. 
]\Iay  V.  Cleland,  117  Mich.  45,  75  X.  W. 

129,  44  T,.   R.   A.    163,  p.   327. 
May  V.  May,   167  U.  S.  310,   17   Sup. 

Ct.  824,  42  L.  ed.   179,  p.  624. 
May    V.    Piatt,    [19001     1    C^i-    ^Ifi-    2 

Ames   Eq.   Jur.   300,   p.   433. 
Mayer    v.    Gowland,    2    Dick.    563.    2 
Scott  408,   1    Ames  Eq.  Jur.   105,  p. 
164. 
Mayham   v.   Coombs,   14   Ohio,   428,   p. 
343. 


Mayor    of    Baltimore   v.    Gill,    31    Md. 

375,   p.   822. 
Mayor  of  New  York  v.  Brady,   115  N. 

Y.  616,  22  N.  E.  237,  p.  851. 
?iIayor  of  Wolverhampton  v.  Emmons, 

[1901]   1  K.  B.  515,  1  Ames  Eq.  Jur. 
7().  !>.   887,  888. 
]Mayor  of   York  v.   Pilkington,   1    Atk. 
282,    283,    2    Ames    Eq.    Jur.    55,    1 
Keener  114,  p.  111. 
Mays  v.  Rose,  Freem.  Ch.   (Miss.)   718, 

Shep.   32,   p.   802,   806,  808. 
Mays  V.  Taylor,  7  Ga.  238,  243,  244,  p. 

98. 
]Meaeham  v.   Bunting,   156  111.   586,  41 

X.  E.   175,  47  Am.  St.  Rep.  239,  28 

L.  R.  A.  618,  p.  644. 
Mead  v.   Bunn,  32   N.  Y.  275,   p.   459. 
:Mead  V.   Mitchell,    17   N.   Y.   210,    214, 

72  Am.  Dec.  455,  p.  868. 
Mee  V.  Benedict,  98  Mich.  260,  39  Am. 

St.  Rep.  543,  57  N.  W.  175,  22  L.  R. 

A.  641,  p.  868. 
Meech  V.  Ensign,  49  Conn.  191,  44  Am. 

Rep.   225,  p.   712. 
:\Ieelian   v.    Williams,   48   Pa.   St.   238, 

p.  279. 
Meeker  V.  Warren,  (N.  J.  Eq.)   57  Atl. 

421,  p.  342. 
3ileguire  v.  Corwine,  101  U.  S.   108,  p. 

494. 
Meier  v.   Hess,  23   Oreg.   599,  32   Pac. 

755,   p.   325. 
]Melms  V.  Pabst  Brewing  Co.,  93  Wis. 

140.  153,  66  N.  W.  244,  518,  57  Am. 

St.  Rep.  899,  p.  476. 
Memphis   &   C.   R.   R.   Co.  v.  Grayson, 

88  Ala.   572,   7    South.    122,   16   Am. 

St.   Rep.   69,  p.   402. 
^Memphis    &    C.    R.    Co.    v.    Woods,    88 

Ala.    630,    16    Am.    St.    Rep.    81,    7 

Soutli.  108,  7  L.  R.A.  605. 
:\lenk1er  v.  U.  S.  Sheep  Co.,  4  X.  Dak. 

507,    62    X^    W.    594,    33    L.    R.    A. 

546.  p.   911. 
Mercantile   Nat.    Bank   v.   Parsons,   54 

Minn.  56,  55  N.  W.  825,  40  Am.  St. 

Rep.  299,  p.  266,  282. 
Mercantile  Trust   Co.   v.   Missouri,   K. 

&  T.  R.  Co..,  36  Fed.  221.  1  L.  R.  A. 

397.    p.    807. 
Merced   Min.    Co.    v.    Fremont,    7    Cal. 

317,  319,  68  Am.  Dec.  262,  p.  873. 


TABLE    OF    CASES    CITED. 


975 


flerchants   &  M.   X.   Bank  v.   Barnes, 

18  Mont.   335,  48  Pac.  218,  56  Am. 

St.    Rep.    58(5,    47    L.    R.    A.    737,    p. 

70G. 
Merchants'   Bank  v.   Weill,   163   N.   Y. 

486,  79  Am.  St.  Rep.  605,  57  N.  E. 

749,   p.  350. 
Merchants'  etc.  Nat.  Bank  v.  Kent  Cir. 

J.,   43   Mich.   292,   5   N.   W.   627,  H. 

&  B.  855,  p.  808. 
Merchants'  Nat.  Bank  v.  Paine,   13  R. 

1.  592,  1  Scott  136,  p.  912. 
Meredith  V.  Heneage,  1  Sim.  542,  550, 

551,   553,  p.   573. 
Merrill  v.  Beckwith,  163  Mass.  503,  10 

N.   E.   855,   1   Ames  Eq.   Jur.    19,   p. 

207. 
?:  V.    Wilson,    60   Mich.    232,    33 

N.  W.  716,  p.  475. 
Merrill  v.   Wright,    (Nebr.)    91   N.   W. 

697,   p.   287. 
^Nlerriman   v.   Miles,   54   Nebr.   5()6,   74 

N.  W.  861,  69  Am.  St.  Rep.  731,  p. 

712. 
Merriman  v.  Walton,   105  Cal.  403,  45 

Am.   St.   Rep.   50.   38   Pac.    1108,   30 

L.  R.  A.  786,  p.  854. 
Merritt.v.  Buchnam,  78  Me.  504,  7  Atl. 

383,  p.  744. 
Metcalf  V.  Hervey,   1   Ves.   Sr.  248,    1 

Keener   203,   p.   797. 
Metcalfe   v.   Hutchinson,   L.   R.    1    Ch. 

Div.   591,  p. '744. 
Metliodist  Episcopal  Churcli  v.  Jackson 

Square  Evangelical   Church,   84  Md. 

173,   35   Atl.   8,   p.   588. 
Meth.    Epis.    Ch.    v.    Jaques,    3    Johns. 

Ch.  77,  90-92,   1   Scott  68,  p.  640. 
Methven  v.  Staten  Island  L.,  H.  &  P. 

Co.,  66  Fed.  113,  13  C.  C.  A.  362,  35 

U.    S.    App.    67,    p.    323. 
Metler's   Adm'rs   v.    Metier,    18    N.    J. 

Eq.    270,    19   N.   J.    Eq.    4.57,   p.    73. 
Metropolitan  El.  Supply  Co.  v.  Gender, 

[1901]  2  Ch.  799,  p.  819. 
Metropolitan  Exhibition  Co.  v.  Ewing, 

42  Fed.  18,  7  L.  R.  A.  381,  H.  &  B. 

631,   p.   819,   886. 
INIeux  V.   Cobley    [1892]    2   Ch.  253,   1 

Scott  665,  p.  828. 
Meyer   v.    Phillips,   07    N.   Y.    485,   49 

Am.   Rep.    538,   p.   833. 


Meyers  v.    Farquharson,   46   Cal.    190, 

p.   673. 
Mich.  Paneling  M.  &  M.  Co.  v.  Parcell, 

38   Mich.    475,   480,    p.    401. 
Michigan   Pipe  Co.   v.   Fremont  Ditch, 

Pipe  Line  &  Reservoir  Co.,  Ill   Fed. 

284,   49   C.    C.   A.   324,   p.    182,    183, 

184. 
Michoud   V.    Girod,    4    How.    503,    561, 

Shep.  181,  p.  476,  515,  526. 
Mickles  v.  Dillaye,  17  N.  Y.  80,  Kirch. 

526,  p.  719. 
Micklethwait  V.  Micklethwait,  1  De  Gex 

&  J.  504,  p.  828. 
Micklethwaite  v.   Atkinson,   1   Coll.   C. 

C.  173,  p.  78. 
]\Iiddleton    V.    Spicer,    1    Br.    CJh.    Cas. 

201,  Ames  Trusts  364,  p.   552. 
Mildred  v.  Austin,  L.  R.  8  Eq.  220,  p. 

721. 
Miles  V.  Dover  Furnace  Iron  Co.    125 

N.   Y.   294,  26   N.   E.  261,  2   Keener 

1048,  p.   894. 
Miles  V.  Miles,   (Miss.)   37  South.   112, 

p.  426. 
Milhaus  v.   Sally,  43  S.  C.  318,  21   S. 

E.   268,   885,   49   Am.   St.   Rep.    834, 

p.   186. 
Milkman    v.    Ordway,    106    Mass.    232, 

253,  1  Scott  119,  p.  99,  100. 
Miller  v.  Ball,  64  N.  Y.  2S(),  2  Keener 

657,  2  Scott  196,  p.  902. 
Miller   V.    Cook,   L.   R.    10    Eq.    641.    p. 

511. 
Miller  v.  Merine,  43   Fed.  261.  p.  318. 
Miller  v.  Miller's  Adm'i,  92   Va.   510, 

23  S.  E.  891,  p.  638. 
Miller  v.   Sauerbier,  30  N.   ,T.   Eq.   71, 

p.   527. 
j\liller  V.   Scammon,    [1873]    52   N.    H. 

609,    H.    &   B.    265,    p.    93.    95,    473, 

474. 
Miller   v.   Thurgood,   33   Beav.   496,   p. 

234. 
Miller    Brewing    Co.    v.    Manasse,    99 

Wis.    99,    67    Am.    St.   Rep.    854,    74 

N.   W^   535,  p.   351. 
Mills  v.  Harris.   104  N.  C.  626,   10  S. 

E.   704,  p.   680. 
Milnes   v.    Gery,    14   Ves.    400,    403,    2 

Keener  111.  p.  779,  886,  897. 
Milroy  v.  Lord,  4  De  Gex,  F.  &  J.  204, 

274,  Ames  Trusts   149,  p.   559,   560. 


976 


TABLE   OF    CASES   CITED. 


Milwaukee  &  Minn.  R.  R.  Co.  v.  Sout- 

ter,  2  Wall.  521,  p.  802,  807. 
Miner  v.  Atherton's  Ex'rs,  35  Pa.   St. 

528,  537,  p.  247. 
Aliiier  V.   Belle  Isle  Ice  Co.,  93  Mich. 

97,  53   X.   W.   218,   p.   806. 
]Mingiis  V.  Daugheity,  87  loAva,  56,  43 

Am.   St.   Rep.   354,   54  X.   W.   66,   p. 

916. 
Minneapolis,  etc.  R.  R.  Co.  v.  Cox,  7() 

Iowa,  306,   14  Am.  St.  Rep.   216,  p. 

892. 
Minns   v.    Billings,    183   Mass.    126,   97 

Am.  St.  Rep.  420,  66  N.  E.  593,  p. 

577. 
Minot    V.    Baker,    147    Mass.    348,    17 

N.   E.   839,   9  Am.   St.   Rep.    713.   p. 

581,   582. 
Minot  V.  Martin,  95  Fed.  734,  37  C.  C. 

A.  234,  p.  809. 
:\linot    V.    Taylor,    129    Mass.    160.    p. 

676. 
jSIinturn  v.  Seymour,  4  Johns.  Ch.  497. 

1  Scott  302,  p.  173. 
^Missouri,  K.  &  T.  Trust  Co.  v.  Krum- 

seig,    172    U.    S.    359,    19    Sup.    Ct. 

179,  s.  c,   77    Fed.   32,   23   C.   C.   A. 

I,  40  U.  S.  App.  620,  p.  179,  501. 
Mitchel  V.   Reynolds,   1   P.   Wms.    181, 

1  Smith's  Lead.  Cas.  705,  p.  491. 
Mitchell    V.    Denson,    29    Ala.    327.    65 

Am.  Dec.  403,  p.  410,  411. 
:\Iitchell  V.   Dors,   6   Yes.    147,   1    Scott 

682,  I  Ames  Eq.  Jur.  488,  I  Keener 

543,  p.   842. 
Mitchell    V.    C4reene,    10    Met.    101,    p. 

93. 
]Mitehe]l   v.   Hayne,   2    Sim.    &    St.    63. 

2  Ames  Eq.  Jur.   12,   1   Keener  292. 
p.   794,  795. 

Mitchell  V.  Ladew,  36  Mo,  526,  88  Am. 

Dec.   156,  p.  706. 
Mitchell  V.  McDougall,  62  111.  498,  H. 

&  B.  279,  p.  467. 
Mitchell    V.    Reed,   61    N.    Y.    123,    139, 

19  Am.  Rep.  252,  H.  &  B.  48,  p.  600. 
Mitchell  V.  Smith,  1  Paige,  287,  Shop. 

346,  p.  77. 
^Mitchell  V.  Winslow,  2  Stoiy,  630,  Fed. 

Cas.  Xo.  9.67.3,  p.  770. 
Moale  V.  Buchanan,   11   Gill  &  J.   314. 

325,  p.  434. 


Moelle.v.   Sherwood,   148  U.  S.  21,   13 

Sup.  Ct.  426,  p.  363,  364. 
Moetzel    &   Muttera   v.   Koch,    (Iowa) 

97  X.  W.  1079,  p.  508. 
.Mogg  V.  Mogg,  Dick.  670,  1  Scott  679, 

1  Ames  Eq.  Jur.   186,  1  Keener  532, 

p.  841. 
Mollineux  V.   Powell,  3   P.   Wms.   268, 

n.     (F),    1    Ames    Eq.    Jur.    468,    1 

Scott  664,  p.  827,  828,  829. 
Molony  v.  Scanlan,  53  111.  122.  p.  244. 
?kIonahan   V.   Monahan,    (Yt.)    59    Atl. 

169.  p.  592. 
Moncricf    v.    Ross,    50    X.    Y.    431.    3 

Keener  960,  p.  677,  681. 
Monotuck    Silk    Co.    v.    Flanders,    87 

Wis.    237,   58    X.   W.    383,   H.    &    B. 

468,  p.  598. 
^lonroe  v.  Armstrong,  96  Pa.  St.  307, 

p.  226. 
Montacute  v.  IMaxwell,  1  P.  Wms.  618, 

1   Strange,  236,  I  Eq.  Cas.  Abr.   19, 

1   Ames  Eq.  Jur.  27,  2  Keener  623, 

p.  449,  904. 
INlontagu   v.   Earl    of   Sandwich,   L.   R. 

32  Ch.  Div.  525,  p.  250. 
?ilontague    v.    Flockton,    L.    R.    16    Eq. 

189,    1    Ames    Eq.   Jur.    105,   2   Scott 

107,    2    Keener    246.    H.    &    B.    622, 

p.  819. 
^lontana  Ore-Purchasing  Co.  v.  Boston. 

6  :^I.  Consol.  C.  &  S.  Min.  Co..  27 
Mont.  536,  70  Pac.  1114,  71  Pac. 
1005,   p.   .54. 

:\lontford  v.  Cadogan,  17  Yes.  485,  489, 

19  Yes.   035,  638,  p.  567. 
Montgomery   v.    Keppel,    75    Cal.    128, 

7  Am.  St.  Rep.  125,  19  Pac.  178,  p. 
267. 

]\Ioody  V.   Wright,   13  Met.   17,  32,   46 

Am.  Dec.  706,  Kirch.  .54,  p.  769. 
INloor   V.    Black,   Cas.   t.   Talb.    126,    p. 

864. 
Moore  v.   Baker,  4  Ind.   A])p.    115.   51 

Am.   St.  Rep.  203,  30  X.  E.   629,  ].. 

232. 
Moore  v.  Cable,  1  Johns.  Ch.  385,  387, 

388,  Kirch.  524,  p.  719,  742. 
Moore  v.  Crawford,  130  U.  S.  122.  128. 

9  Sup.  Ct.  Rep.  447,  32  L.   ed.   878. 

p.  602. 
■\loore  V.  Dart  on.  4  De  Gex  &  S.   517, 

Ames   Trusts   39,   p.   563,   667. 


TABLE  or  ca<j:s  cited. 


977 


Moore  v.  Dumaui,  63  X.  J.  Eq.  90,  51 

Atl.  449,  p.  408. 
:Moore  v.  Alclntyre,  110  Mich.  237,  68 

X.  W.   130,  p.   133. 
Moore  v.  Metropolitan  Bank,  55  X.  Y. 

41,  40-49,   14  Am.  Rep.   173,  p.  334, 

335. 
Moore  v.  Moore.  112  Ind.  149,  13  X.  E. 

673,  2  Am.  St.  Rep.  170,  p.  333. 
Moore  v.  Page,   111  U.  S.   117,  4  Sup. 

Ct.  388,  28  L.  ed.  373,  p.  638. 
Moore    v.    Sargent,    117    Ind.    484,    14 

X.  E.  466,  p.  218. 
]\Ioore  V.  Williams,  115  X.  Y.  586.   12 

Am.  St.  Rep.  844,  5  L.  R.  A.  654,  2 

Keener  1144,  p.  895. 
Jloores  V.  Townshend^   102   X.  Y.   387, 

7  X.  E.  401,  1  Keener  355,  p.  876. 
:\loran    v.    McLarty,    75    X.    Y,    25,    3 

Keener  280,  p.  438. 
iloreland    v.    Atchison,    19    Tex.    303. 

Shep.   155.  p,  421. 
Morgan  v.  :Ma]leson,  L.  R.  10  Eq.  475, 

Ames  Trusts   129,  p.   559,  561. 
Morgan  v.  Marsack,  2  Mer.  107,  1  Kee- 
ner 273,  p.  791. 
:Morgan   v.   [Minett,   L.   R.    6   Ch.    Div. 

638,  p.  519. 
Morice   v.    Bishop    of   Durham,    9   Ves. 

399,  405,  10  Ves.  521,  .522,  541,  Ames 

Trusts  195.  p.  574,  578,  587. 
:\Iorland  v.  Cook,  L.  R.  6  Eq.  252,  263. 

265,  p.  273. 
Morley  v.  Loughnan,  [1893]   1  Ch.  736, 

3  Keener  833.  p.  522. 
Morley  v.  Morley.  5  De  Gex,  M.  &  G. 

610.  p.  384,  386. 
Mdiinon  Church  v.  United  States,   136 

r.   S.   ].   10  Sup.  Ct.  792,  34  L.  ed. 

478.  p.    143,  582. 
Morphett  v.   Jones,   1    Swanst.    172,   p, 

901. 
Morrill  v.  Xoyes,  56  Me.  458,  471,  96 
Am.  Dec.  486,  Kirch.  92,  p.  771,  808. 
^Morrill    v.    Weeks,    70    X.    H.    178,    46 

Atl.   32,  p.  220. 
]\Iorris  v.  Budlong.  78  X.  Y.  543,  552,  ; 

Kirch.   559.   p.   702.  i 

Morris   v.    Column.    18   Ves.   436.    437.  | 

1    Ames  Eq.   Jur.    S9.   2    Scott    87,   2 

Keener  197.  p.  819. 

Morris   v.    Crifliths.    26    Ch.    Div.    601, 

3    Keener    955,    p.    680. 
62 


Morris    v.    Joyce,    63    X.    J.    Eq.    549, 

53   Atl.   139,  p.   397. 
Morrison  v.   Herrick,    130   111.   631,   22 

X.  E.  537,  2  Keener  706,  p.  902. 
Morrison   v.    Rogers,    115   Cal.   252,    4(i 

Pac.    1072,   5()   Am.    St.   Rep.    95,    \,. 

487. 
Morse  v.   Curtis,   140  Mass.   112,  2   X. 

E.  929,  54  Am.  Rep.  456,  p.  368. 
^Nlorse  v.  Slason,  13  Vt.  296,  p.  672. 
Mortimer    v.    Cottrell,    2    Cox    205,    1 

Scott  681,  p.  842. 
ilortimer  v.   Latimer.    11    -Jurist.    721. 

Ames  Trusts.  508.  p.  611. 
Mortlock  V.   Buller,    10  Ves.  292,   30."). 

300,  p.  779. 
Moser    v.    Cochrane,    107    X.    Y.    1,    2 

Keener  1143,  p.  895. 
Moses  V.  Johnson,  88  Ala.  517,  16  Am. 

St.  Rep.  58,  7  South.   146,  p.  754. 
Moses  V.  Murgatroyd,  1  Johns.  Ch.  119, 

129,    7   Am.   Dec.   478,   p.    556. 
Mosley  v.  Ward,  29  Beav.  407,  p.  230. 
Moss   V.    Odell,    141    Cal.    335,   74    Pac 

999,  p.  719. 
Mossop  V.  Eadon,  16  Ves.  430,  433,  434. 

p.  408. 
Mott   V.    Buxton,    7    Ves.   201,    p.    570. 
Mountain  Copper  Co.  v.  U.  S.,  142  Fed. 

625,   1   Scott  759,  p.  832. 
iMoiuit    Holly    etc.    Co.    v.    Ferree,     17 

X.  .J.  Eq.   117,  p.  327. 
:Moxon  V.   Bright,   L.   R.   4   Ch.   292.   1 

Ames  Eq.  Jur.  450,  3  Keener  918.  ji. 

919. 
IMoyer   v.    Hinman,    13    X.    Y.    180,    17 

Barb.  137,  2  Keener  344.  p.  344. 
31uir   V.    Berkshire,    52    Ind.    149,    151, 

p.   717. 
Muir  V.   Schenck,  3  Hill,  228,  38  Am. 

Dee.  633,  Shep.  106,  p.  195,  325,  328, 

337,   338. 
Mulford  V.  Minch.  11  X.  J.  Eq.   16,  64 

Am.  Dec.  472,  p.  515. 
ilulholland  v.  Washington  ]\Iatch  Co., 

(Wash.)   77  Pac.  497,  p.  449. 
Mullanphy    Sav.    Bank   v.   Schott,    135 

111.   655,   26   X.    E.   640,   25   .\m.   St. 

Rep.  401,  p.  351. 
Mullen   V.   Wilson,  44   Pa.   St.   413,   84 

Am.   Dec.  461,  p.  522. 
Muller  V.   ^^adlington,  5  S.   C.  342,  p. 

715. 


978 


TABLE   OF    CASES    CITED. 


Muller's  Adm'rs  v.  Stone,  84  Va.  834, 

10   Am.    St.    Rep.    889,   and   note,    tj 

S.  E.  223,  p.  558. 
Mullett  V.  Halfpenny,  Prec.  in  Ch.  404. 

1  Ames  Eq.  Jur.  315,  p.  905. 
MiiUins    V.    Butte    Hardware    Co.,    25 

Mont.  525,  65  Pac.  1004,  87  Am.  St. 

Rep.  430,  p.  275,  276,  277,  366. 
MuUins  V.   Smitli,   1   Drew.   &   S.   204. 

210,  p.  663. 
Mulock  V.  Mulock,  31   N.  J,  Eq.   594, 

p.  522. 
Mumford  v.   Stohwasser,  L.  R.   18  Eq. 

556,  562,  563,  p.  346,  347. 
Mundy  v.  Jolliffe,   5  Mylne  &   C.   167, 

177,  1  Ames  Eq.  Jur.  289,  p.  779,  902. 
Mundy  v.  Mundy,  2  Yes.   122,   128,  p. 

865. 
Munn  V.  Burges,  70  111.  604,  p.  515. 
Munson  v.  Syracuse,  G.  &  C.  R'y  Co., 

103  X.  Y.  58,  8  X.  E.  355,  H.  &  B. 

531,  p.  523. 
Alurdock  v.  \Yalker,  152  Pa.  St.  595, 

34  Am.  St.  Rep.  678,  25  Atl.  492, 

Lewis    247,    p.    846. 
Murphy  v.  Barnard,   162  Mass.  72,  44 

Am.   St.   Rep.   340,   38   X.   E.   29,   p. 

350,  351. 
Murphy  v.  Christian,  etc.  Co.,  38  App. 

Div.    (X.  Y.)    426.   1  Ames  Eq.  Jur. 

157,  2   Scott,  p.   777. 
Murphy    v.    Green,    120    Ala.    112,    22 

South.  112,  p.  344. 
IMurphy's   Estate,    In   re,    184    Pa.    St. 

310,    39    Atl.    70,    63    Am.    St.    Rep. 

802,  p.   579. 
Murray   v.    Ballou,    1    Johns.    Ch.    566, 

576,   581,   615,    1    Scott   520,   p.   284, 

285,  597. 
Murray  v.  Barlee,  3  Mylne  &  K.  209, 

220,   223,   p.    504,   651. 
Murray  v.  Dake,   46   Cal.   644,   p.   428. 
Murray  v.  Lylburn,  2  Johns.  Ch.  441, 

443,    1    Scott   526,   p.   284,   286,   287, 

338,   601. 
Musch   V.  Burkhart,   83   Iowa,   301,  32 

Am.  St.  Rep.  305,  48  X.  \Y.  1025,  12 

L.  R.   A.   484,   p.   843. 
Muscogee  Lumber  Co.  v.  Hyer,  18  Fla. 

698,  43  Am.  Rep.  332,  p.  623. 
Musgrove   v.    Gray,    123    Ala.    376,    82 

Am.    St.    Rep.    124,    26    South.    643, 

p.  809. 


Mussehnan   v.   IMarquis,    1    Bush,   463, 

89  Am.  Dec.   637,   1   Keener   193,   p. 

844. 
flyers   v.    Sierra   Val.    Stock   &    Agric. 

Ass'n,   122  Cal.  669,  55  Pac.  689,  p. 

55,   65. 


N. 


Xaddo   V.    Bardon,   51    Fed.   493,   2   C. 

C.    A.    335,    4    U.    S.    App.    642,    p. 

198,  199. 
Xash  V.  Minnesota  etc.  Co.,  163  Mass. 

574,  47  Am.  St.  Rep.  489,  40  X.  E. 

1039,  28  L.  R.  A.  753,  p.  451. 
Xashville    Trust    Co.    v.    Smj-the,    94 

Tenn.  513,  45  Am.  St.  Rep.  748,  29 

S.  W.  903,  p.  329,  706. 
X^ational  Bank  of  Augusta  v.  Carolina 

etc.    R.    Co.,    63    Fed.    25,    p.    810. 
Xational   Bank  of  Commerce  v.   Mor- 
ris,   114  Mo.   255,   35   Am.    St.   Rep. 

754,    21    S.    W.    511,    19    L.    R.    A. 

463,  p.   281. 
Xat.    Bank   of   Metropolis   v.   Sprague, 

20  X.  J.  Eq.  159,  p.  492. 
Xational  Biscuit  Co.  v.  Baker,  95  Fed. 

135,  p.  840. 
Xational   Exch.   Co.  v.  Drew,  2  Mac(i. 

103,   125,  p.  448. 
Xational  Life  Ins.  Co.  v.  Pingrey,  141 

Mass.   411,   2   Ames   Eq.   Jur.    37,    1 

Keener  259,  p.  793. 
Xational    Park    Bank    v.    Goddard.    62 

Hun,    31,    16    X.    Y.    Supp.    343.    2 

Ames   Cas.   Eq.   Jur.   82,    131    X.    Y. 

503,  30  X.  E.  566,  Keener's  Cas.  Eq. 

Jur.  142,  p.  118. 
Xational  Protective  Ass'n  v.  Curaming, 

170  X.  Y.  315,  88  Am.  St.  Rep.  648, 

63   X.   E.   369,   58  L.   R.   A.    135.   p. 

847. 
Xational  Yalley  Bank  v.  Hancock,  100 

Va.   101,   107,   93  Am.   St.  Rep.   933, 

938,  57  L.  R.  A.  728,  729,  40  S.  E. 

611,  p.  784. 
Xaylor   v.    Winch,    1    Sim.   &   St.    555, 

564,  2  Scott  576,  p.  420,  425. 
Xeal  V.  Bleckley,  51  S.  C.  506,  29  S.  E. 

249,  p.  550. 
Xeale   v.    Cripps,   4    Kay   &   J.    472.    1 

Ames   Eq.   Jur.   498,    1   Keener   602, 

p.  842. 


TABLE   OF    CASKS    CITED. 


979 


Neale  v.   Neale,   9   Wall.    1,    H)   L.   ed. 

590,  2  Keener  647,  p.  904. 
Neblett   v.   Macfailand,   92   U.   S.    101, 

3  Keener  693,  p.  462,  470,  471. 
Negley  v.  Lindsay,  67  Pa.  St.  217,  228, 

5  Am.  Rep.  427,  p.  475. 
Neill    V.    Morley,    9    Ves.    478.    482. 
Neilsou    V.    McDonald,    6    Jolms.    Cli. 

201,    1   Scott  482,   3   Keener  751,   p. 

470,  507. 
Neininger   v.    State,   50   Ohio   St.    394, 

34    N.    E.    633,    3    Keener    358,    p. 

436. 
jN'elson    V.    Brown,     140    Mo.    580,    41 

S.  W.   960,  62  Am.  St.  Rep.  755,  p. 

712. 
Kelson    v.    Milligan,    151    111.    462,    38 

N.  E.  239,  p.  831. 
Kelson    v.    Owen,     113    Ala.    372,    21 

South.  75,  p.  735. 
Kesbit  ■  V.    Lockman,    34    N.    Y.     167, 

p.   520. 
Kew,  In  re,   [1901]   2  Ch.  534,  p.  608. 
Kew  V.  Nicoll,  73  N.  Y.  127,  130,  131, 

29  Am.  Rep.   Ill,  p.   623,  624. 
Kewbery   v.    James,   2   Mer.    446,    451, 

2   Scott   26,   p.   885. 
Kew  Brunswick  etc.  R'y  v.  Muggridge, 

1  Drew  &  S.  363,  381,  p.  449. 
Kew  England-  M.  S.   Co.  v.   Powell,   97 

Ala.  483,   12  South.  55,  p.   179. 
Kew  England  Trust  Co.  v.  Abbott.  162 

Mass.   148,   154,  38  K.  E.  432,  27  L. 

R.  A.  271,  H.  &  B.  720,  p.  884. 
Kew    Jersey,     B.,    L.    &    Inv.    Co.    v. 

Bachelor.  54  K.  J.  Eq.   600,  35  Atl. 

745,  p.  345. 
Kc^\^nan  v.  Commercial  Kat.  B'k,   156 

111.  530,  41  K.  E.  156,  p.  66. 
Newman  v.  Kewman,  L.  R.  28  Ch.  Div. 

674,  Ames  Trusts  335,  p.   346. 
Kewmeyer  v.   Missouri  etc.  R.  R.   Co., 

52    Mo.    81,    14    Am.    Rep.    391,    p. 

822. 

Kew  Orleans  v.  Louisiana  Construction 
Co.,  129  U.  S.  46,  47,  9  Sup.  Ct. 
223,  224,  p.   139. 

New  Orleans  v.  Warner,  175  U.  S.  120, 
130.  20  Sup.  Ct.  44,  44  L.  ed.  96. 
p.  199. 

Kew  River  Mineral  Co.  v.  Seeley,  120 
Fed.   193,  p.  523. 


Newsome  v.   Flowers,  30  Beav.  4^1,  p. 

609. 
Kewton  v.  Porter,  69  N.  Y.   133,   136- 

140,  25  Am.  Rep.  152,  H.  &  B.  477, 

Shep.  201,  p.  597,  601. 
Newton   v.   Swazey,   8   N.   H.   9,    11,    1 

Scott  109,  p.  779. 
N.  Y.  &  K.  E.  R.  Co.  V.  City  of  Provi- 
dence,  16  R.  I.   746,  19  Atl.   759,  p. 

225. 
New  York  &  N.  H.  R.  R.  v.  Scliuyler, 

17  N.  Y.  592,   1  Keener  118,  p.   120, 

874. 
New  York  &  T.  Land  Co.  v.  Gulf,  W. 

T.    &    P.    R.    Co.,    100    Fed.    830,    41 

C.  C.  A.  87,  p.  67. 
New  York  Bank  Note  Co.  v.  Hamilton, 

etc.    Co.,    83    Hun    593,    31     K.    Y. 

Supp.  1060,  2  Keener  618,  p.  777. 
K.  Y.,  K.  H.,  &  H.  R.  R.  v.  Schuyler, 

34  N.  Y.  30,  80,  p.  327. 
N.  Y.  Printing  etc.  Estab.  v.  Fit<'h,  1 

Paige,  98,  1  Keener  562,  p.  814,  844. 
Nibert  v.  Baghurst,  47  N.  J.  Eq.  201, 

20   Atl.   252,   2   Keener   722,   p.    901, 

902. 
Nicholas  v.  Ward,  1  Head,  323,  73  Am. 

Dee.    177,  p.   532. 
Nicholls    V.    Nicholls,    1    Atk.    409,     1 

Scott    481,    p.    509. 
Nichols    V.    Allen,    130    Mass.    211,    39 

Am.  Rep.  445,  p.   579,  587. 
Kichols  V.  Eaton,  91  U.  S.  716,  p.  551, 

552. 

Nichols  V.  Levy,  5  Wall,  433,  441,  p. 
551. 

Nichols  V.  McCarthy,  53  Conn.  299.  5.1 

Am.    Rep.    105,   23   AtL    93,    p.    513. 

514,  516. 
Nichols  V.  Nichols,  28  Vt.  230,  67  Am. 

Dec.   699,  p.   867. 
Nichols   V.    Pinner.    18   N.   Y.    295,    23 

N.  Y.  264,  p.  469. 
Nichols  V.   Pitman,   L.   R.   26    Cli.    D. 

374,  p.  839. 
Nickley  v.   Thomas,  22   Barb.   652,   p. 

465. 
Nix  V.  Bradley,  6  Rich.  Eq.  43,  48,  p. 

643. 
Noakes    &    Co..    Ltd..    v.    Rice,    [1902] 

App.  Cas.  24,  p.  698. 


980 


TABLE    OF    CASKS    CITED. 


Noble's  Adm'r  a'.   ;Moses,   81    Ala.   530. 

1    South.   217,   60   Am.   Rep.    175,   p. 

513,   522. 
Xoel's    Ex'r    v.    Gill,    84    Ky.    241,    3 

Keener  241,  p.  436. 
Xorcross  v.  James,  140  Mass.  188,  2  N. 

E.    946.    1    Ames    Eq.    Jur.    182,    2 

Scott  504,  2  Keener  591,  p.  776. 
Xordenfelt    v.    IMaxim-Xordenfelt    Co.. 

[1894]  App.  Cas.  535,  p.  491. 
Xorris  v.  Fox,  45  Fed.  406,  1  Ames  Eq. 

Jur.   426.  p.  897. 
Xorris    v.    He,    152    111.    190,    202.    203. 

204,  43  Am.   St.  Rep.  233,  38  X.  E. 

762,  p.  283,  285.  286. 
Xortham  v.  Boyd,  66  Tex.  401,  1  S.  W. 

109.   p.   285. 
Xortliem  Assam  etc.,  Co.,  In  re,  L.  R. 

10  Eq.  458.  463.  p.   330. 
Xorthern    Counties   etc.    Co.   v.   Whipp. 

L.  R.  26  Ch.  Div.  482,   1   Scott  353, 

p.  318.  349. 
Xorthwestern    Guaranty    Loan    Co.    v. 

Smith.    15    IMont.    104,    48    Am.    St. 

Rep.   662.  38   Pac.   224.  p.   784. 
Xorton  V.   Pheljis.  54  ^liss.  -467,  Ames 

Trusts,  421,  p.  624. 
Xorway  v.  Rowe,   19  Ves.   144,   1   ^Ter. 

346,   p.   82. 
Xorwood   V.    Harness.    98   Ind.    134,    49 

Am.    Rep.    739,   p.    611. 
Xotta^e,  In  re,  [1895]  2  Ch.  649,  657, 

p.  578. 
X'ottinjjham    etc.    Co.   v.    Butler.    L.    R, 

]()   Q.    B.    T).    778,    1    Ames   Eq.    Jur. 

1()9,    2    Scott    530,   2   Keener   519.   p. 

776. 
Xottley    V.    Palmer,    2    Drew,     93.     p. 

235. 
Xoyes  V.  Anderson,   124  X.  Y.   175.  26 

X.  E.  316,  21   Am.   St.   Rej).   657.   p. 

223. 
Xoyes  V.  Clark.  7  Paige,   179,  32  Am. 

Dec.   620,  p.  218,  219. 
Xoyes  V.   Crawford,   118   Iowa,    15.   96 

Am.  St.  Rep.  363.  91  X.  W.  799,  p. 

287. 
Noyes  v.  Hall.  97  U.  S.   34,  38,  24  L. 

ed.  909,  p.   721. 
Xoyes  V.   Landon,   59  Vt.   569,   10   Atl. 

342.  p.  465. 
Xudd    V.    Powers,    136    :Mass.    273,    p. 

743. 


Xunn    V.    Fabian,   L.    R.    1    Ch.    35.    2 
Keener  636,  p.  902. 


O. 


Oakley  v.  Taylor,  64  Fed.  245,  246.  p. 

142. 
0.  &  W.  Thum  Co.  v.  TloczA'nski.   114 

Mich.   149,  68  Am.  St.  Rep.  469,  72 

X.  W.  140,  38  L.  R.  A.  200,  H.  &  B. 

755,   p.   817. 
O'Bear  Jewelry  Co.  v.  Volfer,  106  Ala. 

205,  17  South.  525,  54  Am.  St.  Rep. 

31,    28    L.    R.    A.    707,    p.    593.    595, 

596. 
Ober    V.    Gallagher,    93    U.    S.    199.    23 

L.  ed.  829,  p.  752. 
Ober  &   Sons  Co.  v.   Cochran.   118   Ga. 

396.  45   S.   E.  382,   98   Am.   St.   Rep. 

118.  p.  598. 
O'Brien  v.  Bolland,  166  :Mass.  481.  41 

X.  E.   602,   1   Ames  Eq.  .Jur.  433.   p. 

892. 
O'Brien    v.     Creitz,     10    Kan.    202.    2 

Ames  Eq.  .Tur.  146,  p.  875. 
O'Brien  v.  Stambach,  101  Iowa.  40.  69 

X.  W.  1133,  63  Am.  St.  Rep.  368,  p. 

910. 
Ocean  City  Ass'n  v.  Schurch.  57  X.  J. 

Eq.  268,  41  Atl.  914,  1  Scott  215,  p. 

777,   826. 
Oceanic  Steam  Xav.  Co.  v.  Sutherbeny, 

L  R.  16  Ch.  DiA'.  236,  p.  619. 
Odell  V.  Montross,  68  N.  Y.  499,  Kirch. 

460,  p.  701. 
Oden   A'.    Lockwood,    136   Ala.    514,   33 

South.  895,  p.  566. 
Odom   V.   Riddick.    104   X.    C.    515,    10 

S.    E.    609.    17    Am.    St.    Rep.    686,    7 

L.  R.  A.  118.  p.  364,  505. 
Ogden    A'.    Fitzsimmons,    7    Cranch,    L 

18,  p.  326. 
Ogden  A'.  Ha\'en,  24  111.  57,  p.  344. 
Ogden  V.  Ogden,  60  Ark.  70,  28  S.  W. 

796,    46    Am.    St.    Rep.    151.    p.    638. 
Ogle,  Ex  parte,  L.  R.  8  Ch.  711,  Ames 

Trusts  504.  p.  610. 
OHara    v.    Dudley.    95    X.    Y.    403.    47 

Am.  Rep.  53,  H.  &  B.,  p.  603. 
Ohmer  v.  Boyer,  89  Ala.  273.  7  South. 

663.  p.  384,  386,  589.  717. 
on   Co.  V.  Marbury,  91   U.   S.   592.  23 

L.  ed.  331,  Shep.  119,  p.  198,  618. 


TABLE    or    CASES    CITED. 


981 


Oil  Creek  R.   R.  v.  Atlantic  &   G.   W. 

R.  R.,  57   Pa.   St.  65,  p.  227. 
Oldfield  V.  Round,  5  Ves.  508,  2  .Scott 

231,  p.  905. 

Olds  V.  Cunimings,  31  HI.  188,  p.  329. 
Oliffe    V.     Wells,     130    Mass.    221,    p. 

587. 
Oliver  v.  Oliver,  118  Ga.  362,  45  S.  E. 

232,  p.   523. 

Olmstead  v.  Distilling,  etc.  Co.,  69  Fed. 

24,  p.  808. 
Olson  V.  Lamb,  56  Nebr.   104,  71   Am. 

St.    Rep.    670,    76    N.    W.    433,    p. 

520. 
Olson   V.    Liebpke,    110   Iowa,    504,    81 

N.  VV.  801,  80  Am.  St.  Rep.  327,  !>. 

285. 
Onslow  V.  Wallis,  1  Hall  &  Twells,  513. 

Ames  Trusts  462,  p.  587. 
Ontario  Bank  v.  Munford,  2  Barb.  Ch. 

596.   615,   p.    133. 
Oppeniieimer   v.    Clunie,    142    Cal.    313, 

75  Pac.  889,  899,  p.  461. 
Oppenheimer  v.   Levi,   96  ^Id.  296,   54 

Atl.   74.  60  L.  R.  A.   729,   p.   875. 
Orby   v.    Trigg,   2   Eq.    Cas.   Abr.    599, 

pi.    24,    9    Mod.    2,    Kirch.    470,    p. 

698. 
Ord  V.  Johnston,   1   Jur.,  N.   S.,   1063, 

1064,    1065,  2   Scott   40,   p.   839. 
Ord  way  v.  Downey,   18  Wash.  412,  51 

Pac.    1047,   63   Am.   St.  Rep.  892,  p. 

711. 
O'Reilly  v.  New  York  El.   R.   Co.,   148 

X.  Y.  347,  42  X.  E.  1063,  31  L.  R.  A. 

407,  p.  824. 
Ormrod  v.  Huth,   14  Mees.  &  W.   650, 

p.  4.50,  451. 
Orth    v.    Orth,    145    Ind.    184,    57    Am. 

St.  Rep.  185,  42  N.  E.  277.  44  N.  E. 

17,  32  L.  R.  A.  298,  p.  593. 
Orvis  v.  Newell,   17   Conn.   97,  p.   298. 
Osborn    v.    Lea,    9    Mod.    96,    p.    376. 
Osborn  v.  JlcClelland,  43  Ohio  St.  284, 

298-.307,    1    X.   E.   644,   p.   332,   333, 

335. 
Osborn   v.   Morgan,   9   Hare,   432,   434, 

p.  646. 
Osborne  &  Co.,  D.  U.,  V.  Mo.  Pac.  R. 

Co..   147  U.  S.  248.  13  Sup.  Ct.  299, 

37  L.  ed.  155,  p.  824. 
Oscanyan  v.  Arms  Co.,  103  U.  S.  261, 

p.    495. 


Oswego    Starch    Factory    v.    Lendrum, 

57  -  nva,  573,  10  X.  W.  900,  42  Am. 

Rep.  53,  p.  469. 
OswoU  v.  Probert,  2  Ves.  680,  682.   jj. 

646. 
Otis  v.  Gregory,  111  Ind.  504,  13  X.  E. 

39,  p.   176. 
Ottenheimer  v.  Cook,   10  Heisk.  309,  3 

Keener  71,  p.  416. 
Ottumwa   Screen  Co.   v.   Stodghill.    103 

Iowa.  437,  72  X.  W.  669,  p.  327. 
Overton  v.  Banister,  3  Hare,  503,  .lOfi. 

p.    185. 
Owen   v.    Homan.   3    Macn.   &    G.    378, 

412;  affirmed  4  H.  L.  Cas.  997,  Shep. 

324,   p.   802,   804. 
Owens    V.    Dickenson,    Craig    &    P.    4S, 

53,  54,  p.   650. 
Owens   V.    McXally,    113    Cal.    444,    45 

Pac.   710,   33   L.   R.   A.   369,  p.   903. 


Pace  V.  Bartles,  47   X.  J.  Eq.   170.  20 

Atl.  352,  p.  700. 
Pace  V.   Pace's  Adm'r,   95   Va.   792,  30 

S.  E.  361,  44  L.  R.  A.  459,  p.  915. 
Pacific  Postal  Tel.  Cable  Co.  v.  West- 
ern Union  Tel.   Co.   50   Fed.  493,   p. 

491. 
Pacific   R.   R.   V.    Ketehum,    101    U.    S. 

289,   p.    520. 
Pacific  R"y  Co.  v.   Wade,  91   Cal.  449, 

456,   25   Am.   St.   Rep.   201,   27   Pac. 

768,   13   L.   R.   A.   754,   p.   809. 
Packard  v.  Stevens,  58  X.  J.  Eq.  489. 

46  Atl.   250,   p.   793. 
Packham    v.    German    F.    Ins.    Co.    91 

Md.    515,   80   Am.    St.   Rep.    461,    46 

Atl.  1066,  50  L.  R.  A.  828,  p.  915. 
Packington's  Case,  3  Atk.  215,  1  Keen- 
er 459,   1   Scott  649,  p.  828. 
Padbury  v.   Clark,  2  Macn.   &  G.  298. 

306,  307.  p.  239. 
Padwick    v.    Stanley.    9    Hare,    627,    3 

Keener  905,  p.  919. 
Page  v.  Higgins,   150  Mass.  27,  22  X- 

E.  63,  5  L.  R.  A.  152,  p.  437. 
Page  V.   Pierce.   26  X.   H.   317,   Kirch. 

630.  p.   714. 
Page  v.    Waring,   76   X.   Y.   463,   467- 

469,  p.  369. 


982 


TABLE    OF    CASES    CITED. 


Paget  V.  :^Iarshall,  L.  R.  28  Ch.  D. 
255,  2  Scott  tilO,  3  Keener  295,  p. 
438. 
Paine  v.  Meller,  6  Ves.  349,  1  Ames 
Eq.  Jur.  227,  2  Scott  450,  2  Keener 
403,  p.  162. 
Palmer  v.   De   Witt,   47   N.   Y.   532,   7 

Am.  Rep.  480,  Lewis  64,  p.  839. 

Palmer  v.  Hartford  Ins.  Co.,  54  Conn. 

488,    9   Atl.    248,   3    Keener    317,    p. 

429,  438. 

Palmer  v.  Nea:ve,  11  Ves.  165,  p.  487. 

Pamplin  v.  Green,  3  Cas.  Chan.  95,  p. 

655. 
Panama  etc.  Tel.  Co.  v.  India  Rubber 
etc.    Co.,   L.   R.    10   Ch.    515,   526,   3 
Keener  550,  p.  517. 
Pankhurst  v.  Howell,  L.  R.  6  Ch.  136, 

p.   249. 
Parfitt  V.   Chambre,   L.   R.    15   Eq.   36, 

p.    217. 
Park  Bros.  &  Co.  v.  Blodgett  &  Clapp 
Co.,  64  Conn.  28,  29  Atl.  133,  H.  &  B. 
234,  3  Keener   150,  p.   419. 
Parker    v.    Barker,    42    N.    H.    78,    77 

Am.  Dec.  789,  p.  798. 
Parker  v.  Carter,  4  Hare,  400,  409,  p 

534. 
Parker  v.  Garrison,  61  111.  250.  1  Ames 

Eq.  Jur.  44,  p.  883. 
Parker   v.    Nightingale,    6    Allen,    341, 
344,  83  Am.  Dec.  632,  2  Keener  475. 
p.  775. 
Parker  v.  Randolph,  5  S.  Dak.  549,  59 

N.  W.  722,  29  L.  R.  A.  33,  p.  363. 
Parker  v.  Sears,  1   Fish.  Pat.  Cas.  93. 

Fed.  Cas.  Xo.  10,748,  p.  836. 
Parker  v.  Shannon,  121  111.  452,  13  N. 
E.    155,    2    Ames    Eq.    Jur.    160,    1 
Keener  363,  p.  874. 
Parker  v.  Taswell,  2  De  Gex  &  J.  559, 

p.  558. 
Parkey  v.  Ramsey,    (Tenn.)    76  S.  W. 

812,  p.  394. 
Parkin   v.    Seddons,   L.   R    16   Eq.   34, 

p.    803. 
Parkin  v.  Tliorold,  16  Beav.  59,  1  Ames 

Eq.  Jur.  327,  p.  898,  899. 
Parkinson  v.  Hanbim',  L.  R.  2  H.  L. 
1,  2  De  Gex,  J.  &  S.  450,  Kirch.  550, 
p.  718. 
Parkist  v.  Alexander,  1  Johns.  Ch.  394, 
p.  292. 


Parrish  v.  Hastings,  102  Ala.   414,   14 

South.   783,  48   Am.   St.   Rep.   50,  p. 

747. 
Parrish  v.  Mahany,  10  S.  Dak.  276.  73 

N.   W.   97,  66  Am.   St.  Rep.   715,   p. 

368. 
Parrish  v.  Mahany,  12  S.  Dak.  278.  76 

Am.   St.  Rep.  604,  81   N.  W.  295,  p. 

368. 
Parry     v.     Rogers,     1     Vern.     441,     2 

Ames   Eq.   Jur.    165,  p.   84. 
Parsons  v.  Hartman,  25  Oreg.  547.  42 

Am.  St.  Rep.  803,  37  Pac.  61,  30  L. 

R.   A.   98,   p.   856. 
Parsons    v.    Martin,    86    Ala.    352,    5 

South.  467,  p.  706. 
Parsons   v.    Parsons.    9   X.    H.    309,    32 

Am.  Dec.  362,  p.  648. 
Parsons   v.    Winslow,    6   Mass.    KiO.    4 

Am.   Dec.    107,   p.   489. 
Partridge  v.   Chapman,  81   111.   137,  p. 

363. 
Pasco  V.  Gamble,  15  Fla.  562,  p.  805. 
Patch  V.  Ward,  L.  R.  3  Ch.  203,  207, 

p.    452. 
Paterson  etc.   R.   R.  v.  Jersey  City,   9 

X.  J.  Eq.  434,  p.  108. 
Patterson  v.  Allen,  50  Tex.  23,  p.  673. 
Patterson  v.  Bloomer,  35  Conn.  57,  95 

Am.  Dec.  218,  2  Keener  956,  p.  427, 

4.30. 
Patterson  v.  Hewitt,  195  U.  S.  309.  25 

Sup.  Ct.  35,  49  L.  ed.,  p.   199. 
Patterson  v.  Rabb,  38  S.  C.  138.  17  S. 

E.  463,  19  L.  R.  A.  831,  p.  332. 
Patton  V.    Campbell,   70   111.   72,   H.   & 

B.  171,  p.  132,  408. 
Patty  V.  Middleton,  82  Tex.  586,  17  S. 

W.  909,  p.  372. 
Paul  V.  Connersville  etc.  R.  R.,  51  Ind. 

.527,  530,  p.  265. 
Pnvesich  v.  Xew  England  Life  Ins.  Co., 
(Ga.).  50  S.  E.   68,  1   Scott   194,  p. 

846. 
Pawson  V.   Bro^vn,  L.   R.    13   Ch.   Div. 

202,  p.  587. 
Payne  v.  Becker,  87  N.  Y.  153,  p.  865. 
Payne  v.   Hook,   7   Wall.   425,   430.    19 

L.  ed.  262,  p.  142. 
Payton   v.   ]\IcQuo^^^^,    97    Ky.    757.    53 

Am.   St.  Rep.  437.  31  S.  W.  874,  31 
L.  R.  A.  33,  p.  851. 


TABLFJ    OF    CASES    CITED. 


983 


Pea  body   v,   Fenton,   3   Barb.    Ch.   451, 

4U4,  4G5,  p.  357. 
Peabody  v.  New  England  W.  Co.,   184 

111.  625,  75  Am.  St.  Rep.  195,  56  N. 

E,   957,  p.  809. 
Peabody  v.  Norfolk,  98  Mass.  452,  96 

Am.  Dec.  664,  2  Keener  241,  p.  491, 

817,  818,  820. 
Peaclij'  V.  Duke  of  Somerset,  1  Strange, 

447,   452-456,    Prec.    Ch.    568,   2    Eq. 

Cas.  Abr.  227,  228,  p.   170,  214. 
Peacock  v.  Evans,  16  Ves.  512,  p.  178. 
Peacock   v.   Monk,   2   Ves.    Sr.    190,    p. 

640. 
Peacock    v.    Penson,    11    Beav.    355,    2 

Scott  288,  p.  894. 
Peacock's  Trusts,  In  re,  L.  R.   10  Ch. 

Div.  490,  495,  496,  p.  639. 
Pearne  v.  Lisle,  Amb.   75,   77,   1   Scott 

86,  p.  882. 
Pearson  v.  Cardon,  2  Russ.  &  ]M.  606, 

609,  610,  612,  p.  793,  794. 
Pearson  v.  Morgan,  2  Brown  Ch.  384, 

388,  p.  266. 
Peay  v.  Seigler,  48  S.  C.  496,  59  Am. 

St.  Rep.  731,  26  S.  E.  885,  p.  892. 
Peck   V.   Ashley,    12   Met.   478,   481,   p. 

73. 
Peck  V.  Conway,  119  Mass.  546,  1  Ames 

Eq.  Jur.  162,  2  Scott  527,  2  Keener 

509.  p.  775,  776,  778. 
Peck  V.  Jenness,  7   How.  612,  620,   12 

L.  ed.  841,  p.  736. 
Peek  V.  List,  23  W.  Va.  338,  48  Am. 

Rep.  398,  p.  493. 
Peck  V.  Peck,   110  N.  Y.  64,  74,  17  N. 

E.  383,  p.  723. 
Peebles  v.  Gay,  115  N.  C.  38,  44  Am. 

St.  Rep.  429,  20  S.  E.  173,  p.  916. 
Peek  V.  Gurney,  L.  R.   13  Eq.  79,  113. 

6  H.  L.  377,  p.  449,  450. 
Peek  V.  Peek,  77  Cal.  106,  19  Pac.  227. 

11    Am.    St.    Rep.    214,    1    L.    R.    A. 

185,   1   Scott  463,  2  Keener  756,  p. 

479,  905. 
Peeler   v.   Levy,   26   N.   J.   Eq.   330,   2 

Keener   1236.  p.   906. 
Peers  v.  Lambert,  7  Beav.  546,  2  Scott 

375,  p.  905. 
Pegge  V.  Skjiiner,  1   Cox.  Eq.  Cas.  23, 

Ames'  Cas.  on  Trusts,  218,  p.  549. 
Peirsoll  v.  Elliott,  6  Pet.  95,  98,  8  L. 

ed.  334,  Shep.  141,  p.  860,  877. 


Pellettier  v.  Greenville  L.  Co.,   123  N. 

C.  596,  68  Am.   St.  Rep.  837,  31   S. 

E.    855,    p.    809. 
Pencille  v.  State  F.  M,  H.  Ins.  Co.,  74 

Minn.  67,  76  N.  \Y.  1026,  73  Am.  St. 

Rep.   326,  p.   633. 
Penn    v.    Guggenheimer,    76    Va.    839, 

846,  847,  850,  851,  H.  &  B.   123,   p. 

234,  239. 
Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444, 

2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  1806, 

I  Keener  12,  1  Scott  236,  p.  208. 
Pennell  v.  Defl'ell,  4  De  Gex,  :M.  &  G. 

372,  388,  p.  601. 
Pennoyer  v.  Neff,  95  U.  S.  714,  p.  207. 
Pennoyer  v.  Willis,  26  Oreg.  1,  36  Pac. 

568,  46  Am.  St.  Rep.  594,  p.  304. 
Penny    v.    Martin,    4    Johns.    Ch.    566, 

569,  1    Scott  454,  p.  429. 
Pennybacker  v.  Laidley,  33  W.  Va.  G24, 

II  S.   E.   39,   3   Keener  493,   p.   454, 
482,   485. 

Pensacola  v.  Lehman,  57  Fed.  324,  330, 

13  U.   S.  App.  411,  6  C.  C.  A.   349, 

p.   43. 
People  V.  Canal  Board,  55  N.  Y.   390, 

1  Keener  100,  p.  822. 
People  v.  Chicago,  53  111.  424,  428.  p. 

98. 
People's  Bank  v.  Bogart,  81  N.  Y.  101, 

108,  37  Am.  Rep.  481,  3  Keener  575, 

p.  464,  467,  468. 
People's  Nat.  Bank  v.  Marve,  191  U.  S. 

272,   24   Sup.   Ct.   68,    107    Fed.   570, 

p.  180,  824. 
Percival   v.   Harger.   40   Iowa,   286,   p. 

455. 
Perkins  v.  Ede,  16  Beav.   193,  1   Ames 

Eq.  Jur.  247,  2  Scott  376,  2  Keener 

1128,  p.  905,  906. 
Perkins  v.  Gibson,  51  Miss.  699,  24  Am. 

Rep.   644,  p.   750. 

Perkins  v.  Partridge,  30  N.  J.  Eq.  82, 

Shep.   171,  p.  444,  446. 
Perkins  v.  Sterne,  23  Tex.  561,  76  Am. 

Dec.  72,  p.  714. 

Perkins'  Appeal.  108  Pa.  St.  314,  56 
Am.  Rep.  208,  Shep.  206,  p.  623. 

Perrot  v.  Perrot.  3  Atk.  94,  1  Keener 
453,  p.  827,  829. 

Perry  v.  Board  of  ^Missions,  102  N.  Y. 
99,  6  N.  E.  116,  Kirch.   135,  p.  740. 


984 


TABLE    OF    CASES    CITED. 


I'eters  v.  Dickinson,  G7  N.  H.  38f),  32 

Atl.  154,  2  Keener  733,  p.  902. 
Peters  V.  Mortimer,  4  Ed\v.  CJi.  2"!).  ]). 

497. 
Peters  v.  Turrell,  43  Minn.  473,  45  N. 

W.    867,    19    Am.    St.    Rep.    252,    p. 

747. 
Peterson  v.  Clark,  15  Johns.  205,  Kirch. 

412,  p.  699. 
Peterson  v.  McCauley,  (Tex.  Civ.  App.) 

25  S.  W.  826,  p.  365. 
I'etty  V.  Petty,  4  B.  Mou.  215,  39  Am. 

Dec.  501,  p.  865. 
Peugh   V.   Davis,   96   U.   S.   332,   24   L. 

ed.  775,  Shep.  59,  p.  701. 
Pfister  V.  Wade,  56  Cal.  43,  p.  792. 
Pfolil  V.  Simpson,  74  N.  Y.  137.  p.  103. 
Pforr's  Estate,  In  re,   144  Cal.   121,  77 

Pac.  825.  p.  680. 
Phalen  v.  CUark,  19  Conn.  421.  50  Am. 

Dec.   2.53,   p.   476. 
Plielan    v.    Brady,    119    N.    Y.    587,    2:5 

N.  E.   1109,  8  L.  Pv.  A.  211,  p.  275, 

276. 
Philadelphia   Ball  Club  v.   Lajoie,  202 

Pa.  St.  210,  90  Am.  St.  Pep.  627,  51 

Atl.  973,  58  L.  R.  A.  227,  p.  819. 
Pliillips    V.    Bergrer.    2    Barb.    608,    2 

Keener  98,  p.  882. 
I'hillips  v.  Ferguson,  85  Va.  509,  8  S. 

E.  241,  17  Am.  St.  Rep.  78,   1  L.  R. 

A.  837,  p.   489. 

Phillips  V.  Homfray,  L.  R.  6  Ch.  770, 

p.   467. 
Phillips   V.   Medbury,   7   Conn.   568,   p. 

489. 
Pliillips   V.   Phillips,   4   De   Gex,   F.   & 

J.   208,   21.5,   216,  218,   H.   &   B.   72. 

Ames  Trusts  331,   1   Scott  333,  511, 

p.   195,   197,  314,  315,  339,  357,  371, 

374,  377. 
Phillips    v.    Phillips,    0    Hare,    471,'  1 

Ames  Eq.  Jur.  449,  p.  918. 
Phillips  V.   Pullen,  45  N.  J.  Eq.  5,   16 

Atl.  9,  H.  &  B.  308,  p.  482.  483. 
Phillips  V.  Sylvester,  L.  R.  8  Ch.   173, 

2  Keener  356,  p.  163. 
Phillips'  Estate,  In  re,  205  Pa.  St.  515, 

55  Atl.  213,  97  Am.  St.  Rep.  746.  p. 

324,   325. 
Phinizy  v.   Guernsey,   111   Ga.  346,  78 

Am.  St.  Rep.  207,  36  S.  E.  796,  H.  & 

B.  671. 


Phipps  V.  Lovegrove,  L.  R.  16  JOq.  80, 

p.   622. 
Phoenix    Ins.    Co.    v.    Schultz,    80    Fed. 

337,  25  C.  C.  A.  453,  p.  809. 
Phyfe  V.  Warden,  5  Paige,  268,  28  Am. 

Dec.   430,  p.   600. 
Pickard  v.  Sears,  6  Ad.  &  E.  469,  474, 

p.  392. 
Pickering  v.   Bishop  of  Ely,  2  Younge 

&  C.  Ch.  249,  p.  886. 
Pico  V.   Cohn,  91   Cal.   129,  25  Am.  St. 

Rep.   159,  25   Pac.   970,  27   Pac.   537. 

13  L.  R.  A.  336,  p.  854. 
Pico  V.  Columbet,  12  Cal.  414,  73  Am. 

Dec.  550,  p.  919. 
Pidding  v.  How,  8  Sim.  477,  Lewis  125. 

p.  840. 
Pierce  v.  Boston  Sav.  Bank,  12!)  Mass. 

425,  37  Am.  Rep.  371,  p.  668. 
Pierce  v.  Emeiy,  32  N.  H.  484,  Kirch. 

80.  p.  771. 
Pierce    v.    Equitable    Life    Assur.    Soc, 

145  Mass.  56,  12  N.  E.  858,  3  Keener 

929,  p.  .918. 
Piggott  V.  Stratton,  1  De  Gex,  F.  &  .7. 

33,  49,  p.  445. 
Pike  V.   Fitzgibbon,  L.  R.   17  Ch.  Div. 

454,  p.  636,  643,  650,  651. 
Pilcher  v.  Rawlins,  L.  R.  7  Ch.  259,  L. 

R.  11  Eq.  53,  p.  372. 
Pillow   V.    Southwest   etc.    Co.,   92   Va. 

144,  53  Am.  St.  Rep.  804,  23   S.   E. 

32,  p.  868. 
Pillsworth    V.    Hopton,    0    Ves.    51.    1 

Scott   681.    1    Ames   Eq.   Jur.   488.    1 

Keener  543,  p.  842. 
Pincke    v.    Curtis,    4    Bro.    C.    C.    329, 

331,  2  Scott  428,  p.  897,  899,  900. 
Pine  Mt.  Iron  &  Coal  Co.  v.  Bailey.  9^ 

Fed.  258,  36  C.  C.  A.  229,  p.  303. 
Pinkerton  v.  INIanchester  etc.  R.  R.  42 

K.  H.  424,  p.  327. 
Pioneer  Land  Co.  v.  Maddux,  109  Cal. 

633.  50  Am.  St.  Rep.  67,  42  Pac.  295. 

p.   873. 
Piper  V.  Hoard,  107  ^'.  Y.  73,  13  N.  S. 

626,  1   Am.  St.  Rep.  785,  789,  p.  462. 
Pironi  v.  Corrigan,  47  N.  J,  Eq.   135, 

20  Atl.  218,  p.  522. 
Pitcher  v.  Hennessey,  48  N.  Y.  415,  2 

Keener  65,  p.  419. 


TABLE   OF    CASKS    CITED. 


985 


Pitts  V.  Rhode  Island   Hospital   Trust 

Co.,  21   R,  I.   544,   79  Am.   St.   Rep. 

821,  45  Atl.  553,  48  L.  R.  A.  783,  p. 

784. 
Pittsburg  INlin.  Co.  v.  Hpooner,  74  Wis. 

307,  17  Am.  St.  Rep.   149,  42  N.  W. 

259,  p.  619. 
Pi.xley  V.  Huggins,  15  Cal.  127,  2  Ames 

Eq.  Jur.   153,  p.  874,  87G. 
Piatt    V.    Threadgill,    80    Fed.    192,    p. 

854. 
Platte  Val.  State  Bk.  V.  National  etc. 

Assn,   155  III.  250,  40  N.  E.   621,  2 

Ames  Eq.  Jur.  29,  p.  795,  797. 
Plenderleith,  In  re,   [1893]   3  Ch.  332. 

p.   785. 
Plj'mpton  V.  Malcolmson,  L.  R.  20  Eq. 

37,  1  Ames  Eq.  Jur.  632,  p.  836. 
Pocahontas     Light     &    Water    Co.     v. 

Browning,  53  W.  Va.  436,  44  S.  E. 

207,  p.  393. 
Poe  V.  Di.xon,  60  Ohio  St.   124,  54  N. 

E,  80,  71  Am.  St.  Rep.  713,  p.  711, 

712. 
Poe  V.  Paxton,  26  W.  Va.  607,  p.  319. 
Pokegama  S.  P.  L.  Co.  v.  Klamath  R. 

L.  &  I.  Co.,  96  Fed.  34,  55,  p.  225. 
Polhemus  V.  Holland  Trust  Co.,  59  N. 

J.  Eq.  93,  45  Atl.  534,  p.  65. 
Pollard  V.  Photographic  Co.,  40  Cli.  D. 

345,  1   Keener  76,  p.  816,  839. 
Pollock,  In  re,  L.  R.  28  Ch.  Div.  552, 

556,  p.  249. 
Pollock    V.    Lester,     11    Hun    837,     1 

Keener  837. 
Pollock  V.  National  Bank,  7  N.  Y.  274, 

57   Am.  Dec.  520,  p.   907. 
I'ond  V.  Sheean,  132  111.  312,  23  N.  E. 

1018,  8  L.  R.  A.  414,  2  Keener  715, 

p.   902,   903. 

Pope  V.  Cole,  55  N.  Y.  124,  14  Am.  Rep. 

198,  p.  191. 
Pope  V.  Dafray,  176  111.  478,  52  N.  E. 

58,  p.  003. 
Poi)ejoy,   In   re,   26   Colo.   32,   55   Pac. 

1083,  77  Am.  St.  Rep.  222,  p.  64S. 
Port  Clinton  R.  R.  v.  Cleveland  etc,  R. 

R.,  13  Oliio  St.  544,  549,  556,  p.  889, 

890. 
Porter  V.   Woodruff.  36  N.  J.   Eq.   174, 

185,  H.  &  B.  296,  p.  517,  615. 


Port     To\\^lsend     Xat.     Bank    v.    Port 

TowTisend  Gas  &  Fuel  Co.,  6  Wash. 

597,  34  Pac.   155,  p.  327. 
Post  V.  Mason,  91  N.  Y.  539,  43  Am. 

Rep.  689,  p.  519. 
Post  V.  Toledo,  C.  &  St.  L.  R.  Co.,  144 

Mass.    341,    II    N.    E.    540,    59    Am. 

Kep.  86,  Shep.  344,  p.  77. 
Postlethwaite  v.  Rickman,  L.  R.  35  Cli. 

Div.  744,  p.  81. 
Poston  V.  Balch,  69  Mo.   115,  p.  475. 
Potter  V.  Ellice,  48  N.  Y.  321,  2  Seott 

415,   p.    164. 
Potter  V.  Taggart,  59  Wis.  1,  10  N.  W. 

553,  632,  3  Keener  673.  p.  470. 
Potter  V.  Titcomb,  22  Me.  300,  p.  475. 
Potter's   Appeal,   56    Conn.    1,    12   Atl. 

513,  7  Am.  St.  Rep.  272,  p.  452. 
Powell  V.  Elliot,  L.  R.   10  Ch.  424,  p. 

463. 
Powell  V.  Heisler,  16  Oreg.  412,  19  Pac. 

109,    p.    429. 
Powell    V.    Morisey,    98    N.    C.    426,    2 

Am.   St.   Rep.   343,   4   S.   E.    185,   p. 

252. 
Powell  V.  Powell,  80  Ala.   11.  p.  515. 
Powell  V.  Powell,   [1900]    1  Ch.  243,  p. 

516. 
Powell  V.  Powis,  1  Younge  &  J.  159,  1 

Keener  170,  p.  104. 
Powell  V.  Riley,  L.  R.   12   Eq.   175,  p. 

603. 
Powell  V.  Smith,  L.  R.   14  Eq.  85,  90, 

p.  417. 
Powell  V.   Smith,  30  Mich.  451. 
Powell  DuffrT^'n  Coal  Co.  v.  Tafi"  Vale 

R'y  Co.^  L.  R.  9  Ch.  331,  1  Ames  Eq. 

Jur.  79,  p.  888. 
I'ower's   Appeal,    125    Pa.    St.    175,    17 

Atl.    254,    11    Am.    St.    Rep.    882,    1 

Scott  264,  p.  401. 
Powys  V.  Mansfield.  3  :Mylne  &  C.  359, 

374,  376,   6  Sim.  544,  p.  247,  249. 
Pratt  V.  Douglas,  38  N.  J.  Eq.  516,  p. 

239. 
Pratt   V.   Northam,   5   [Mason,   95,    104, 

105,  Fed.  Cas.  No.  11,376,  p.  96,  656. 
Pratt  V.  Taunton  Copper  Co.,  123  ]\Iass. 

no,  25- Am.  Rep.  37,  p.  336.  907. 
Pratt  V.  Tuttle,   136  Mass.   233,  Ames 

Trusts.   .32.   3   Keener  928,  p.   919. 
Pratt's    Ex'r    v.    Xixon.    91    Ala.    192, 

8  South.  751,  p.  710. 


986 


TABLE    OF    CAS]:S    CITED. 


Prentice  v.   Janssen,   79   N.   Y.   478,    1 

Scott  639,  H.  &  B.   163,  p.  677,  684, 

685. 
Preston   v.    Kindrick,    94   Va.    760,    64 

Am.   St.   Rep.   777,  27   S.   E.   588,   p. 

855. 
Prewitt  V.  Trimble,  92  Ky.  176,  36  Am. 

8t.  Rep.  586,  17  S.  ^y.  356,  H.  &  B. 

287,  p.  454. 
Price  V.  Dyer,  17  Ves.  350,  2  Scott  266, 

p.   434. 
Price  V.  Krasuoff,  60  S.  C.   172,  38  S. 

E.  413,  p.   550. 
Price   V.    Macauley,    2    De   Gex,   M.    & 

G.   339,  346,  p.   455,  459. 
Price  V.  McDonald,  1  Md.  403,  412,  54 

Am.  Dec.  657,  p.  264. 
Price    V.    Stratton,     (Fla.)     33    South. 

644,  p.   178. 
Pride  v.  Andrews,  51   Ohio  St.  405,  38 
•  X.  E.  84,  p.  185. 
Priest  V.  Rice,  18  Mass.   (1  Pick.)    164, 

11  Am.  Dec.   156,  p.  342. 
Primmer  v.   Patten,  32  111.  528,  p.   78. 
Prince   Albert   v.   Strange,   1    Macn.   & 

G.  25,  1  Hall  &  T.  1,  2  De  Gex,  &  S. 

652,  p.  839. 
Pringle  v.  Dunn,  37  Wis.  449,  460,  461, 

464,  465-467,  19  Am.  Rep.  772,  H.  & 

B.  92.  p.  262,  263,  267,  281,  293,  294, 

306,  364,  365. 
Prioleau  V.  United  States  and  Andrew 

Johnson,    L   R.   2   Eq.    659,   p.   77. 
Pritchard     v.     Elton,     38     Conn.     434, 

Kirch.  458,  p.  698. 
Probasco   v.   Johnson,   2    Disn.    96,   98, 

p.    756. 
Probert  v.  McDonald.  2  S.  Dak.  495,  51 

N.    W.    212,    39    Am.    St.    Rep.    796, 

p.  98. 
Procter  v.   Cooper,  2  Drew.   1,   18  Jur. 

444,  1  Jur.,  N.  S.,  149,  p.  289. 
Proctor  V.  Thrall,  22  Vt.  262,  2  Ames 

Eq.  Jur.  270,  p.  416. 
Prospect    Park   &    C.    I.    R.    R.    Co.    v. 

Coney  I.  &  B.  R.  R.  Co.,  144  N.  Y. 

152,  39  N.  E.   17,  26  L.  R.  A.  610, 

1  Ames  Eq.  Jur.  83,  H.  &  B.  641,  p. 

890,  895. 
Prosser   v.    Rice,    28    Beav.    68,    74,    p. 

260. 
Prout  V.  Roby,  15  Wall.  471,  21  L.  ed. 

58,  p.  638,  639. 


Provisional  Municipality  of  Pensacola 

V.  Lehman,  57    Fed.   324,  331,   13   U. 

S.   App.   411,  p.   43. 
Prudential    Ass.    Co.    v.    Knott,    L.    R. 

10  Ch.  142,  1  Keener  53,  Lewis  314, 

p.  845. 
Prudential  Ass.   Co.  v.  Thomas,  L.   R. 

3  Ch.  74,  1  Keener  287,  p.  790,  791, 

797. 
Pry  or   v.   Adams,    1    Coll.   382,    1    Am. 

Dec.  533,  p.  94. 
Pugh  V.  Highley,  152  Ind.  252,  53  N. 

E.   171,  71  Am.  St.  Rep.  327,  44  L. 

R.   A.  392,  p.   343. 
Pullman    Palace    Car    Co.    v.    Central 

Transportation   Co.,   65    Fed.    158,   3 

Keener  870,  p.  .503. 
Pulsford  V.  Richards,   17  Beav.  87.  94. 

95,  96,  2  Scott  661,  p.  453,  455,  462. 
Pulvertoft   V.    Pulvertoft,    18    Ves.    84, 

86,  p.  321,  533. 
Purcell  V.   Miner,   4   Wall.   513.    18   L. 

ed.   435,  2  Scott   206,  Shep.   272,   p. 

902. 
Purdy  V.  Huntington.  42  N.  Y.  334,   1 

Am.   Rep.   .532,   p.   351. 
Pusey  V.  Desbouverie,  3  P.  Wms.  315, 

320,  3  Keener  2,  1  Scott  430,  p.  424. 
Pusey  V.  Pusey,   1   Vern.  273,   1   Lead. 

Cas.   Eq.    1109,   1114,   1117.  H.   &  B. 

573,  1  Scott  86,  Shep.  278,  p.  67,  882. 
Pye,  Ex  parte,   18  Ves.   140,   151,   152, 

154,  2  Lead.   Cas.   Eq.,  4th  Am.  ed., 

741,  Ames  Trusts   123,   p.   246,   247, 

249,  558,  559. 
Pylant  v.  Reeves,  53  Ala.  132,  25  Am. 

Rep.  605,  p.  749. 
Pym  V.  Lockyer,  5  Mylne  &  C.  29,  34, 

46.    48,   p.    246,    247. 
Pyrke  v.   Waddingham,   10  Hare,   1,   1 

Ames  Eq.   Jur.  269,  2   Scott  361,   p. 

895. 


Q. 


Quartz  Hill  etc.  Co.  v.  Beall.  L.  R.  20 
Ch.  Div.  501,  507,  Lewis  386.  p. 
845. 


R. 


Radford  v.  Carwile,  13  W.  Va.  572,  p. 
642,  643. 


TABLE   OF    CASKS    CITED. 


987 


Haeaser   v.    National    Exchaufjfc    Bank, 

112  Wis.  591,  88  N.  W.  G18.  88  Am. 

St.  Rep.  979,  p.   7()7. 
Ragsdale  v.  Holmes,  1  S.  C.  91,  p.  072. 
Rakestraw  v.   Lanier,   104  Ga.   188,  30 

S.  E.  735,  69  Am.  St.  Rep.  154,  H.  & 

B.   310,   p.  491. 
Ralston  v.  Turpin,  25  Fed.   7,   18,  af- 
firmed, 129  U.  S.  663,  9  Sup.  Ct.  420, 

p.  518,  521. 
Ramshire  v.  Bolton,  L.  R.   8  Eq.   294, 

p.  471. 
Randall  V.  Lingwall,  43  Oreg.  383,  73 

Pac.    1,   p.   278. 
Randle  v.  Carter,  62  Ala.  95,  p.  805. 
Randolph   v.    Webb,    116   Ala.    135,   22 

Sovith.  550,  p.  361. 
Rankin  v.  Coar,  46  N.  J.  Eq.  566,  22 

Atl.   177,  11   L.  R.  A.  661,  p.  279. 
Rapps   V.   Gottlieb,    142  N.   Y.   164,   36 

N.   E.    1052,  affirming  67   Hun,    115, 

22  N.  Y.  Supp.  52,  p.  330. 
Raritan   Waters   Co.  v.   Veghte,  21    N. 

J.  Eq.  463,  478,  19  N.  J.  Eq.   142,  p. 

273. 
Rau  V.   Von  Zedlitz,   132  Mass.   164,  3 

Keener  784,   1   Scott  487,  p.  510. 
Ravenswood,  S.  &  G.  R'y  Co.  v.  Wood- 
yard.  46  W.  Va.   558,  33   S.  E.  285, 

p.  605. 
Rawlins  v.   Wickham,   3   De  Gex  &  J. 

304,   p.   453. 

Raymond   v.    Flavel,   27   Oreg.   219.   40 

Pac.  158,  p.  262,  267. 
Rayner  v.  Preston,  L.  R.   18  Ch.  D.   1, 

1   Ames   Eq.   Jur.   229,   2   Scott   458, 

p.    163. 

Read  v.  Mosby,  87  Tenn.  759,  11  S.  W. 

940,  5  L.  R.  A.  122,  p.  511. 
Rpade  v.  Livingston,  3  Johns.  Ch.  481, 

8  Am.  Dec.  520.  p.  638. 
Redfield  v.  Gleason,  61  Vt.  220.  17  Atl. 

1075,  15  Am.  St.  Rep.  889,  p.  432. 
Redgrave  v.   Kurd,  L.   R.   20   Ch.   Div. 

1,    13.    14,  2   Keener  896,   Shep.    173. 

p.   456.   459,   460. 

Red  River  Val.  L.  &  I.  Co.  v.  Smith, 
7  X.  Dak,  236,  74  N.  W.  194,  p. 
277. 

Reed  v.  Dickerman,  12  Pick.  145.  146, 
149,  H.  &  B.  134,  p.  233,  235,  236. 


Reed  v.  Equitable  F.  &  M.  Ins.  Co.,  17 

R.   I.   785,  24  Atl.  833,   18  L.   R.  A. 

4!)6,    p.    303. 
Reed  v.  HoUiday,  19  Fed.  325,  p.  838. 
Reed  v.  Lukens,  44  Pa.  St.  200,  84  Am. 

Dec.  425,  2  Scott  455,  p.  163. 
Rees  v.  Berrington,  2  Ves,  540.  2  Lead. 

Cas.    Eq.,    4th    Am.    ed.,    1867,    1870. 

1896,   p.    174. 
Rees   V.    C;ity   of   Watertown,    19   Wall. 

121,    H.    &    B.    5,    Shep.    53,    1    Scott 

260,  p.  201. 
Reese   v.    Bank   of    Commerce,    14   Md. 

271,   74  Am.   Dec.   536,  p.   330. 
Reese  River  Mining  Co..  In  re,  L.  R.  2 

Ch.  604,  609,  p.  449. 
Reeve  v.  Whitmore,  4  De  Gex,  J.  &  S. 

1,  16-18,  p.  771. 
Reeves  v.  Kimball,  40  X.  Y.  299,  .304, 

311,   p.    330. 
Reeves  v.  Morgan,  48  X.  J.  Eq.  415,  21 

Atl.  1040,  p.  408. 
Reid  v.  Shergold.   10  Ves.  370,  380,  p. 

410. 
Renals   v.   Cowlishaw,   L.   R.   9   Ch.   D. 

125,    1   Ames   Eq.   Jur.    159.   2   Scott 

501.  2  Keener  512,  p.  776. 
Renard  v.   Clink,   91   Mich.    1,   30  Am. 

St.  Rep.  458,  51  N.  W.  692,  H.  &  B. 

212,    p.    424. 
Rennie  v.   Young,  2  De  Gex  &  J.   136, 

p.  396. 
Republican   Mountain   Silver   Mines   v. 

Brown,  .58  Fed.  647,  7  C.  C.  A.  412, 

24  L.  R.  A.  776,  p.  807. 
Revell  v.  People,   177   111.  468,  69  Am. 

St.  Rep.  257,  52  N.  E.  1052,  53  L.  R. 

A.   790,  p.   834. 
Revett   V.   Harvey,    1    Sim.    &    St.   502, 

p.  521. 
Reynell   v.   Spr\e.    1    De  Gex,  M.   &   G. 

656,  660,  679.  688,  689,  p.   185,  448, 

455.  461. 
Reynolds  v.  Burgess  Sulphite  Fibre  Co., 

71   N.  H.  332,  339.  341-345,  346,  51 

Atl.   1075,  57   L.  R.  A.  949.  93  Am. 

St.    Rep.    535.    544-549,    1    Scott    45, 

p.   73,  75,  77. 
Reynolds  v.   Crawfordsville  Bank,    112 

U.  S.  410,  5  Sup  Ct.  216,  p.  140. 
Reynolds  v.  Everett,  144  N.  Y.  189,  39 

X.   E.    72.   26   L.   R.   A.   591,  Lewis 

270,  p.  846. 


988 


TABLE    OF    CASES    CITED. 


Reynolds  v.  Pitt,   19  Ves.   134,   140,  p. 

214,    22G. 
Reynolds  v.  Sumner,  12G  111.  58,  9  Am. 

St.  Rep  523,  and  note,  18  N.  E.  334, 

1  L.  R.  A.  327,  p.  590. 
Rhodes   v.    Bate,   L.   R.    1    Ch.   252,   p. 

513. 
Ribou  V.  R.  R.  Cos.,  16  Wall.  446,  p. 

630. 
Riee   v.    Boston   etc.    Aid    Soc,    56    N. 

H.    191,  p.  245. 
Rice   V.   Boyer,    108    Ind.   472,   58   Am. 

Rep.  01,  9  N.  E.  420,  p.  505. 
Rice  V.  Bunce,  49  Mo.  231,  234,  8  Am. 

Rep.  129,  p.  392. 
Rice   V.   D'Arville,    162   :Mass.    559,    39 

N.  E.   180,  2  Keener  1071,  p.  820. 
Rice  V.  Rice,  2  Drew.  1,  73  H.  &  B.  23, 

1    Scott   334,   p.    193,   311,   314,   315, 

331.  339,  341,  748. 
Rice  V.  Rice,  36  Fed.  858,  860,  p.  748. 
Rice  V.  Sanders,   152  Mass.   108,  24  N. 

E.    1079,  23  Am.   St.  Rep.  804,  8  L. 

R.  A.  315,  p.  712. 
Rice  V.  Williams,  32  Fed.  437,  p.  839. 
Richards  v.  Collins,  45  N.  J.  Eq.  283, 

14  Am.  St.  Rep.  726,  17  Atl.  831.  p. 

783. 
Richards  v.  Delbridge,  L.  R.  18  Eq.  11, 

13,  Ames  Trusts   130,   H.   &   B.  385, 

Shep.   204,  p.   559,  561. 
Richards    v.    Dower,    64    Cal.    62,    28 

Pac.    113,    1    Ames    Eq.   Jur.    517,    p. 

843. 
Richards  v.  Humpiireys,   15  Pick.   133, 

135,  136,  p.  250. 
Kichai'ds  v.  Jackson,  18  Ves.  472,  474, 

p.   80. 
Richards'   Appeal,   57   Pa.   St.    105,   98 

Am.  Dec.  202,  1  Ames  Eq.  Jur.  574, 

p.   832. 
Richardson    v.    Chickering,    41    X.    H. 

380,   77   Am.   Dec.   769.   p.   376. 
Richardson   v.   De   Giverville,   107    Mo. 

422,  17   S.  W.  974,  28  Am.  St.  Rep. 

426,  p.  638. 
Richardson  v.  Greese,  3  Atk.  64,  65,  68, 

p.   242. 
Richardson  v.  Richardson,  L.  R.  3  Eq. 

686,  Ames  Trusts  156.  p.  559.  561. 
Eichi  V.  Chattanooga  Brewing  Co.,  105 

Tenn.  651,  58  S.  W.  646,  p.  98. 


Richmond    v.    Dubuque   etc.    R.    R.,"   33 

Iowa,   422,  487,   488,   p.    108. 
Ridden  v.  Thrall,  125  N.  Y.  572,  26  N. 

E.  627,  21   Am.  St.  Rep.   758,   11   L. 

R.   A.   684.  p.  666,  667,  669. 
Rider  v.    Kidder,    10   Ves.   360,   p.   590. 
Riegel  v.  American  L.  Ins.  Co.,  140  Pa. 

St.  193,  21  Atl.  392,  23  Am.  St.  Rep. 

225.  11  L.  R.  A.  857,  H.  &  B.  221,  3- 

Keener    191,   p.   437,   439. 
Riesz's  Appeal,  73  Pa.  St.  485,  1  Ames 

Eq.  Jur.  254,  p.  906. 
Rigden  v.   Vallierj   3   Atk.  735,  2  Ves. 

Sr.   252,  257,  258,  p.   189,  545. 
Riggs   V.    American   Tract   Society,    95 

N.  Y.  503,  p.  505. 
Rigney  v.  Tacoma  Light  &  W'ater  Co.,  9 

Wa.sh.  576,  38  Pac.  147,  26  L.  R.  A. 

425,  429,  p.  401. 
Riley  v.  Bell,  120  Iowa,  618,  95  X.  W. 

170,   p.   451. 
Riley    v.    Martinelli,    97    Cal.    575.    32 

Pac.  599,  33  Am.  St.  Rep.  209,  21  L. 

R.  A.  33,  p.  343. 
Rindge  v.  Baker,  57  X.  Y.  209,  15  Am. 

Rep.  475,  H.  &  B.  578,  p.  68,  915. 
Ringgold  V.  Ringgold,  1  Har.  &  G.   11, 

18  Am.   Dec.   250,   p.   622. 
Ringo    V.    Binns,    35   U.    S.    (10    Pet.) 

2()9.   p.   518. 
Ripple  V.  Ripple,  1  RaAvle,  386,  p.  264. 
Ritcliie    V.    (4riffiths,    1    Wash.    429.    25 

Pac.    341,   22    Am.    St.    Rep.    155,    12 

L.  R.  A.  384,  p.  294. 
Riverdale  Cotton  Mills  v.  Alabama  etc. 

Co.,  198  U.  S.  188,  25  Sup.  Ct.  629,  p. 

851. 
Roane  v.  Baker,  120  III.  308,  11  X.  E. 

246.  p.  345. 
Bobbins   v.    Larson,   69   Minn.   436,   72 

X.  W.  456,  65  Am.  St.  Rep.  572,  p. 

350. 
Roberson  v.  Rochester  Folding  Box  Co., 

171  X.  Y.  538,  546.  64  X.  E.  442,  89 

Am.  St.  Rep.  828,  59  L.  R.  A.  478.  1 

Scott  178,  Lewis  354,  p.  25,  29,  846. 
Roberts  v.   City   of  Louisville.   92   Ky. 

95,  36  Am.   St.  Rep.   469,   17   S.   W. 

216,  13  L.  R.  A.  844,  p.  822. 
Roberts  v.  Doan,  ISO  111.  187,  54  X.  E. 

207,  p.  340. 
Robertson  v.  Cooper,  1  Ind.  App.  78,  27 

X.  E.  104,  p.  330. 


TABLE   OF    CASKti    CITED. 


989 


Robertson   v.    Staed,    135    .Mo.    135,   58 

Aiu.  .St.  Hci).  5()9,  3()  S.  VV.  (ilO,  33 

L.  K.  A.  203,  p.  811. 
Robertson  v.   Wheeler,   102   111.  5«(J.  44 

X.  E.  870,  p.  300. 
Robinson    v.    City    of    Wilmington,    65 

Fed.  85G,   13  C.  C.  A.   177,  25  U.  8. 
.  App.  144,  p.  823. 
Robinson  V.   Dickey,   143   Ind.   205,   52 

Am.  St.  Rep.  417,  42  N.   E.   679,   p. 

68,  870. 
Robinson    v.    Geldard,    3    Macn.    &    G. 

735,   744,   745,   p.   660. 
Robinson  v.  Holt,  39  X.  H.  557,  75  Am. 

Dec.  233,  p.  528. 
Robinson    v.    Litton,    3    Atk.    209,     1 

Keener    436,    p.    829. 
Robinson  v.  Lord  Byron,   1  BrowTi  Cli. 

588,   1  Ames  Eq.  Jur.  566,  1  Keener 

836,    p.    848. 
Robinson   v.    Pickering,    L.    R.    16   Ch. 

Div.  371,  660,  p.  817. 
Robinson   v.    Pierce,    118   Ala.   273,   72 

Am.    St.    Rep.    160,    24    South.    984, 

991,  45  L.  R.  A.  66,  p.  596,  597. 
Robinson  v.  Robinson,  19  Beav.  494,  p. 

684. 
Robinson  v.  Robinson,  1  De  Gex,  }>l.  & 

G.   247,   254,  257,  Ames  Trusts  495, 

p.  613,  614,  615,  617,  620. 
Robinson  v.    Suburban   Brick   Co.,    ( C. 

C.  A.)    127   Fed.  804,  p.  491. 
Robinson  v.  Wall,  10  Beav.  61,  2  Phill. 

Ch.  372,  p.  493. 
Robinson  v.  Wheelright,  6  De  Gex,  M. 

&  G.  535,  546,  21   Beav.  214,  p.  644. 
Robinson   v.    Williams,   22   X.   Y.   380, 

Kirch.  274,  p.  703. 
Rol)son  V.  Doyle,  191  HI.  566,  61  X.  E. 

435,  p.  73,  80. 
Robson   V.    Flight,   4   De  Gex,   J.   &   S. 

608,  p.  607. 
Roby    V.    Bismarck    Xat.    Bank,    4    N. 

Dak.  156,  59  X.  W.  719,  50  Am.  St. 

Rep.  633,  p.  345. 

Roby  V.  Colehour,   135   111.  300,  25  X. 

E.  777.  p.  513. 
Rochester   v.    Levering,    104    Ind.    562, 

4  X.  E.  203,  p.  517. 
Rochester  Distilling  Co.  v.  Rasey,   142 

X.  Y.  570,  37  X.  E.  632,  40  Am.  St. 

Rep.  637.  p.  769. 


Rock    Island    &    P.    R.    Co.    v.    Dimick, 
144  111.  628,  32  X.  E.  291,  19  L.  R. 

A,  105,  p.  892. 
Rodgers   v.   Marshall,    17    Ves.   294,   p. 

252. 
Rodick  V.  Gandell,  1  De  Gex.  M.  &  G. 

763,  p.  766. 
Rogers  v.  Challis,  27  Beav.  175,  1  Ames 

Eq.  Jur.  61,  2  Scott  60,  2  Keener  66. 

p.  885. 
Rogers    v.    Ingham,    L.    R.    3    Ch.    Div. 

351,    356,    357,    3    Keener    75,    Shep. 

157,  2  Scott  572,  p.  425,  426,  437. 
Rogers  v.  .Jones,  3  Ch.  Div.  688,  689, 

H.  &   B.  131,  p.  230,  240. 
Rogers  v.  Rogers,  17  R.  I.  623,  24  Atl. 

46,  p.  64. 
Rogers  v.  Rogers,  67  S.  C.  168,  45  S. 

E.  176,  100  Am.  St.  Rep.  721,  p.  658. 
Rogers  v.  Tucker,  94  Mo.  346,  7  S.  W. 

414,  p.  345. 
Rogers  v.  \^'iley,  14  111.  65,  56  Am. 

Dec.   491,  p.   266. 
Rogers   Locomotive   Works   v.   Erie   R. 

R.,  20  X.  J.  Eq.  379,  H.  &  B.  734,  p. 

848. 
Rogers   Mfg.    Co.   v.    Rogers,   58    Conn. 

356,   20   Atl.    467,    18    Am.    St.    Rep. 

278,   7   L.  R.  A.   779,  2  Keener  295, 

H.  &  B.  629,  Shep.  294,  p.  819,  886. 
Rohrschneider    v.    Knickerbocker     Ins. 

Co.,  76  X.  Y.  216,  32  Am.  Rep.  290, 

p.  447. 
Rolfe  V.  Gregorj',  4  De  Gex,  J.  &  S.  576, 

579,   p.   472,   476,   594. 
Rolfe   V.    Peterson,   2    Brown    Pari.   C, 

Tomlin's  ed.  436,   p.  220. 
Rolfe  V.   Rolfe,    15   Sim.   88,   2   Keener 

218,  p.   817,   818,   820. 
Roll  V.  Rea,  .50  X.  .1.  Law,  264,  12  All. 

905,  p.  281. 
Rolland  v.  Hart.  L.  R.  6  Ch.  678.  681- 

683,  p.  307. 
Rolt  V.  Lord  Somerville,  2  Eq.  Cas.  Abr. 

759,  1    Ames  Eq.  .Jur.  471,   1   Keener 

435,  1   Scott  647,  p.  828,  829. 
Romaine  v.   Chauncey,   129  X"".   Y.   566, 

26  Am.  St.  Rep.  544,  29  X.  E.  820, 

14   L.   R.  A.   712,  p.  910. 
Romaine  v.  Hendrickson,  27  X^.  J.  Eq. 

162,    p.    515. 
Roman  v.  Mali,  42  Md.  513,  p.  475, 


990 


TABLE   OF    CASES    CITED. 


Romanoff  Land  &  Min.  Co.  v.  Cam- 
eron, 137  Ala.  214,  33  South.  864, 
p.  461. 

Hooke's  Case,  5  Coke,   99b,  p.  204. 

Rooney  v.  Michael,  84  Ala.  585,  4 
South.  421,  p.  132. 

Root  V.  L.  S.  &  M.  S.  R.  Co.,  105  U. 
S.  189,  26  L.  ed.  975,  Lewis  13,  p. 
837. 

Rorer  Iron  Co.  v.  Trout,  83  Va.  397, 
419,  2  S.  E.  713,  5  Am.  St.  Rep.  285, 
p.  275,  377,  378. 

Roscarrick  V.  Barton,  1  Cas.  Chan,  217, 

1  Scott  32,  p.  688. 

Rose  V.  Harden,  35  Kan.   106,  57  Am. 

Rep.   145,   10  Pae.  554,  p.  518. 
Rosenberg   v.    Frank,    58    Cal.    387,    p. 

670,   676. 
Ross  V.  Union  Pac.  R'y,  1  Woolw.  26, 

36,  Fed.  Cas.  No.  12,080,  2  Scott  05, 

2  Keener  145,  p.  887. 

Rothery  v.  N.  Y.  Rubber  Co.,  90  N.  Y. 

30,  1  Ames  Eq.  Jur.  567,  p.  833. 
Rouse    V.    Merchants'    Nat.    Bank,    46 

Ohio  St.  493,  22  X.  E.  293,  15  Am. 

St.  Rep.  644,  5  L.  R.  A.  378,  p.  595. 
Row  V.  Dawson,  1  Ves.  Sr.  331,  2  Lead. 

Cas.  Eq.,  4th  Am.  ed.,   1531,  p.  758, 

764. 
Rowley  v.   Bigelow,    12   Pick.   307,   23 

Am.  Dec.  607,  p.  375. 
Royal  Baking  Powder  Co.  v.  Royal,  122 

Fed.  337,  58  C.  C.  A.  499,  p.  840. 
Ruckman  v.  Decker,  23  N.  J.  Eq.  283, 

p.  312. 
Rudd  V.  Lascelles,  [1900]   1  Ch.  815,  1 

Ames  Eq.   Jur.   256,   p.   906. 
Rudy  V.   Austin,   56   Ark.   73,   35   Am. 

St.  Rep..  85,  19  S.  W.  Ill,  p.  5.32. 
Ruple  V.  Bindley   91    Pa.  St.  296,  299, 

Shep.  219,  p.  769,  771. 
Rushmer  v.  Pol.sue,   [1906]    1   Ch.  234, 

1  Scott  746,  p.  831. 
Russ  V.  Mebius  16  Cal.  350,  p.  589. 
Russel  V.  Russel,   1   Brown  Ch.  269,   1 

Lead.    Cas.    Eq.,    4th    Am.    ed.,    931, 

Kirch.    110,   p.   739,   755. 
Russell  V.  Clark's  Ex'rs,  7  Cranch,  69, 

p.   94. 
t.ussell  V.  East  Anglian  R'y,  3  Ma  en.  & 

G.  104,  p.  809. 
Russell  V.  Pistor,  7  N.  Y.  171,  57  Am. 

Dec.   509,  p.   385. 


Russell  V.  Russell,  129  Fed.  434,  p.  523. 
Russell  V.   Tate,   52   Ark.  '541,  20   Am. 

St.  Rep.   193,  13  S.  W.  130,  7  L.  R. 

A.  180,  p.  822. 
Russell  V.  Wakefield  Water  W.  Co.,  L 

R.   20   Eq.   474,  479,  481,  p.   030. 
Rust  V.  Conrad,  47  Mich.  449,  41   Am. 

Rep.  720,  11  X.  W.  265,  1  Ames  Eq. 

.lur.  435,  2   Scott   144,  p.   893. 
Rust   V.    Ware,    6    Gratt.    50,    52    Am. 

Dec.  100,  p.  854. 
Rutherford  v.   Haven,   11   Iowa   587,   1 

Ames   Eq.   Jur.   342,   p.   898. 
Rutherford   v.   Jones,    14   Ga.    521,    60 

Am.  Dec.  055,  p.  867. 
Rutland   Electric   L.    Co.    v.    Bates,    68 

Vt.    579,    54    Am.    St.    Rep.    904,    35 

Atl.  480.  p.  619. 
Ryall  V.  Rowles,  1  Ves.  Sr.  348,  1  Atk. 

165,  2  Lead.  Cas.  Eq.,  4th  Am.  ed., 

1533,  J 579.  p.  324. 
Ryall  V.  Ryall,  1  Atk.  59,  p.  591. 
Ryan  v.  Cudahy,  157  111.   108,  48  Am. 

St.  Rep.  305,  41  X.  E.  700,  49  L.  R. 

A.    353. 
Ryan  v.   Dox,   34   X.   Y.   307,   90   Am. 

Dec.  696,  H.  &  B.  488,  p.  003. 
Ryan  v.  Kingsberry,  88  Ga.  361,  14  S. 

E.  596,  p.  809. 
Ryan  v.  Maxey,  14  Mont.  81,  35  Pac. 

515.  p.  911. 
Ryan    v.    Mutual    Tontine    etc.    Assn. 

[1893]    1   Ch.  116,  2  Keener  179,  p. 

888. 
Ryder  v.   Bentham,   1   Ves.   Sr.   543,   1 

Ames  Eq.  Jur.  545,  1  Keener  835,  p. 

8.34. 


S. 


Sabin   V.   Anderson,   31    Oreg.    487,    49 

Pac.   870,  p.   911. 
Sable  V.   Maloney,  48   Wis.   331,   4    X. 

W.    479,   2    Ames    Eq.    Jur.    310,    p. 

431,    859. 
Saccharin  Corporation  v.  Chemicals  & 

Drugs  Co.,  [1900]  2  Ch.  550,  p.  80. 
Sackvill  V.  Aylesworth,  1  Vem.  105,  2 

Ames  Eq.  .Jur.  105.  p.  84. 
SafTold  V.  Wade's  Ex'r,  51  Ala.  214,  p. 

372. 
Saflford  v.  Ensign  Mfg.  Co.,   (C.  C.  A.) 

120  Fed.  480,  483,  p.  93. 


TABLE    OF    CASKS    CITED. 


991 


SaflFron  etc.  Soc.  v.  Rayner,  L.  R.  14  Ch. 

Div.  406,  409,  415,  p.  302,  305. 
St.  Aubyn  v.   Smart,  L.  R.  5  Eq.   183, 

3   Ch.  646,  650,  p.  471. 
St.  James'  Orphan  Asylum  v.  Shelby, 

60  Nebr.  796,  84  N.  W.  273,  83  Am. 

St.  Rep.  553,  p.  579. 
St.  Jo.  Mfg.  Co.  V.  Daggett,  84  111.  556, 

p.   398. 
St.  Joseph  &  D.  C.  R.  R.  v.  Smith,  19 

Kan.   225,  231,  p.   809. 
St.  Louis,  K.  &  S.  R.  Co.  v.  Wear,  135 

Mo.  230,  33  L.  R.  A.  341,  36  S.  W. 

357,  658,  H.  &  B.  823,  p.  808. 
St.    Paul    Trust    Co.    v.    Mintzner,    65 

Minn.   124,  60  Am.  St.  Rep.  444,  67 

X.  W.  657,  32  L.  R.  A.  756,  p.  806. 
Salomon  v.  Hertz,   40   X.   J.   Eq.   400, 

2  Atl.  379,   1   Ames  Eq.  Jur.   128,  p. 

817,   820. 
Salter  v.   Salter,   80   Ga..l78,   4   S.  E. 

391,  12  Am.  St.  Rep.  249,  p.  646. 
San  Antonio  Nat.  Bank  v.  Bamberger, 

77  Tex.  48,  13  S.  W.  959,  19  Am.  St. 

Rep.  738,  p.  446. 
Sanborn  v.   Doe,  92   Cal.    152,  23  Pac. 

105,  27  Am.  St.  Rep.   101,  p.  761. 
Sanborn  v.  Kittredge,  20  Vt.  632,  636, 

50  Am.  Dee.  58,  p.  93. 
Sanders  v.  Soutter,   136  N.   Y.   97,   32 

N.  E.  638,  p.  96,  97. 
Sanders    v.    Steele,    124    Ala.    415,    26 

South.  882,  p.  590. 
Sanders  v.  Vautier^  4  Beav.  115,  Ames 

Trusts,  454,  p.  553. 
Sanders  v.    Village  of  Yonkers,  63   N. 

Y.  489,  p.  874. 
Sanford  v.  Head,  5  Cal.  297,  298,  299, 

p.  672. 
Sanquirico  v.   Benedetti,    1   Barb.   315. 

2  Scott  85.  p.  819. 
Santley   v.    Wilde.    [1899]    1    Ch.    747 

Kirch.   488,   p.   698. 
Sarles  v.  McGee,  1  N.  Dak.  365,  48  N. 

W.  231,  26  Am.  St.  Rep.  633,  p.  297. 
Satterfield  v.   I\Ialone,   35   Fed.   445,    1 

L.   R.  A.   35,   p.  303. 
Saull   V.   Browne,   L.   R.    10   Ch.   64.   2 

Ames  Eq.  Jur.  100.  p.  851. 
Saunders  v.  Dehew,  2  Vern.  270,  271, 

Ames  Trusts  289.   p.   319,   347,   373. 
Saunders  v.  Xevil.  2  Vern.  428,  Ames 

Trusts  449,  p.  610. 


Savage   v.    Foster,   9   Mod.    35    1    Scott 

576,   p.    376,    504,    505. 
Savage  v.  Hall,  12  Gray,  363,  p.  383. 
Savage   v.   Murphy,   34   X.   Y.   508,   90 

Am.  Dec.  733,  8  Bosw.  75,  p.  604. 
Savage  v.  Savage,  19  Oreg.  112,  20  Am. 

St.  Rep.  795,  23  Pac.  890,  p.  867. 
Savannali   Xat.   Bank  v.   Haskins,    101 

:\Iass.  370,  3  Am.  Rep.  373,  p.  408. 
Savile's   Case,   Cas.   temp.   Talb.    l(i,    1 

Ames   Eq.   Jur.   472,   p.   829. 
SaA\yer,  In  re,  124  U.  S.  200,  8  Sup.  Ct. 

487,  31   L.  ed.  402,  Shep.  5,  p.  822, 

851. 
Sawj-er  v.  White,  122  Fed.  223,   (C.  C. 

A.)    p.  506. 
Saxon  L.  Ins.  Co.,  In  re,  1  De  Gex,  J. 

&  S.  29,  2  Johns.  &  H.  408,  2  Ames 

Eq.  Jur.  265,  p.  424. 
Say   v.    Barnes,    4    Serg.    &    R.    112.    8 

Am.  Dec.  679,  p.  521. 
Scanlon  v.  Grimmer,  71  Minn.  351,  70 

Am.  St.  Rep.  326,  74  X.  W.  146,  p. 

498,    712. 
Schafer  v.  Reilly,  50  N.  Y.  61,  67.  68, 

p.  332. 
Scheerer  v.  Cuddy,  85  Cal.  271.  24  Pac. 

713,  p.   279. 
Schell,  Matter  of,  53   X.  Y.   263,   265, 

H.  &  B.  543,  p.  623. 
Sohelling  v.  Mullen,  55  Minn.   122.  56 

X.  W.  586,  43  Am.  St.  Rep.  475,  p. 

;}30. 

Schlessinger  v.  Mallard,  70  Cal.  326,  11 

Pac.  728,  p.  587. 
Schmidt  v.  Louisville  &  X.  R.  Co.,  101 

Ky.  441,  41  S.  W.  1015,  38  L.  R.  A. 

S09,  p.  890. 
Schmucker  v.  Sibert.   18  Kan.   104,  26 

Am.  Rep.  765,  p.  713. 
Schneider  v.  Sellers,    (Tex.)    84  S.   W. 

417,  p.  370. 
Schoiield  v.  School  Dist.  27  Conn.  499. 

1>.  822. 
Schofield  V.   Ute   Co.,   92   Fed.   269.   34 

C.  C.  A.  334,  p.  911. 
Scholle  V.    Scholle,    101    X.    Y.    172.   4 

X.  E.  334,  p.  515. 
School    District   Xo.    1    v.    Weston,    31 

Mich.  85,  p.  793. 
School    District  Xo.   82  v.   Taylor,   19 

Kan.  287,  p.  348. 


992 


TAULE    OF    CASES    CITED. 


Schott  V.  Dosh,  49  Nebr.  187,  68  N. 
W.  346,  59  Am.  St.  Rep.  531,  p.  364. 

Schreiber  v.  Carey,  48  Wis.  208,  4  N. 
W.    124.  p.  805. 

Schuyler  v.  Curtis,  147  N.  Y.  434,  49 
Am.  St.  Rep.  671,  42  N.  E.  22,  31 
L.  R.  A.  286,  Lewis  344,  reversing 
27  Abb.  X.  C.  387,  15  N.  Y.  Supp. 
787,  64  Hun  594,  19  N.  Y.  Supp.  264, 

1  Keener  93,  p.  846. 

Schuyler    Steam    Towboat    Co.,    In    re, 

136  X.  Y.   169,  32  X.  E.  623,  20  L. 

R.   A.    391,   p.   808. 
Schwoerer   v.    Boylston   Market   Ass'n, 

99  Mass.  285,  2  Keener  483,  p.  775. 
Scofield.  V.   City  of  Lansing,   17   Mich. 

437,  p.   115. 
Scotch   Lumber   Co.   v.   Sage,   132   Ala. 

598,  90  Am.  St.  Rep.  932,  32  South. 

607,  p.  297. 
Sc-ott  V.  Freeland,  7  Smedes  &  M.  409, 

45  Am.  Dec.  310,  p.  520. 
Scott  V.  Hanson,  1  Sim.  13,  1  Russ.  & 

M.  128,  1  Ames  Eq.  Jur.  353,  2  Keen- 
er 887,  2  Scott  240.  p.  457. 
Scott  V.  Neely,  140  U.  S.  106,  11  Sup. 

Ct.     712.    714,    35    L.    ed.     358,    p. 

140,   142. 
Scott  V.  Onderdonk,  14  X.  Y.  9,  67  Am. 

Dec.    106,   2    Ames   Eq.    .Tur.    147.    1 

Keener  331,  p.  875.  876. 
Scott   V.    Rayment.    L.    R.    7    Eq.    112, 

2  Keener  75,  p.  885. 

Scott    V.    Tyler,    2    Brown    Ch.    431.    2 

Dick.  712,  2  Lead  Cas.  Eq.,  4th  Am. 

ed.,  429,  475,  478-480,  48-3-485,  486- 

493,  494-499,  p.  488,  489. 
Screven   v.    Clark,   48   Ga.    41,   p.   809. 
Scribner   v.    Collar,   40   Mich.    375,    29 

Am.  Rep.   541,  p.  517. 
Scudamore    v.     Scudamore,    Prec.     Ch. 

543,  1   Scott  315,  596,  3  Keener  947, 

p.   678,  682. 
Seagrave  v.  Seagrave,  13  Ves.  439,  443, 

p.  644. 
Sears   v.   Hotchkiss,   25   Conn.    171,    65 

Am.  Dec.  557,  p.  633. 
Seavey  v.  Drake,  62  X".  H.  393,  1  Ames 

Eq.  .Jur.  308.  p.  904. 
Seeley  v.   Bacon,    (X.   .T.   Eq.)    34   Atl. 

139,  3  Keener   139,  p.   ,340,   429. 
Seeley  v.  Jago,  1  P.  Wms.  389,  1  Scott 

635,  p.  684,  685. 


Selby    V.    Alston,    3    Ves.    339,    p.    58, 

379. 
Selby    V.    Case,    87    Md.    459,    39    Atl. 

1041,  p.  173. 
Sell  V.  West,  125  Mo.  621,  46  Am.  St. 

Rei).  508,  28  S.  W.  969,  p.  24. 
Sellon    V.    Braden,    13    Iowa,    365.    p. 

191. 
Sengf elder   v.   Hill,   21    Wash.   371,   58 

Pac.  250,  p.  356. 
Sen^enderfer  v.  Kemp,  83  Mo.   581,  p. 

263. 
Sercomb  v.  Catlin,  128  111.  556,  15  Am. 

St.  Rep.  147,  21  X.  E.  606,  p.  809. 
Seton    V.    Slade,    7    Ves.    265,    273,    2 

Scott  332,  p.  697,  898,  899. 
Sewall    V.    Boston    Water    Works,    4 

Allen,  277,  81  Am.  Dec.  701,  p.  336. 
Sexton  V.  Wheaton,  8  Wheat.  229.  230, 

1   Am.   Lead.   Cas.,  4th  Am.   ed.    17, 

.50,  51,  p.  531. 
Seymour   v.    Cushway,    100    Wis.    580, 

7   X.   W.  769,  69  Am.  St.  Rep.  957, 

p.  604. 
Seymour  v.  Delancey,  6  Johns.  Ch.  222, 

224,   225,   3    Cow.  455,    15   Am.   Dec. 

270,  2  Keener  772,  p.  482,  483. 
Seymour    v.    McKinstry,     106    X.    Y. 

230.  238,  12  X.  E.  348,  14  X.  E.  94, 

p.  367. 
Shaeffer  v.  Chambers,  6  X.  .T.  Eq.  548, 

47  Am.  Dec.  211,  Kirch.  548.  p.  718, 

719. 
Shahan  v.  Swan,  48  Ohio  St.  25.  29  Am. 

St.  Rep.  517,  26  N.  E.  222,  2  Scott 

219,  2  Keener  726,  p.  903. 
Shappirio  v.  Goldberg,   192  U.   S.  232. 

24  Sup.  Ct.  259,  p.  475. 
Sharon  v.  Gager,  46  Conn.  189,  2  Scctt 

713,  p.  509. 
Sharon    v.    Hill,    20    Fed.    1,    36    Fed. 

337,   2   Ames   Eq.   Jur.    161,   p.    860, 

861. 
Sharon  v.  Tucker,  144  U.  S.  542,  12 

Sup.  Ct.  720,  1  Keener  392,  Shep. 

47. 
Sharp    V.    Ropes.     110    Mass.    381,    2 

Keener  .504,  p.  776. 
Sharp  V.   Wightman.  205  Pa.  St.  285, 

54   Atl.  888,  p.  244. 
Sharpe  v.  Foy.  L.  R.  4  Ch.  35,  37,  40, 

41,  p.   365,   376.   .504. 


TA15LK    or    CASES    CITED. 


993 


Sharpies  v.  Adams,  32  Beav.  213,  2IU, 

p.  347. 
Shattock  V.  Shattock,  L.  K.  2  Eq.   182, 

p.  650. 
Shaw  V.  Coster,  8  Paige,  339,  35   Am. 

Dec.  690,  1   Keener  235,  p.  790,  794, 

797,  798. 
Shaw   V.    Foster,   L.   R.    5    H.    L.    321, 

p.  753. 
Shea's    Appeal,    121    Pa.    St.    302,    15 

Atl.   629,   1   L.   R.  A.  422,  p.  514. 
Sheehan    v.    Hamilton,    2    Keyes,    304, 

4  Abb.  App.  211,  p.  380. 
Slieffield  Furnace  Co.  v.  Witherow,  149 

U.  S.  574,  579,   13  Sup.  Ct.   936,  37 

L.  ed.  853.  p.  141. 
Sheffield  Water  Works  v.  Yeomans,  L. 

R.    2    Ch.    8,    11.    2    Ames    Eq.    Jur. 

67,   1   Keener   130,  Shep.   39,  p.   111. 
.Shelfer  v.  London  EI.  L.  Co.,   [1895]    1 

Ch.    287.    1    Ames    Eq.    Jur.    589.    p. 

832,  8.33. 
Shelton   v.    Piatt.    139    U.    S.    595,    11 

Sup.   Ct.   646.  35  L.   ed.  276,  p.  823. 
Shepherd    v.    May,    115    U.    S.    505,    6 

Sup.  Ct.   119,  29  L.  ed.  456,  p.  711. 
Sheppard    v.    McEvers,    4    Johns.    Ch. 

136,  8  Am.  Dee.  561,  p.  624. 
Sheriden  v.  Andrews,  49  N".  Y.  478,  p. 

284. 
Sherman    v.     Fitch,     98    Mass.     59,     2 

Ames   Eq.   Jur.    14.   p.    874. 
Sherman   v.    Lewis.    44   Minn.    107,    46 

N.  W.  318,  p.  232. 
Sherman  v.   Sherman,  4  Allen  392,   p. 

656. 
Sherrill    v.    Sherrill,    73    N.    C.    8,    p. 

402. 
Sherrj'   v.    Perkins,    147    Mass.    212.    9 

Am.   St.  Rep.   689,    17   N.   E.   307.    1 

Scott   766,    1    Keener    771,    H.    &    B. 

770,  p.  846. 
Sherwood    v.    Sherwood,    45    Wis.    357, 

30    Am.    Rep.    757,    p.    438. 
Shields  v.   Lozear,   34  X.   J.   L.   496,  3 

Am.   Rep.    256,   Kirch.    728,    p.    687, 

692. 
Shipman   v.    Furniss,   69   Ala.   555,   44 

Am.   Rep.   528.   p.   523. 
Shirley    v.    Goodnough,    15    Oreg.    642, 

16   Pac.   871,   p.    919. 
Shoemaker  v.   Hinze,   53   Wis.    116,    10 

N.  W.  86,  Ames  Trusts  29,  p.  569. 
63 


Sliotwell    V.    Smitli,    20    N.    J.    Eq.    7!), 

p.    77. 
Shotwell    V.    Strube,   21    X.    J.    Eq.    31, 

I..  82. 
Siireve    v.    Brereton,    51     Pa.    St.    175, 

180,   p.   221. 
Shropshire    Union    Railways    &    Canal 

Co.    V.    Reg.,    L.    R.,    7    IL    L.    496, 

Ames  Trusts  300,  p.  338. 
Shubrick    v.    Guerard,    2    Desaus.     (S. 

C.)    616,   1    Scott   687,   p.   844. 
Shute  V.  Shute,  Prec.  Ch.   Ill,  p.  864. 
Shuttleworth    v.    Greaves,    4    Mylne    & 

C.   35,  p.   664. 
Shuttleworth  v.  Laycock,   1   Vern.  244, 

1    Scott  264,   p.    178. 
Sichel    V.   Mosenthal,   30    Beav.    371.   2 

Keener    72,    p.    885. 
Sidenberg  v.  Ely,  90  X.  Y.  263,  43  Am. 

Rep.  163,  Kirch.  564,  p.  719. 
Simmons    v.    Burlington,    C.    R.    &    X. 

R'y  Co.,  159  U.  S.  278,   16  Sup.  Ct. 

1,  40  L.  ed.  150,  p.  732. 
Simmons  v.  Hendricks,  8  Ired.  Eq.  84, 

86.  55  Am.  Dec.  439,  p.  675. 
Simmons    v.    Oliver,    74    Wis.    633,    43 

X.  W.  551,  H.  &  B.  524,  p.  615. 
Simmons    v.    Palmer.    93    Va.    389,    25 

S.  E.  6,  3  Keener  393.  p.  428. 
Simmons    Creek    Coal    Co.    v.    Doran, 

142  U.   S.   417,    12   Sup.   Ct.   239.   35 

L.    ed.    1063,    1    Scott    549.    p.    199, 

274,    279. 
Simmons   Hardware   Co.   v.    ^^ail)el.    1 

S.   Dak.   488,   36   Am.   St.   Rep.   755, 

47  X.  W.  418,  11  L.  R.  A.  267,  H.  & 

B.  817,  p.  802,  817. 

Simpson    V.    Hinson.    88    Ala.    527.    7 

South.  264,  p.  266. 
Simpson  v.   Lord  Tfowden,  3   iMylne  & 

C.  97,   108,  2  Ames   Eq.   Jur.    124,    1 
Keener   323,   p.   850,   860,   875. 

Simpson  v.   Pearson,   31    Ind.   1,   5.   99 

Am.  Dec.  577,  p.  399. 
Simpsoft    V.    Vaughan,    2    Atk.    31,    2 

Scott  542,  p.  191. 

Singer  Mfg.  Co.  v.  June  Mfg.  Co..  163 
U.   S.    169,  p.   840. 

Singer  Sewing-Mach.  Co.  v.  I'nion 
etc.  Co..  1  Holmes.  253,  Fed.  Cas. 
Xo.  12.904,  1  Ames  Eq.  Jur.  438,  2 
Keener  255,   p.   818,   893. 


994 


TABLE    OF    CASES    CITED. 


Sinnett  v.  Herbert,  L.  R.  7  Ch.  232,  p. 

581. 
Sipley  V  Wass,  49  N.   J,  Eq.   463,  24 

Atl.    233,    p.    252. 
Skarf  V.   Soulby,   1    Macn.   &   G.   364, 

374,   p.    530. 
Skellinger's      Ex'rs      v.       Skellinger's 

Ex'rs,  32  X.  J.  Eq.  G59,  H.  &  B.  442, 

p.   589. 
Skelton  v.   Skelton,  2   Swanst.    170.    1 

Ames   Eq.   Jur.   473,    1    Keener   430, 

1  Sfott  656,  p.  827,  829. 

Skinner  v.   Dayton,  2  Johns.   Ch.   526, 

534,    535,     17    Johns.    339,    357,    p. 

214,  224. 
Skinner   v.    Juclson.    8    Conn.    528,    21 

Am.  Dec.  691.  p.  81. 
Skipwith  V.   Strother,  3  Rand.  214.   p. 

499. 
Slack  V.   Blacky   109  Mass.   496.  p.   78. 
Slaney  v.  Sidney,  14  Mees.  &  W.  800, 

2  Ames   Eq.    Jur.    11,    p.    800. 
Slanning    v.    Style,    3    P.    Wnis.    334, 

337-339,    Ames   Trusts    164,   p.    638, 

656. 
Slater  v.  Oriental  Mills,  18  R.  I.  352, 

27  Atl.  443,  H.  &  B.  466,  p.  598. 
Slaughter's  Adm'r  v.  Gerson,  13  Wall. 

379,  2  Scott  721,  p.  455,  458. 
Sleeper  v.  Davis,  64  N.  H.  59,  6  Atl. 

201,  10  Am.   St.  Rep.  377,  p.  361. 
Slegel  V.  Herbine,  148  Pa.  St.  236,  23 

Atl.  996,  15  L.  R.  A.  .547,  p.   100. 
Slim  V.   Croucher,   1   De  Gex,  F.   &  J. 

518,   523,   524,   525,   528,   2   Giff.   37, 

p.    471. 
Slingerland    v.    Slingerland,    39   Minn. 

197,  39  N.  W.   146,  2  Keener  701,  p. 

904. 
Slingsby  v.  Boulton,   1  Ves.  k  B.  334, 

2  Ames  Eq.   Jur.   33,   1   Keener  216, 

p.    795, -797. 
Sloan    V.    Campbell,    71    :Mo.    387,    36 

Am.   Rep.   493,   p.    750. 
Sloan  V.  Gibbes,  56  S.  C.  480,  76  Am. 

St.  Rep.  559,  35  S.  E.  408,  p.  914. 
Sloman  v.   Walter,   1    Bro^\^l   Ch.   418, 

2  Lead.  Cas.  Eq.,  4th  Am.  ed.,  2014, 

2023,  2044,  p.  170,  214. 
Slowey  V.  McMurray.  27  Mo.  113,  116, 

72   Am.  Dec.   251,   p.   700. 
Smith,   In   re,    108    Cal.    115,    40   Pac. 

1037,  p.   239. 


Smith    V.    Allen,    1    N.    J.    Eq.    43,   21 

Am.  Dec.   33,  p.  434. 
Smith  V.  Aykwell,  3  Atk.  566,  2  Ames 

Eq.  Jur.   132,  p.  860. 
Smith  V.  Bank  of  New  England,  69  N. 

H.   254,   45  Atl.    1082,  2   Ames   Cas. 

Eq.  79,  p.   117,   124. 
Smith   V.    Bergengren,    153   Mass.   236, 

26   X.   E.   690,    10   L.   R.  A.   768,   p. 

217. 
Smith  V.  Bowen,  35  X.  Y.  83,  p.  568. 
Smith   V.    Burgess,    133   Mass.    513,    p. 

280. 
Smith  V.   Butler,   11   Oreg.   40,  4   Pac. 

517,    p.    439. 
Smith    V.    Cherrill,    L.   R.    4    Eq.    390, 

395,  p.  531. 
Smith   V.   Clark,    12   Ves.   477,   p.    464. 
Smith   V.    Claxton,    4   :Madd.    484.    492. 

1    Scott  625,  3  Keener,   979,  p.   683. 
Smith   V.    Clay,    3    Brown    Ch.    63S.    1 

Scott  379,  p.   198. 
Smith   V.    Collyer,   8   Ves.   89,    1    Scott 

683,  1  Ames  Eq.  Jur.  489,   1   Keener 

547,    p.    842. 
Smith  V.  East  India  Co.,   1   Phill.  Ch. 

50,   p.   81. 
Smith    V.    Halkyard,    16    Fed.    414,    p. 

830. 
Smith  V.  Hatch,  46  X.  H.  146,  1  Ames 

Eq.  Jur.  277,  p.  902. 
Smith  V.  Kay,  7  H.  L.  Cas.   750,  775, 

779,   p.    509,    513. 
Smith  V.  Leveaux,  2  De  Gex,  J.   &   S. 

1,    3    Keener   913,    p.    919. 
Smith    V.    Lucas,    L.    R.    18    Ch.    Div. 

531,    p.    639. 
Smith   V.   Matthews,   3   De   Gex,    F.    & 

J.   139,  p.   568. 
Smith  V.    Newton,   .38   111.   2.30,   p.   396. 
Smith   V.   Richards,    13    Pet.   26,   36.   3 

Keener  525,  2  Scott  652,  p.  452,  453, 
Smith    V.    Roberts,    91    X.    Y.    470,    p, 

382,   383. 
Smith  V.  Sands,  24  Fed.  470,  p.  835. 
Smith  V.   Smith,  3  Atk.  304,  p.  785. 
Smith   V.    Smith.   L.   R.   20  Eq.   500,    1 

Ames    Eq.    Jur.    543,    p.    834. 
Smith  V.    Smith,    148    Mass.    1,    18    X. 

E.    595,   2   Ames    Cas.    Eq.    Jur.    64, 

p.   117. 
Smith   V.    Smith's   .\dm'r,   92   Va.    696, 

24  S.  E.  280,  p.  666. 


TABLE   OF    CASES    CITED. 


995 


Smith  V.   TowTishend,   27   Md.   3G8,   92 

Am.  Dec.  637.  j).  .51(i. 
Smith    V.    Turner,    Prec.    Ch.    561,    1 

Ames   Eq.   Jur.   282,   p.   901. 
Smith  V.   White,   L.   E.    1    Eq.   626,   p. 

500. 
Smith  V.   Whitmore,   2   De   Gex,   J.   & 

S.   297,  p.   478. 
Smith  V.  Willard,   174  111.  538,  51   N. 

E.    835.,    66    Am.    St.    Rep.    313,    p. 

373. 
Smith  V.   ^Yorster.   59   Kan.   640,   644, 

54   Pac.   676,   68   Am.   St.   Rep.   385, 

388,  p.  287. 
Smith   V.    Yiile,   31    Cal.    180,   89   Am. 

Dec.    167,    p.    300. 
Smithsonian    Institute    v.    Meech,    169 

U.  S.  398,   18  Sup.  Ct.  Rep.  396,  42 

L.  ed.  793,  p.  591,  592. 
Smithurst   v.    Edmunds,    14    N.   J.    Eq. 

408,  Kirch.  61,  p.  769. 
Smoot  V.   Judd,   161   Mo.   673,  84  Am. 

St.  Rep.  738,  61   S.  W.  854,  p.  854. 
Smythe  v.  Henn,^,  41  Fed.  715,  p.  76. 
Sniythe  v.   Xew  Orleans  C.   &  B.   Co., 

34  Fed.  825,  affirmed,  141  U.  S.  656, 

12  Sup.  Ct.  113,  p.  122. 
Sncll  V.  Atlantic  Ins.  Co.,  98  U.  S.  85, 

3  Keener  80,  p.  419. 
Snover  v.  Squire,    (X.  J.  Eq. )    24  Atl. 

365,  p.   326. 
Snowden    v.    General    Dispensary,    60 

Md.   85,   p.    103. 
Snyder  v.   Grandstaff,   96   Va.   473.   31 

S.   E.   647,   70  Am.   St.  Rep.   863,   p. 

367,   374. 
Snyder    v.    Hopkins,    31    Kan.    557,    3 

Pae.    367,    1    Ames   Eq.    Jur.    509,   p. 

844. 
Snyder  v.  Martin,   17   W.  Va.   276,   41 

Am.  Rep.  670,  p.  342. 
Snyder  v.   Partridge,    138   111.    173,   29 

N.  E.   851,  32  Am.   St.  Rep.   130,  j.. 

319. 
Snyder    v.    Robinson,    35    Ind.    311,    9 

Am.  Rep.  738,  p.  712. 
Societe   Generale   de   Paris   v.    Walker, 

11   App.   Cas.  20,  affirming   14  Q.   B. 

D.  424,  p.  328. 
Sohier  v.  Burr,   127  Mass.  221,  p.  580. 

CuG. 
Solinger  v.   Earlo.   82   N.   Y.   393,   397. 

399,  H.  &  B.  527,  p.  498,  500,  527. 


Sollory  V.   Leaver,   L.  R.   9  Eq.   22,  p. 

806. 
Soltau  V.  De  Held,  2  Sim.  N.  S.,  133. 

1    Keener  665,    1    Scott   717,   p.   831. 
Somerby    v.    Buntin,    118    Mass.    279, 

287,    19    Am.    Rep.    459,    2    Keener 

78,  p.   885. 
Sonley  v.  Clock  Makers'  Co.,  1  Br.  Ch. 

Cas.    81,   Ames   Trusts.    225.    p.    567. 
Sopwith    V.    Mangham,    30    Beav.    235, 

239,    p.    238,    239. 
Sourwine   v.    Supreme   Lodge,    12    Ind. 

App.  447,  452,  453,  54  Am.  St.  Rep. 

531,  .532,  536,  40  X.  E.  646,  1   Scott 

320,  p.  44,   157,   164. 
Southard  v.  Curley,  134  X.  Y.  148,  31 

X.  E.  330,  30  Am.  St.  Rep.  642,   16 

L.  R.  A.  561,  3  Keener  460,  2  Scott 

646,  p.  431. 
Southerland    v.    Fremont,    107    X.    C. 

565,   12  S.  E.  237,  p.  361. 
Southern   B.    &   L.    Ass'n   v.    Anniston 

L.    &    T.    Co.,    101    Ala.    582,    29    L. 

R.  A.  120,  15  South.  123,  46  Am.  St. 

Rep.   138,  p.  227. 
Southern    Development    Co.    v.    Silva, 

125  U.  S.  247,  8  Sup.  Ct.  881,  H.  & 

B.   282,  p.   446,  453,   457,  458. 
Southern    R'y    Co.    v.    Carnegie    Steel 

Co.,  176  U.  S.  257.  20  Sup.  Ct.  347. 

44  L.  cd.  458,  p.  810. 
Southern  R'y  Co.  v.  City  of  Asheville. 

69  Fed.  359,  p.  823. 
Soutliwestevn    Brush    etc.    Co.    v.    La. 

etc.  Co.,  45  Fed.  893. 
Sowles  V.  Hall,  62  Vt.  247.  22  Am.  St. 

Rep.     101.    20    Atl.    810,    2    Keener 

1117,  p.  899. 
Spain  V.   Hamilton,   1   Wall.   604,   624, 

p.    325. 
Sparks    v.    Company   etc.    of    Liver])ool 

Water  Works,  13  Ves.  428,  433.  434. 

p.    227. 
Sparks  v.  Woodstock  Iron  etc.  Co..  87 

Ala.  294,  6  South.  195,  p.   172. 
Spect   v.    Spect,   88    Cal.   437.   22    Am. 

St.  Rep.  314,  26  Pac.  203,   13  L.  R. 

A.    137,  p.  695. 
Speer  v.   Craw-ter^  2  Mqt.   410.  417,   p. 

866. 
Speight  v.  Gaunt.  22  Ch.  Div.  727,  on 

appeal,    9    App.    Cas.     (H.     L.)     1. 

Ames  Trusts  518,  p.  611,  612. 


996 


TABLE    OF    CASES    CITED. 


Speke  V.   Walrond,   Toth.    155,  p.   867. 
f^pence    V.    Har\'ev,    22    Cal.    337,    83 

Am.  Dec.  69,  p.  495. 
Spielmann  v.  Kliest,  30  N.  J.  Eq.  199, 

202,  206,  p.  293. 
Spinning  v.    Sullivan,   48   Mich.   5,    11 

N.  W.  758,  p.  330. 
Spirett  V.  Willows,  3  De  Gex,  J.  &  S. 

293,  302,  303,  p.  530,  532. 
Spooner    v.    Travelers'     Ins.     Co.,     76 

Minn.  311,  77  Am.  St.  Rep.  651,  79 

X.  W.  305,  p.  911. 
Sporle   V.   Wliayman,   20   Beav.   607,  2 

Keener  55,  p.  884. 
Sprague    v.    West,    127    Mass.    471,    1 

Keener  255,  p.  795. 
Spread  V.  Morgan,   11  H.  L.  Cas.  588, 

p.  238,  239. 
Springhead   Spin.   Co.   v.   Riley,   L.   R. 

6   Eq.    551,    1    Scott   763,   Lewis   204, 

p.    846. 
Spurlock  V.   Bro\\Ti,   91   Tenn.   241,    18 

S.  W.  868,  p.  416. 
Squire    v.    Harder,    1    Paige,    494,    19 

Am.    Dec.   446,   p.    589. 
Stackpole  v.   Beaumont,  3  Ves.  89,  95, 

96,  p.  488. 
Stafford    v.    Fetters..    55    Iowa,    484,    8 

N.  W.   322,   H.   &  B.   191,   3   Keener 

86,  p.   419. 
Staflford   v.    Stafford,    1    De   Gex   &   J. 

193,  197,  p.  399. 
Staines   v.    Sliore.    16    Pa.    St.   200,   55 

Am.    Dec.    492,   p.    493. 
Standard  El.  Co.  v.  Crane  El.  Co..  56 

Fed.    718,   6    C.   C.    A.    100,    1    Ames 

Eq.  Jur.  663,  p.  836. 
Stanford  v.  Hurlstone,  L.  R.  9  Ch.  116, 

118,   119,   1   Keener  613,  p.   843. 
Staniland    v.    Willott,    3    JIacn.    &    G. 

664,   674-677.   680,   p.   666,  669. 
Stanton  v.  Singleton,   126  Cal.  657,  59 

Pac.  146,  47  L.  R.  A.  334,  p.  889. 
S^apilton    v.    Stapilton,    1    Atk.    2,    2 

Lead.  Cas.  Eq.,  and  notes,  1675,  4th 

Am   ed.,   p.   428. 
Starbird  v.  Cranston,  24  Colo.  20,  48 

Pac.   652,  p.   713. 

Stark  V.   Starr.s,   6   Wall.   402,   p.   873. 

rstarkie   v.    Richmond,    155   Mass.    188, 

29  N.  E.  770,  1  Keener  871,  p    534. 


State  v.  County  Court  of  Saline  Coun- 
ty, 51  Mo.  350,   11  Am.  Rep.  454.  p. 

822. 
State  v.  Hall,  70  Miss.  678,  13  South. 

39,  p.  227. 
State   v.    Kittelle,    110   N.    C.    560,   28 

Am.   St.  Rep.  698,  15  L.  R.  A.  694, 

15   S.    E.    103,   p.   302. 
State   v.    Lord,   28   Oreg.    498.    43    Pac. 

471,   31   L.   R.   A.   473,  p.   822. 
State  v.   McBride,  76  Ala.  51,  p.   227. 
State    v.    Ohio    Oil    Co.,    150    Ind.    21, 

47    L.    R.    A.    627,   49   X.   E.    809,    1 

Scott    731,   p.    830. 
State  V.  Ross,   122  Mo.  435,  25  S.  W. 

94T,  23  L.  R.  A.  534,  p.  806. 
State  V.   Second  Judicial  Dist.   Ct.    15 

Mont.  324,  48  Am.  St.  Rep.  682,  39 

Pac.  316,  27  L.  R.  A.  392,  p.  806. 
State     V.    Superior     Court,     8     Wash. 

210,  35  Pac.   1087,  25  L.  R.  A.  354, 

p.    809. 
State  V.  Superior  Court.   17  Wash.   12, 

61    Am.   St.   Rep.    893,   48   Pac.    741, 

p.    822. 
State    Bank    v.    Belk,     (Xeb.)     94    X. 

W.     617,    p.    911. 
State    Bank   v.    Frame,    112    Mo.    502, 

20  S.  W.  620,  p.  361. 
State   of  Georgia  v.   Stanton,   6   Wall. 

10,    18    L.    ed.    721,    p.    822. 
Stead  V.  Mellor,  L.  R.  5  Ch.  Div.  225, 

Ames  Tinists  91,  p.  571,  572. 
Stearns   v.   Perrin,    130   Mich.   456,   90 

N.  W.  297,  p.  236. 
Stearns-Roger  Co.  v.  Bro\\Ti,  114  Fed. 

939,    (C.   C.   A.),   p.   837. 
Steedman  v.  Weeks,  2  Strob.  Eq.   145, 

49   Am.   Dec.   660,   p.   870. 
Stephens  v.  Board  of  Education,  79  X. 

Y.   183,  35  Am.  Rep.  511,  p.  476. 
Stephens    v.    Clay,    17    Colo.    489,    30 

Pac.    43,    31    Am.    St.    Rep,    328,    p. 

727. 
Sternberg  v.  Wolff,  56  X.  J.  Eq.  389, 

67   Am.   St.   Rep.    494,   39   Atl.   397, 

39  L.   R.  A.  762,  p.  807.       * 

Sternberger    v.    McGovern,    56    N.    Y. 
12,    2    Keener    12.32.    p.    906. 

Sterne  v.  Beck,  1  De  Gex,  J.  &  S.  595, 
600,  601,  11  Week.  Rep.  791,  p.  218. 


TABLE    OF    CASES    CITED. 


997 


Steriy    v.    Arden,    I    Johns.    Ch.    261, 

270,   12  Johns.  536,   1   Scott  502,  p. 

533,    534. 
Stetson   V.    Chicago    &   E.    R.    Co.,    75 

111.    74,    1    Ames    Eq.    Jur.    595,    p. 

824. 
Stevens  v.  Beekman,  1  Johns.  Ch.  318. 

1  Keener  553,  1  Scott  688,  p.  843. 
Stevens  v.  Dennett,  51  N.  H.  324,  330, 

333,  p.  389. 
Stevens    v.    Grand    Central    Min.    Co., 

(C.  C.  A.)    133  Fed.  28,  p.  199. 
Stevens  v.   Keating,   2  Ph.   Ch.   333,   1 

Ames   Eq.   Jur.    627,  p.   836. 
Stevens  v.   Ludlum,   46  Minn.    160,  24 

Am.    St.    Rep.    210,    48    N.    W.    771, 

13   L.  R.  A,  270,  p.  397. 
Stevens  v.  St.  Mary's  Training  School, 

144   111.   336,   36   Am.   St.   Rep.   438, 

32   N.   E.   962,   18   L.   R.   A.   832,   p. 

822. 
Stevenson   v.    Anderson,    2    Yes.    &    B. 

407,  2  Ames  Eq.  Jur.  43,   1    Keener 

270,  p.  799. 
Stewart  v.   Austin,   L.   R.   3   Eq.    299. 

306,  p.  452. 
Stewart   V.    East    India    Co.,   2    Vem. 

380,  p.  79. 
Still   V.   Ruby,   35   Pa.    St.   373,   Ames 

Trusts   219,    p.    549. 
Stinchfield    v.    Milliken,    71    Me.    567, 

H.  &  B.  47,  Shep.  62,  p.  697,  701. 
Stock  V.   Jefferson,   114  Mich.   357,   72 

N.  W.  132,  38  L.  R.  A.  355,  p.  832. 
Stockbridge   Iron   Co.   v.    Hudson   Iron 

Co.,    107    Mass.    290,    3    Keener    54, 

p.    419. 
Stocker   v.    Wedderbuni,   3    Kay   &   J. 

393,  2  Keener  801,  p.  893. 
Stone  V.  Bevans,  88  Minn.  127,  97  Am. 

St.  Rep.  506,  92  N.  W.  520,  p.  634. 
Stone  V.  Godfrey,  5  De  Gex,  M.  &  G. 

76,  90,  p.   418. 
Stone   V.    Pratt,   25    111.    25,   34    H.    & 

B.  652,  2  Scott  293,  p.  184. 

Stone  V.   Reed,    152   Mass.    179,   25   N. 

E.  49,   1   Keener  304,  p.  795,  798. 
Stone   V.   Stone.   32   Conn.    142,   p.   65. 
Stone   V.    Westcott,    18    R.    1.    685,    29 

Atl.   838,  p.   552. 
Storer   v.   Great    \V.    R'y.   2   Younge   ft 

C.  Ch.  48,  2  Keener  141,  p.  888,  889. 


Storrs    V.    Barker,    6    Johns,    Ch.    166, 

168,    10  Am.   Dec.   316,   p.   318.   394. 
Story  V.   N.   Y.  etc.   R.   R.   Co.,   90   N. 

Y.   122,  43  Am.  Rep.   146,  p.  824. 
Stout    V.    Philippi    Mfg.    &    Merc.    Co., 

41    W.    Va.    339,    23    S.    E.    571.    56 

Am.   St.   Rep.   843,   853-878,  p.   284, 

285. 
Stovall   V.    McCutcheon,    107    Ky.    577, 

92  Am.  St.  Rep.  373,  54  S.  W.  969, 

47   L.   R.   A.   287,   p.    108. 
Stratton   v.    Edwards,    174   Mass.    374, 

54  N.  E.  886,  p.  566. 
Stratton  v.   Gildersleeve,  41   Atl.    1117 

(N.  J.),  p.  564. 
Strickland  v.  Symans,  26  Ch.  Div.  245, 

Ames  Trusts,  418,  p.  624, 
Strobel   v.   Kerr   Salt   Co.,    164   N.    Y. 

303,  79  Am.  St.  Rep.  643,  51   L.  R. 

A.   687,  58  N.  E.   142,  p.   834. 
Strong   V.    Clem,    12    Ind.   37,    74   Am. 

Dec.  200,  p.  865. 
Strong  V.  Van  Deursen,  23  N.  J.   Eq. 

369,  p.  345. 

Strong  V.   Williams,    12   Mass.    389,    7 

Am.    Dec.    81,    H.    &    B.    140,    Shep. 

127,  p.  242. 
Stronge   v.   Hankes,    4   De   Gex,   M.    & 

G.   186,  4  De  Gex  &  J.  632,  p.  349. 
Stuart  V.   Boulware,   133  U.   S.   78,   10 

Sup.  Ct.  244,  33  L.  ed.  568,  p.  811. 
Stuart  V.  City  of  Easton,  74  Fed.  8.54, 

21  C.  C.  A.  146,  39  U.  S.  App.  238, 

p.   578. 
Stump  V.   Gaby,  2   De  Gex,  M.   &   G. 

623,   630,   p.    168,   535. 
Sturgis  V.   Champneys,   5   Mylne   &    C. 

97,    101,    102,    105,    p.    176,    646. 
Sturgis  V.  Work,   122  Ind.   134,  22  N. 

E.    996,    17    Am.    St.    Rep.    349.    p. 

438. 
Stuj'vesant  v.  Hall,  2  Barb.   Ch.   151, 

158,  p.  296. 
Stuyvesant  v.  Hone,  1   Sand.  Ch.  419, 

p.   296. 
Sublett    V.    McKinney,     19    Tex.    483, 

Shep.  73,  p.  916. 
Suessenguth  v.  Bingenheimer,  40  Wis. 

370,  p.  445. 

Suisse  V.   Lowther,   2   Hare,  424,  429- 

438,   p.   244,   240. 
Summers   v.    Griffiths.   35    Beav.    27,    3 

Keener  509,  p.  483,  485. 


998 


TABLE    OF    CASES    CITED. 


Sumner   v.   Seaton,   47   X.   J.   Eq.    103, 

19  Atl.  884.  p.  396. 
Sumner   v.    Waugh,    56    111.    531,    539, 

p.    315,   338. 
Sun     Printinj,'     and     Pub.      Ass'n     v. 

Moore,    183    U.    S.    642,   22    Sup.    Ct. 

240.   p.   220. 
Sunday    Lake    Min.    Co.    v.    Wakefield, 

72  Wis.  204,  39  X.  W.   13(i,  p.  225. 
Sunset  Telephone  &  T.  Co.,  v.  City  of 

Eureka,    122    Fed.    961,   p.    80. 
Supreme    Tent    Knijjlits    of    Maccabees 

V.  Stensland.  206  111.   124,  68  N.  E. 

1098,  99  Am.  St.  Rep.  137,  p.  398. 
Svanburg    v.    Fosseen,    75    Minn.    350, 

74   Am.   St.   Rep.   490,   78   N.   W.   4, 

43   L.   R.   A.   427,  p.   903. 
Swaine  v.  Great  X.  R'y  Co.,  4  De  Gex, 

J.   &   S.   211,    1    Ames  Eq.   Jur.    569. 

1   Scott   743,   p.   830. 
Swaine    v.    Ferine,    5    Johns.    Ch.    482, 

490,  9  Am.  Dec.  318,  p.  865. 
Swa island   v.    Dearsley,   29    Beav.   430, 

1   Ames   Eq.  Jur.   376,   p.   432. 
Swan  V.   Chorpenning,  20  Cal.   182,  p. 

492. 
Swartz's   Ex'rs   v.    Leist,    13    Ohio    St. 

419,  p.   705. 
Swasey  v.  Emerson,  168  Ma.ss.  118,  46 

X.   E.  426.  60  Am.  St.  Rep.   368,  p. 

350. 
Sweeney  v.  Williams,  36  X.  J.  Eq.  .627, 

1  Scott  141,  p.  66,  131,  132. 
Sweet    V.    Henry.    175    X.    Y.    268,    67 

X.  E.  574,  p.  281. 
Sweetapple    v.    Bindon,    2    Vern.    536, 

Ames    Trusts,    379.    p.    552,    682. 
Swinburne    v.     Swinburne.    28    X.    Y. 

568.    p.    601. 
Sykes   v.    Beadon.    L.    R.    11    Ch.    Div, 

170.    183,    193,    196,    197,   p.   500. 
Symes    v.    Hughes,    L.    R.    9    Eq.    475, 

479,  p.  549. 


Tabor   v.    Brooks,    L.    R.    10    Ch.    Div. 

273,  p.   608. 
Taflr  Val.   R'y  v.   Xixon,   1   H.   L.  Cas. 

109,    110,    1    Ames   Eq.    Jur.    454,   3 

Keener  888,  p.  918. 


Tailby    v.    Official    Receiver.    13    App. 

Cas.     (H.    L.)     ,523,    Kirch.    100,    p. 

770,  771. 
Talbot   V.    Shrewsbuiy,   Free.    Ch.   394, 

p.    241. 
Talmage  v.   Fell,  9   Faige,  410,  p.   78. 
Taniplin  v.  James,  L.  R.   15   Ch.  Div. 

215,  1  Ames  Eq.  Jur.  388,  2  Keener 

979,   2    Scott   277,   p.   432. 
Tapia    v.    Demartini,    77    Cal.    383,    19 

Fac.    641,    11    Am.    St.   Rep.   288,   p. 

567. 
Tarbell  v.  Durant,  61  Vt.  516,   17  Atl. 

44,  p.  728. 
Tarver    v.    Torrance,    81    Ga.    261,    12 

Am.    St.   Rep.   311,   6   S.   E.    177,   p. 

610. 
Tate  v.   Pensacola,   Gulf  L.   &   D.   Co., 

37   Fla.  439.  20  South.  542,  53  Am. 

St.  Rep.  251,  p.  375. 
Tate    V.    Williamson,    L.    R.    2    Ch.    55, 

60,  61,  1  Eq.  528,  .536,  H.  &  B.  337, 

Shep.     193.    p.    465,    467,    485,    513, 

514,    520,    523. 
Tayloe   v.   Merchants'   etc.   Ins.   Co..   9 

How.  390,  13  L.  ed.  187.  1  Ames  Eq. 

Jur.  59,  2  Scott  31,  2  Keener  53,  p. 

884. 
Taylor  v.  Ashton,  11  Mees.  &  W.  401, 

p.  451. 
Taylor  v.   Bro\\Ti,   112   Ga.   758,   38   S. 

E.    66,   p.    564. 
Taylor  v.   Carroll,   89  Md.   32,  42  Atl. 

920,   44  L.   R.   A.   479,   p.   285. 
Taylor  v.  Great  Indian  R'y,  4  De  Gex 

&   J.   559,   574,   p.   477. 
Taylor  v.  Joues.  2  Atk.  600,  p.  528. 
Taylor    v.    Kelly,    3    Jones    Eq.    240,    1 

Ames  Eq.  Jur.  215,  p.   162. 
Taylor  v.  Lanier.  3  :\Iurph.   98.  9  Am. 

Dec.  599.  p.  250. 
Taylor  v.   London   and   Coimty   Bank- 
ing Co.,   [19011   2  Ch.  231,  254,  259, 

260ff,    p.    350,    372,    373. 
Taylor  v.  Longworth,  14  Fet.  172,  174, 

10    L.    ed.    405.    p.    899. 
Taylor  v.   Louisville   &   X.   R.   Co.,   88 

Fed.    350,    359,    60    U.    S.    App.    185, 

31   C.  C.  A.  537,  p.  119. 
Taylor  v.   Sleads,   4   De   Gex,   J.   A   S. 

597,   604-607,   p..  636,  640. 
Taylor  v.  Russell,    [1891]    1   Ch.   9,  p. 

347. 


TABLE   OF    CASES   CITED. 


999 


Taylor  v.  Stearns,   18  Gratt.  244,  278, 

p.    557. 
Taylor   v.    Stibbert,    2    Ves.    437,    440, 

2  Keener  450,  p.  274,  276,  281. 
Taylor    v.    Times    Newspaper    Co.,    83 

Minn.    523,    85    Am.    St.    Rep.    473, 

86  N.  W.  760,  p.  220. 
Tazewell   v.   Smith's   Adm'rs,    1    Rand. 

313,  320,   10   Am.   Dec.   533,   p.   167, 

679. 
Teasdale  v.  Teasdale,  Sel.  Cas.  Ch.  59, 

1  Scott  558,  p.   376. 

Teft  V.  Stewart,  31  Mich,  367,  H.  &  B. 

271,  p.  474. 
Telegraph  Co.  v.  Davenport,  97   U.   S. 

369,  p.  907. 
Ten   Eyck   v.   Manning,   52    N.   J.   Eq. 

47,   27    Atl.    900,    2    Keener   849,    p. 

897. 
Ten   Eyck   v.   Witbeck,   135   N.   Y.   40, 

31   N.  E.  994,  31  Am.  St.  Rep.  809, 

p.  359. 
Tennant   v.    Stoney,    1    Rich.    Eq.    222, 

44   Am.   Dec.   213,   p.    639. 
Tennessee     Mfg.     Co.     v.    James,     91 

Tenn.    (7  Pickle)    154,  18  S.  VV.  262, 

30   Am.   St.   Rep.   865,    15   L.   R.   A. 

211,    p.    226. 
Tesson  v.  Atlantic  Ins.  Co.,  40  Mo.  33, 

36,  93  Am.  Dec.  293,  p.  434. 
Texas  &   P.   R'y   Co.   v.   Marshall,    136 

U.  S.  393,  407,   10  Sup.  Ct.  846,  34 

L.  ed.  385,  p.  887,  888. 
Texas  Trunk  R.  Co.  v.  Lewis,  81  Tex. 

1,   26   Am.    St.    Rep.    776,    16    S.    W. 

647,    p.    809. 
Thackrah   v.    Haas,    119   U.    S.   501,    7 

Sup.  Ct.  311,  2  Scott  746,  3  Keener 

697,  p.  471,  474,  508. 
Thayer  v.   Daniels,    113   Mass.    129,   p. 

325. 
Third  Ave.  R.  R.  Co.  v.  Mayor  etc.  of 

New  York,  54  N.  Y.   159,   162.   163, 

2  Ames    Eq.    .Tur.     102,     1     Keener 
167,  p.   109,  823. 

Third     Nat.     Bank    v.    Atlantic    City, 

126   Fed.   413,   p.   325. 
Third  Nat.   Bank  v.   Lumber  Co..    132 

Mass.   410,   2   Ames   Eq.   Jur.   27,    1 

Keener  257,  p.   797. 
Thomas    v.    Beals,    154    Mass.    51,    27 

N.   E.    1004,   3    Keener   707,   p.    470. 

471. 


Thomas  v.  Burnett,  128  111.  37,  21   N. 

E.  352,  4  L.  R.  A.  222,  H.  &  B.  90, 

p.    278. 
Thomas  v.   Cincinnati   etc.   R.   Co.,   62 

Fed.   803,  p.   809. 
Thomas  v.   Evans,   105   N.   Y.   614,   12 

N.  E.  571,  59  Am.  Rep.  519,  p.  743. 
Thomas  v.   Howell,   L.   R.    18   Eq.    198, 

34  Ch.  D.  166,  1  Ames  Eq.  Jur.  196, 

p.    164. 
Thomas    v.    Lennon,    14    Fed.    849,    p. 

839. 
Thomas    v.    Oakley,     18    Ves.    184,    I 

Scott    685,    1    Ames   Eq.    Jur.   491,    1 

Keener   551,   p.    842. 
Thomas   v.    \Miitney,    186   111.   225,   57 

N.  E.  808,  p.  513. 
Thomas's   Adm'r  v.   Lewis,    89   Va.    1, 

15  S.  E.  389,  37  Am.   St.  Rep.  848, 

18  L.  R.  A.  170.  p.  666,  668. 
Thompson   v.   Betts,   74   Conn.   576,   51 

Atl.    564,   92    Am.    St.    Rep.    235,    p. 

245. 
Thompson  v.   Central   Ohio  R.   R.   Co., 

6  Wall.    134,   18   L.   ed.   765,  p.    139. 
Thompson   v.   Cochran,    7    Humph.    72, 

46   Am.   Dec.   68,  p.   865. 
Thompson  v.  Etowah  Iron  Co.,  91   Ga. 

538,  17  S.  E.  663,  p.  877. 
Thompson   v.    Gould,    20    Pick.    134,    1 

Ames   Eq.   Jur.   234,   2   Keener   406, 

p.  163. 
Thompson    v.    Heflferman,    4    Dm.     & 

War.  285,  p.  667. 
Thompson  v.   Hudson,   L.   R.   4   H.   L. 

1,  15,  p.  216,  218. 
Thompson   v.    Scott,   4   Dill.   508,   Fed. 

Cas.  No.  13,975,  p.  809. 
Thompson   v.   Thompson,    1    Jones    (N. 

C.)    430,    1    Ames    Eq.    Jur.    201,    p. 

162,   595. 
Thompson    v.    Winter,    42    Minn.    121, 

43  N.  W.  796,  6  L.  R.  A.  236,  H.  & 

B.  654,  2  Keener  1044^  p.  895. 
Thomdike   v.    Hunt,    3    De   G*x    &    J. 

563,  570,  571,  p.  196.  311,  373. 
Thorne  v.  Deas,  4  Johns.  84,  p.  606. 
Thornton   v.   Hawley,    10   Ves.    129.   p. 

680. 
Thornton,  Town   of,  v.   Oilman,  67   N. 

H.    392,    39    Atl.    900,    p.    521. 


1000 


TABLE    OF    CASKS    CITED. 


Thorpe  v.   Bnimfitt,  L.  R.   8  Ch.   650, 

1     Ames    Eq.     Jiir.     547,     1     Keener 

734,   p.    834. 
ThreadgiU  V.  Bickerstaflf,  87  Tex.  520, 

24   S.   W.   757,  p.   364. 
Thum  Co.  V.  Tloczynski,  114  Mch.  149. 

68  Am.  St.  Rep.  469,  72  N.  W.   140, 

38   L.    R.   A.   200,   H.   &   B.   755,   p. 

817. 
Thynn  v.   ThjTin,    1   Vern.   286,  296,   1 

Scott   457,   p.   603. 
Tibbetts    v.    Gate,    66    N.    H.    550,    22 

All.    559,    p.    223. 
Tibbits  V.  Tibbits,  19  Ves.  656,  663,  p. 

238. 
Tidd    V.    Lister,    5    Madd.    429,    Ames 

Trusts   465,   p.    553. 
Tierney  v.  Wood.   19  Beav.   330.  Ames 

Trusts  182,  p.  562,  566. 
Tifft   V.   Porter.    8    N.    Y.    fjlC,    p.    657. 

660. 
Tilley  v.  Thomas,  L.  R.  3  Ch.  61,  67, 

69,    72,     1     Ameo    Eq.    Jur.    336.    2 

Scott    345.     2     Keener     1091,     Shep. 

254,   p.   899. 
Tillinghast  v.   Champlin,   4   R.   I.    173, 

204.   215,   67    Am.    Dec.    510,   p.   265. 
Tillman   v.    Thomas,    87    Ala.    321,    13 

Am.    St.   Rep.    42,   6   South.    151,   p. 

269. 
Tilton    V.    Davidson,    98    Me.    55,    56 

Atl.    215,   p.    550. 
Tinsley  v.  Rice,  105  Ga.  285,  31  S.  E. 

174,  p.  285. 
Tipping   V.    Clarke,   2   Hare,   383,   389, 

p.   82. 
Title    Guarantee    Co.    v.    Wrenn,     35 

Oreg.    62,   56   Pac.   271,   76   Am.    St. 

Rep.  454,  p.   382. 
Titsworth  v.  Stout.  49  111.  78,  95  Am. 

Dec.  577,  p.  383,  384. 
Titus  V.  Rochester  G.  Ins.  Co.,  97  Ky. 

567,  31  S.  W.   127,  53  Am.  St.  Rep. 

427,  H.  &  B.  213,  p.  421,  425. 
Titus's   Adm'r  v.  Titus,  26   N.   J.  Eq. 

Ill,  p.  663. 
Tobey    v.    Moore.     130    Mass.    448,    2 

Keener  516,  p.  776. 
Tobias  v.  Ketchum,  32  N.  Y.  319,  326, 

327-331,   H.    &    B.    374,   p.   235,   .568. 

569. 
Tolbert  v.  Horton,  31  Minn.  518,  18  N. 

W.    647,    p.    367. 


Toller  V.  Carteret,  2  Vera.  494,  1 
Ames  Eq.  Jur.  22,  1  Scott  235,  p. 
208. 

Toilet  V.  Toilet,  2  P.  Wms.  489,  1 
Lead.    Cas.    Eq.,    4th   Am.    ed.,    365, 

2  Ames   Eq.   Jur.   305,   1    Scott  420, 
p.   253,  410,   411. 

Tompkins    v.    Craig,    93    Fed.    885,    2 

Ames'  Cas.  Eq.  Jur.  87,  p.  122. 
Tompkins    v.    Halleck,    133    Mass.    32, 

43  Am.  Rep.  480,  Lewis  69,  p.  839. 
Tompkins   v.   Hollister,   00   Midi.   <a''". 

27   N.   W.   651,  p.   513. 
Toney    v.    Spragins,    80    Ala.    541,    p. 

233. 
Toole    V.    Toole,    107    Ga.    472,   S3    S. 

E.  686,  p.  359. 
Torrance  v.   Bolton,  L.   R.   S   ^.i.    118, 

14    Eq.    124,   p.    448. 
Torrance  v.  Bolton,  L.  R.   14  Eq.   124, 

p.   448. 
Torrence   v.   Davidson,   92   N.   C.    437, 

53   Am.   Rep.   419,  p.   610. 
Toupin  V.  Peabody,  162  Mass.  473,  39 

N.   E.   280,   p.   300. 
Tourville    v.    Naish,    3    P.    Wms.    306, 

307,  316,  p.  362. 
Towle   V.    Leavitt,    23    N.    H.    360,    55 

Am.   Dec.    195,   p.   493. 
Towner    v.    INlcClelland,    110    111.    542, 

p.    350. 
Townley    v.    Bedwell.    14    Ves.    591.    2 

Scott  400,  2  Keener  321,  p.  680,  681. 
Town     of     Bristol     v.     Bristol     &     W. 

W^aterworks,    19   R.   I.   413,   34   Atl. 

359,   32  L.   R.   A.   740,  p.   886. 
Towai  of  Essex  v.  Day,  52   Conn.   483, 

3  keener    303,    p.    438. 

Town   of   Venice   v.    Woodruff,    62    N. 

Y.    462,   20   Am.   Rep.    495,   2   Ames 

Eq.    Jur.    133,    H.    &.    B.    794,    Shep. 

244,    p.    860. 
Townsend   V.    Champemqwne.    9    Price 

130,  2  Scott  410,  2  Keener  335. 
Tracy  v.  Colby,  55  Cal.  67,  p.  515. 
Tracy  v.  Talmage,   14  N.  Y.   162.   107, 

210.   67   Am.   Dec.    132,  p.   502,   503. 
Traill   v.    Baring,   4   De   Gex,   J.    &   S. 

318,  326,  328,  329,  330,  p.  447,  452, 

454. 
Treadwell  V.  Torbert,  119  Ala.  279,  24 

South.   54,  72  Am.  St.  Rep.   918,  p. 

500. 


TABLE   OF    CASES    CITED. 


1001 


Trenton   v.   Pothen,   46   Minn.    2i)8,   24 

Am.  St.  Rep.  22,'),  49  N.  W.    129,  p. 

304. 
Tribette   v.    Illinois    Cent.    R.    Co.,    70 

Miss.    182,    12    South.   32,    19   L.    R. 

A.    t560,    35    Am.    St.    Rep.    642,    1 

Keener   Cas.    Eq.   Jur.    148,    2    Ames 

Ciis.   Eq.   Jur.   74,   Shep.  36,  p.    121. 
Tribou  v.  Tribou,  96  Me.  305,  52  Atl. 

795.  p.  504. 
Trice    v.    Comstock,    115    Fed.    765,    p. 

185. 
Trice   v.    Comstoek,    121    Fed.    620,    57 

C.    C.    A.    646,    61    L.    R.    A.    176,    p. 

362.  518,  600. 
Trimm    v.    ilarsh,    54    N.    Y.    599,    13 

Am.    Rep.    623,    Kirch.    299,    p.    693. 
Troe   V.    Larsen,    84    Iowa    649,   51    N. 

W.    179,    35    Am.    St.    Rep.    336,    p. 

833. 
Trower    v.    Xewcome,    3    Mer.    704,    1 

Ames   Eq.   Jur.   352,  2   Scott   238,   2 

Keener  882,  p.  456,  457. 
Trull    V.    Eastman,    3    Met.    121,    123, 

37  Am.  Dec.   126,  p.  512. 
Trull  V.   Skinner,   17  Pick.  213,  Kirch. 

445,    p.    698. 
Trustees      of      Columbia      College      v. 

Thacher,  87  X.  Y.  311,  41  Am.  Rep. 

365,  2   Keener   1038,  p.   777. 
Tryon  V.  Munson,   77   Pa.   St.   250,   p. 

692. 
Tucker   v.    Howard,    128   Mass.    361,    1 

Keener    854,    1    Ames    Eq.    Jur.    548, 

p.    834. 
Tulk  V.  Moxhay,  11  Beav.  571,  2  Pliill. 

Ch.  774,  777,   1   Ames  Eq.  Jur.   147, 

2   Scott   486,   2   Keener   545,   p.   319, 

774. 
Tullett    V.    Armstrong,   4   Mylne   &    C. 

377.    392.     1     Beav.     1,    21,    22,    p. 

643,   644. 
Turman   v.    Beli,   54    Ark.    273,    15    S. 

W.    886.    26    Am.    St.    Rep.    35,    p. 

277. 
Turnbull  v.  Crick,  63  Minn.  91,  65  N. 

\Y.   135,  p.  75. 
Turner  v.  City  of  [Mobile,  135  Ala.  73, 

33    South.    133,    140,    141,    142,    143. 

p.   105. 
Turner  v.   Flenniken,   164   Pa.   St.  469. 

30   Atl.   486,   44   Am.   St.   Rep.   624, 

p.    730. 


Turner  v.   Green,    [1895]    2   Ch.   205,    1 

Ames   Eq.   .Jur.   364,   p.   468. 
Turner    v.    Houpt,    53    N.    J.    Eq.     (8 

Dick.)    526,  33  Atl.  28,  42,  3  Keener 

646,    p.   283,   286,   460. 
Turner    v.    Mirfield,    34    Beav.    390,    1 

Ames   Eq.    Jur.   558,   p.    831. 
Turner  v.  Morgan,  8  Ves.   143,  p.  869. 
Turner  v.   Wright,  2  De  Gex,  F,  &  J. 

234,    243,    1    Ames    Eq.    Jur.    476,    1 

Keener    441,    p.    828,    829. 
Turquand    v.    ]\larshall,    L.    R.    4    Ch. 

376,   385,   p.   626. 
Turquand  v.  INlarshall,  L.  R.  6  Eq.  112. 

p.    620. 
Twining     v.    ISIorrice.     2    Brown     Ch. 

326,    1    Ames   Eq.    Jur.    416,    p.    430, 

894. 
Twombly    v.    Cassidy,    82    N.    Y.    155, 

p.    717. 
Tyler,  In  re,  149  U.  S.  164,  13  Sup.  Ct. 

785,   13   L.  ed.   689,  p.  809. 
Tyron   v.   Mimson,   77   Pa.   St.   250.   p. 

692. 
Tyrwhitt    v.    Tyrwhitt,    32    Beav.    244, 

p.    382. 


U. 


Uhlman  v.  New  York  Life  Ins.  Co., 
109  X.  Y.  121.  433,  4  Am.  St.  Rep. 
482,    17    X'.   E.    36.^,   p.    918. 

Ungley  v.  Ungley,  L.  11.  5  Ch.  D.  887, 

1  Ames  Eq.   Jur.   281,  2   Scott   193, 

2  Keener  661,  p.  904. 

Union  Banl:  v.  Bell,  14  Ohio  St.  200, 
p.    179. 

Union  Bank  of  Tjondon  v.  Kent,  39 
Ch.   Div.  238,  p.   326. 

Union  Cent.  Life  Ins.  Co.  v.  Philli])s, 
102  7ed.  19,  41  C.  C.  A.  263,  p. 
100. 

I'nion  Zlutual  Life  Ins.  Co.  v.  Han- 
ford,  143  U.  G.  187,  12  Sup.  Ct. 
437,  36  L.  ed.    118,   p.   712. 

Union  Pacific  R.  Co.  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  163  U.  S.  564,  16 
Sup.  Ct.  1173,  41  L.  ed.  265,  affirm- 
ing 51  Fed.  .309,  2  C.  C.  A.  174,  10 
U.    S.    App.    98,    p.    44.    890. 

Union  Pacific  R.  R.  Co.  v.  McAlpine, 
129  U.  S.  305,  314.  9  Sup.  Ct.  Rep. 
280,   32    L.    ed.    673,    p.    597. 


1002 


TABLE   OF    CASES    CITED. 


T  nion  Pac.  R'y  v.  McAlpine,  129  U.  S. 

309,    314,    9    Sup.    Ct.    286,    p.    319. 
Fnion    Trust    Co.    v.    Illinois    Midland 

R'y  Co.,   117   U.   S.   434,   6   Sup.   Ct. 

809,   29  L.   ed.   963,   p.   810. 
Inion   Trust   Co.   v.    Olmsted,    102   N. 

V.    729,    7    N.    E.    822,    1    Ames   Eq. 

•fur.   23,  p.   208. 
I'nited  States  v.  California  &  O.  Land 

Co..  49  Fed.  496,  503,  .504,  .505,  506, 

7   U.   S.   App.   128,    1    C.   C.   A.   330, 

affirmed,    148    U.    S.    31,   46,   47,    13 

Sup.    Ct.   458,   p.    359,   364. 
t'nited  States  v.  Detroit  Timber  &  L. 

Co.,    (C.   C.   A.)    131    Fed.   668,   678, 

p.     356,    371. 
United   States   v.    Howland,   4    Wheat. 

108   115.  4  L.   ed.   526,  p.    140. 
I'nited    States    v.    Kane,    23    Fed.    748, 

Lewis   212,   p.   846. 
United    States    v.    Parkhurst    etc.    Co., 

176   U.   S.   317,  20  Sup.   Ct.  423,   44 

L.    ed.    485,   p.    851. 
United   States   v.   vSaline   Bank,    1    Pet. 

100,    104,   p.   80. 
United  States  v.  Throckmorton,  98  U. 

S.    61,   25   L.   ed.   93,   p.   854. 
United   States   v.    Union   Pac.    R.    Co., 

160    U.    S.    1,    16    Sup.    Ct.    190,    p. 

100. 
United  States  v.  Wagner,  L.  R.  2  Ch. 

582,  L.  R.   3  Eq.   724,  p.   79. 
U.    S.   Ins.   Co.   V.   Shriver,   3   Md.   Ch. 

.381,    385,    p.    292. 
Unity   Bank,    Ex   parte,    3    De   Gex    & 

J.  63,  p.  505. 
University  of  Penn.  Appeal,  97  Pa.  St. 

187,  p.   663,   664. 
Unruh  v.  Lukens,   166  Pa.  St.  324,  31 

Atl.  110,  p.  522. 
Updike  V.  Adams,  24  R.  I.  220,  96  Am. 

St.  Rep.  711,  52  Atl.  991,  p.  869. 
Upton  V.    Betts,   59   Nebr.   724,   82   N. 

W.  19,  p.  377,  378. 
Upton   V.   Prince,   Cas.  t.   Talb.   71,   p. 

248. 
Urann  v.  Coates,   109  Mass.  581,  H.  & 

B.    366,    p.    566. 
Ure   V.    Ure,    185    111.    216,    56    N.    E. 

1087,  p.  544. 
Usborne  v.  Usborne,  Dick.  75,  1  Keen- 
er 452,  p.  829. 


I'tley  V.   Dunkelberger,  86   Iowa,   469, 

53   N.   W.   408,   p.   340. 
Uzzell  V.  Mack,  4  Humph.  319,  40  Am, 

Dec.  648,  p. 


V. 


\'acuum    Oil    Co.    v.    Climax    Refining 

Co.,    120    Fed.   254,   p.    840. 
Vale  V.  Oppert,  L.  R.  10  Ch.  340,  342, 

p.   82. 
\'allette  v.  Tedens,  122  111.  607,  3  Am. 

St.   Rep.   502,   14   N.   E.   52,  p.   520, 

601. 
Van   V.   Barnett,   19  Ves.    102,    109,   p. 

684. 
Van  Akin  v.  Dunn,  117  Mich.  421,  75 

N.    W.    938,   p.    330. 
Van    Auken    v.    Dammeier,    27    Oreg. 

150,   40   Pac.   89,  p.    122. 
^an    Beck   v.   Milbrath,    118    Wis.    42, 

94   N.   W.   657,  p.   401. 
^'an  Buskirk  v.  Hartford  etc.  Ins.  Co., 

14  Conn.  141,  144,  36  Am.  Dec.  473, 

p.   325. 
Van   ('U)ostere  v.   Logan,   149  111.   588, 

36  X.  E.  946,  p.  320. 
Vanderbilt  v.  Little,  43  X.  J.  Eq.  669, 

12   Atl.    188,  p.   810. 
\'andergueht  v.   DeBlaquiere,   5  ^Mylne 

&    C.    229,    p.    648. 
Van  Dusen  v.  Bigelow,   (X.  Dak.)    100 

X.  W.  723,  p.  517. 
\nn    Dyke's   Appeal,    60    Pa.    St.    481, 

489,  490,  H.  &.  B.   136,  p.  233,  240. 
^'ane   v.    Lord   Barnard,   2   Vem.    738, 

Pree.    Ch.    454,     1    Ames    Eq.    Jur. 

470,    1    Keener   455,   p.    828. 
Vane    v.    Vane,    L.    R.    8    Ch.    383,    p. 

472,  476. 
Van    Houten    v.    Post,    33    X,    .J.    Eq. 

344,  p.  246,  247. 
Van  Xorden  v.  Morton,  99  U.   S.  378, 

380,  25  L.  ed.  455,  p.   141. 
Van  Riper  v.  Van  Riper,  2  X.  J.  Eq. 

1,  p.  242. 
Van  SteenA\7'ck  v.  Washburn,  59  Wis. 

483,  .501,  48  Am.  Rep.  532,  17  X.  W. 

289,    p.    237, 
^  an  Vronker  v.  Eastman,  7  Met.  157, 

Kirch.  561.  p.  719. 
V^an  Wyck  v.  Seward,  6  Paige,  62,  18 

Wend.    375,   p.    530. 


TABLE    OF    CASKS    CITED. 


1003 


Vann  v.  Hargett,  22  N.  C.    (2  Dev.  & 

B.  Eq.)   31,  32  Am.  Dec.  689  [1838], 

p.  119. 
Vann    v.    Marb\ir\',    100    Ala.    438,    14 

South.  273,  46  Am.   St.  Rep.  70,  23 

L.  R.  A.  325,  p.  350. 
Vardon's   Trust,    In   re,   L.   R.    31    Ch. 

Div.  275,  Shep.   135,  p.'  237. 
Vasser  v.  Henderson,  40  Miss.  519,  90 

Am.   Dec.   351,   p.    910. 
\'aughn   V.    Schmalsde,    10   Mont.    186, 

25    Pac.    102.    10    L.    R.    A.    411,    p. 

342. 
Vegalahn    v.    Guntner,    167    Mass.    92, 

57  Am.  St.  Rep.  443,  44  N,  E.  1077. 

35   L.   R.   A.    722,   H.    &   B.    773.    p. 

826,    846. 
Vercruysse  v.  Williams,   112  Fed.  206, 

50    C.    C.    A.    486,    p.    295. 
^'eret  v.   Duprez,  L.   R.   6   Eq.   329,   p. 

803. 
\  ernon  v.  Stephens.  2   P.   Wms.   66.   1 

Ames  Eq.   Jur.   338,   p.   899. 
Vernon  v.  Vernon,  53  N.  Y.  351,  359, 

362,   p.   236. 
Verplank    v.    Mercantile    Ins.    Co..    2 

Paige,    438,    p.    808. 
Very  v.  Russell,  65  N.  H.  646,  23  Atl. 

522,   p.    515. 
Vick    V.    Beverly,     112    Ala.    458,    21 

South.  325,  p.   101. 
Vickers,  In  re,  L.  R.  37  Ch.  Div.  525, 

p.   248. 
Vickers  v.  Vickers,  L.  R.  4  Eq.  529.  2 

Keener   132,  p.   886. 
A'idal   V.   Girard's   Ex'rs,   2   How.    127. 

11    L.   ed.  205,   p.   575.   583. 
Villa   V.   Rodriguez,    12   Wall.   323,   20 

L.    ed.   406,   Kirch.    453,   p.    698. 
Viscount  Clermont  v.  Tasburgh,   1  Ja- 
cob &  W.  112,  119.  1  Ames  Eq.  Jur. 

358.   2   Keener   883,   2   Scott   241,   p. 

463. 
Vreeland    v.    Vreeland,    49    N.    J.    Eq. 

.322,  24  Atl.  551.  p.  868. 
Vreeland    v.    Vreeland.    53    N.    J.    Eq. 

387,  32  Atl.  3,  p.  »03. 
Vyse  V.  Foster.  L.  R.  8  Ch.  309.  p.  608. 


W. 


W 


V.    B- 


32    Bear.    574,    p. 


501. 


Wadd  V.  Hazleton,   137   X.   Y.  215.  33 

Am.     St.    Rep.    707,    21     L.    R.    A. 

693,  33  N.  E.   143,  p.  562. 
Wadsworth,  Re,  2  Barb.  Ch.  381,  Ames 

Trusts  511,  p.  549. 
Wagar    v.     Stone,    36    Mich.    364,    p. 

805. 
Wagoner's  Estate,   174  Pa.  St.  558,  52 

Am.   St.   Rep.  828,  32  L.  R.  A.   706, 

34  Atl.   114,  p.  558. 
Wahn  V.  Fall,  55  Nebr.  547,  76  N.  W. 

13,   70   Am.   St.   Rep.   397,  p.   342. 
Wainford  v.   Heyl,  L.   R.   20   Eq.   321, 

324,  p.  619. 
Wainscott  v.  Occidental  etc.  Ass'n,  98 

Cal.  253,  33  Pac.  88,  3  Keener  683, 

2   Scott   729,   p.   462. 
Waite  V.  O'Neil,  72  Fed.  348,  76   Fed. 

408,   22   C.   C.   A.  248,   34   L.   R.   A. 

550,  p.    100. 
Wake  V.  Conyers.  1  Eden,  331,  2  Lead. 

Cas.   Eq.,   4th   Am.    ed.,   850-864,   p. 

866. 
Wakeham    v.    Barker,    82    Cal.    46,    22 

Pac.    1131,    1   Ames   Eq.   Jur.   87,   p. 

886. 
Wakeman  v.   Dalley,   51   N.   Y.   27.    10 

Am.  Rep.  551,  p.  446.  450,  453. 
Wakeman  v.   Dodd,  27   X.  J.  Eq.   564. 

p.   523. 
Walden  v.  Skinner,  101  U.  S.  577,  H.  & 

B.   238,  p.   430. 
Waldman    v.    North    British    etc.    Ins. 

Co.,   91    Ala.    170,   8   South.   666,   24 

Am.   St.   Rep.   883.   p.   303. 
Waldron  v.  Letson,   15  X.  J.   Eq.   126. 

2   Ames  Eq.   Jur.   223,   p.   859. 
Wales   V.   Sammis,    120   Iowa,   293,   94 

N.    W.    840,   p.    341. 
Walker,  Ex  parte.  25  Ala.  81,  p.  805. 
Walker  v.   Armstrong,  2   Kan.   198.  p. 

841. 
Walker  v.  Buffandeau,  63  Cal.  312.  p 

340. 
Walker   v.    Emerson,    89    Cal.    456,    26 

Pac.  968,  I  Keener  644,  p.  843. 
Walker  v.  Wheeler,  2  Conn.  229.  299. 

p.  214. 
Walker   v.    Whiting,   23    Pick.   313,   p. 

570. 
Wall   V.   Stubbs,   1   Madd.   80,   1   Ames 

Eq.    Jur.    362,   2   Scott   239,   p.    454, 

456. 


1004 


TABLE    OF    CASES    CITED. 


Wallace   v.   Campbell,    54    Tex.    87,    p. 

344. 
Wallace    V.     Pierce-Wallace-Pub.    Co., 

101   Iowa,  313,  (J3  Am.  St.  Rep.  389, 

70  N.   VV.  210,  38   L.   R.  A.   122,   p. 

806. 
Waller      v.      Armistead's      Adm'rs,     2 

Leigh,   11,  21  Am.  Dec.  594,  p.  521. 
Wallis    V.    Smith,    L.    R.    21    Ch.    Div. 

243,   Shep.    141,   p.   221. 
Wallis  Iron  Works  v.  Monmouth  Park 

Ass'n,  55  N.  J.   L.   132,   39  Am.   St. 

Rep.   620,  20   Atl.    140,   19   L.   R.   A. 

450,   p.   219. 
Wallwyn    v.    Lee,    9    Ves.    24,    33,    p. 

355,  370. 
Walsh    V.    Curtis,    73    Minn.    254,    76 

N.  W.  52,  p.  218. 
Walters    v.     Washington    Ins.    Co.,     1 

Iowa,    404,    63    Am.    Dec.    451,    p. 

323. 
Walton  V.  Hargroves,  42  Miss.   18,  97 

Am.   Dec.   429,   433,   p.   749. 
Walton   V.   Walton,   7   Johns.   Ch.   258, 

11    Am.    Dec.    456,    p.    658. 
Wampler   v.   Wampier,   30   Gratt.   454, 

3   Keener   480,   p.   473,  474. 
\\  anzer    v.    Cary,    76    N.    Y.    526,    p. 

350. 
Ward  V.  Conn.  Pipe  Mfg.  Co.,  71  Conn. 

345,   71    Am.   St.   Rep.   207,   41    Atl. 

1057,    42    L.    R.    A.    706,    p.    811. 
Ward  V.  Hudson  River  Bldg.  Co.,   125 

N.  Y.  230,  26  X.  E.  256,  p.  219. 
Ward    V.    Turner,    2    Ves.    Sr.    431,    1 

Lead.    Cas.    Eq.    1205,    p.    668. 
Wiinl  V.   \^■ard,  59  Conn.  188,  22  Atl. 

149,    p.    592. 
Ward  V.  Ward,  L.  R.  14  Ch.  Div.  506, 

p.   647. 
Ward    V.    Ward,    40    W.    Va.    611,    52 

Am.    St.    Rep.    911,    21    N.    E.    746, 

29  L.  R.  A.  449,  p.  869. 
Ware  v.  Lord  Egniont,  4  De  Gex,  M. 

&  G.  460,  473,  474,  p.  269. 
W'arford    v.    Hankins.     150    Ind.    489, 

50   N.  E.   468,   p.   717.   751. 
Warmstroy    v.    Lady    Tanfield.    1    Ch. 

Rep.    16,   29,   2    Lead.    Cas.    Eq.,   4th 

Am.   ed.,    1530,    1    Scott   74,   p.    759. 

769. 


Warner   v.    Bates.    98    Mass.    274,    277; 

H.   &    B.   377,   p.   571. 
Warner    v.    Conant,    24    Vt.    351,    58 

Am.  Dec.   178,  p.  855. 
Warner  v.    Jacob,    L.   R.   20   Ch.    Div. 

220,  p.  821. 
Warnock   v.    Harlow,   96   Cal.   298,   31 

Pac.    166,   168,  31   Am.  St.  Rep.  209, 

p.    372. 
Warren   v.   Union   Bank   of   Rochester, 

157    N.    Y.    259,    68    Am.    St.    Rep. 

777,    51    N.    E.    1036,    43    L.    R.    A. 

256.   p.   854. 
Warren    v.    Warren,    148    111.    61,    22 

L.    R.    A.    393,    36    N.    E.    611,    p. 

236. 
Warren    v.    Westbrook    Mfg.    Co.,    88 

Me.    58.    51    Am.    St.    Rep.    372.    33 

Atl.  665.  35  L.  R.  A.  388.  p.  868. 
Warren  v.   Wilder,   114  N.  Y.  215,  21 

N.   E.   159.  p.   363. 
Warren  County  v.  Marcy,  97  U.  S.  96. 

1  Scott  529,  p.  284,  287. 

Warren  Mills  v.  N.  0.  Seed  Co..  65 
Miss.  391,  7  Am.  St.  Rep.  671,  4 
South.  298,  p.  844. 

Washburn  v.  Burnham,  63  X.  Y.   132, 

2  Ames   Eq.   Jur.    150,   p.   876. 
Washington    Coimty   v.    W^illiams,    HI 

Fed.    801,   815,   49   C.    C.   A.    621,    p. 

124. 
Waterman    v.    Alden,    144    111.    90.    32 

X.    E.    972,    H.    &    B.    549.    p.    609. 

612. 
Waterman  V.  McKenzie,  138  U.  S.  252, 

34   L.   ed.   923,    11    Sup.   Ct.    334,   p. 

734. 
Watson   v.    Hunter,   5   Johns.   Cli.    169, 

9    Am.    Dec.    295,    1    Scott    642.    p. 

829. 
Watson  v.  Jones,   13  Wall.   679,  20  L. 

ed.    666,   p.   821. 
Watson  v.  Sutherland,  5  Wall.  74.  78, 

18  L.  ed.  580.  1  Ames  Eq.  Jur.  531, 

H.  &  B.  741,  Shep.  22,  1   Scott   134, 

p.    144,    814,    8.56. 
Watson    V.    W'ells,    5    Conn.    468.    p. 

303. 
Watson    V.    W'ilson,    2    Dana,    406.    26 

Am.  Dec.  459,  p.  285. 
^Vatt.s.  v.   Ball,   1   P.   Wms.    108,   Ame.s 

Trusts,    379,    1    Scott    292,    p.    550, 

552. 


TABLE    OF    CASES    CITED. 


1005 


VA'atts  V.  Turner,  1  R.  &  M.  G34,  Ames 

Trusts  453,   p.   610. 
Wayt   V.    Carwithen,    21    W.    Va.    510, 

1    Scott   307,    J).    740. 
Way's   Trust,    In   re,   2   De   Gex,   J.   & 

S.    365,    p.    323. 
Weakley   v.    Page,    102    Tenn.    178,    53 

S.    W.    551,    46     L.    R.    A.    552,    p. 

831. 
Weal   V.    Lower,    1    Eq.    Cas.    Abr.   266, 

p.   407. 
\Aebb.  Estate  of,  49  Cal.  541,  545,  H. 

&    B.     392,    p.    559,    562. 
Webb    V.    Hoselton,    4    Nebr.    308,    19 

Am,    Rep.    638,    p.    557. 
Webb   V.    Hughes,    L.    R.    10    Eq.    Cas. 

281,  2  Keener  1101,  p.  899. 
W^eber  v.   Rothchild,    15  Oreg.   385,    15 

Pac.    650,    3    Am.    St.    Rep.    162,    p. 

377,    378. 
Webster  v.  Cecil,  .30  Beav.  02,   1   Ames 

Eq.  Jur.  382,  2  Keener  954,  2  Scott 

279,  p.  431,   432. 
Webster  v.  Helm,  93  Tenn.  322,  24  S. 

W.    488,    p.    642. 
Wedgwood   v.    Adams,   6   Beav.    600,    1 

Ames  Eq.  Jur.  400,  p.  894. 
Weed   V.   Small,   7   Paige,   573,   p.   920. 
Weeding   v.    Weeding,    1    Johns.    &   H. 

424,  2  Keener  324,  p.  681. 
Wehrman   v.    Conklin,    155   U.    S.   314, 

15   Slip,   Ct.    129,   132,  p,    141. 
Weil  V.  Casey,  125  N.  C.  356,  34  S.  E. 

506,  74  Am.   St.  Rep.  644,  p.  345. 
Weinstein   v.    National   Bank,   69   Tex. 

38,    6    S.    W.    171,    5    Am.    St.    Rep. 

23,    p.    395,    398. 
Weinstock,  Lubin  &  Co.  v.  Marks,  109 

Cal.    529,    20    Am.    St.    Rep,    57,    42 

Pac.   142,  30  L.  R.  A.   182,  H.  &  B. 

783,  p.   840. 
Weisberger   v.    WMsner,    55   Mich.    246, 

21   N.   W.   331.  p.  276. 
Weise  v.  Grove,    (Iowa)    99  N.  W.   191, 

p.   4.54. 
Welch  V.  Smith,  65  Miss.  394,  4  South. 

340,  p.  407. 

Weld    V.    Lancaster,    56    Me,    453.    p. 
492. 

Wellborn   v.    \^■illiams,    9   Ga.   861,   52  ; 
Am.  Dec.  427,  p.  750.  I 


>A'eller    v.    Jersey    City,    H.    &    P.    SI. 

R'y   Co.,    06   N,   J.    Eq.    11,    57    All. 

730,  p.  761. 

Weller    v.     Smeaton,     1     Cox,     102,     1 

BrowTi    Ch.    573,    1    Ames    Eq.    Jur. 

554,   p.   831. 
Welles    V.    Yates,    44    N.    Y.    525,    3 

Keener    272,    H.    &    B.     790,    Shep. 

247,  p.  437. 
Wells    V.    Smith,    2    p:dw.    Ch.    78,    2 

Scott  317,  2  Keener    1082,   p.  898. 
Wells,  Fargo  &  Co.  v.  Dayton,  11  Nev. 

161,  p.  823. 
Welsh    V.    Crater,    32    X.    .1.    Eq.    177, 

3  Keener  990,  p.  681. 
Welsh  V.  Phillips,  54  Ala.  309,  25  Am. 

Rep.   679,  p.   379. 
Welty  V.  Jacobs,  171  111.  624,  49  N.  E. 

723,   40   L.  R.  A.   98,   H.   &   B.   592, 

p.  818,  819. 
West   V.    Camden,    135    U.    S.    507,    10 

Sup.  Ct.  838,  p.  494. 
^\est  V.  Jones,  1  Sim.,  N.  S.,  205,  207, 

208,    p.    376. 
West  V.   Mayor  etc.   of  New  York,    10 

Paige,  539,  1  Keener  161,  p.  109. 
Westbrook  v    Gleason.  79  X.  Y.  23,  28. 

30,  31,   36,   p.   350,   351,  360,   372. 
West      Coast    Safety     Faucet    Co.     v. 

Wulff,    133    Cal.    315,    85    Am.    St. 

Rep.    171,   65   Pac.   622,   p.    327. 
Western  v.   Mac  Dermot,   L.   R.   2   Ch. 

72,  75,  2  Scott  511.  p.  777. 
Western   El.  Co.   v    Keystone  Tel.   Co.. 

115  Fed.  809,  p.  836. 
Western   Nat.   Bank  v.   Maverick   Nat. 

Bank,  90  Ga.  339,   16  S.  E.  942,  35 

Am.  St.  Rep.  210.  p.   332,  338. 
Western    R.    R.    v.    Babcock,    6    Met. 

346,  937,  2  Keener  256,  p.  414,  432. 
Weston   V.    Stoddard.    137    N.    Y.    119, 

33   Am.   St.   Rep.   697,  33   N.   E.   62. 

20    L.    R.    A.    624,    p.    868. 
West   Publishing   Co.   v.    La^^ers'   Co- 
op. Pub.  Co.,  53  Fed.  265.  p.  838. 
Wethered  v.   Wethered,  2   Sim.    183,   p. 

487. 
Wetmore  v     Parker..  -52    X.    Y.   450.    p. 

575. 
Wetmore   v.    Porter,    92    X.    Y.    76.    77, 

Ames   Trusts   262.   p.    319,    501,   597. 
Wettlaufer  v.  Ames,   ( Mich. )   94  N.  W. 

950,   p.    380. 


1006 


TABLE   OF    CASES    CITED. 


Whalley   v.    Whalley,    1    Mer.    436,    p. 

484. 
Wheatley  v.  Strobe,  12  Cal.  92,  98,  73 

Am.    Dec.    522,    p.    764. 
Wheelock   v.   Noonan,    108   N.   Y.    179, 

2  Am.  St.  Rep.  405,   15  N.  E.  67,   1 

Ames   Eq.    Jur.    527,    1    Scott   94,    1 

Keener   194,  H.  &  B.   764,  p.  844. 
Whichcote  v    Lawrence,  3  Ves.  740,  p. 

515. 
White  V.  Damon,  7  Ves.  30,  p.  483. 
White  V.   DowTis,  40  Tex.  225,  226,  p. 

751. 
White    V.    Equitable    Nuptial    Benefit 

Union,    76    Ala.    251,    52    Am.    Rep. 

325,   p.   487. 
White  V.    Foster,   102   Mass.   375,   380, 

p.   282 
W'hite  V.  Xutt,  1  P.  Wms.  61,  1  Ames 

Eq.  Jur.  226.  2  Scott  450,  2  Keener 

404,   p.    163,   407. 
White   V.    Patterson,    139   Pa.   St.   429, 

21    Atl.    360,    p.    162. 
White  V.  Rankin,  90  Ala.  541,  8  South. 

118,    p.    327. 
White  V.   Sherman,    168    111.   589,   606, 

611,   61    Am.   St.   Rep.    132,    140,   48 

N.  E.  128,  p.  615,  618,  622. 
White  V.   Slender,  24   W.   Va.   615,  49 

Am.    Rep.    283,    p.    823. 
White  V.   Warner,  2  Mer.  459,  p.  224, 

226. 
White  V.  Williams,  8  Ves.   193,  p.  82. 
Whitechurch    v.    Hide,    2    Atk.    391,    1 

Ames  Eq.  Jur.  601,  p.  841. 
Whitehead  v.  Shattuek,  138  U.  S.  146, 

151.  11  Sup.  Ct.  276,  277,  34  L.  ed. 

873,  p.   140,   142,  875. 
White's  Trusts  In  re,  33  Ch.  Div.  449, 

p.  581. 
Whitfield  V.  Bewit,  2  P.  Wms.  240,   1 

Ames   Eq.   Jur.    460,    1    Keener   457, 

1   Scott,  674,  p.  827. 
Whitfield  V.    Fausset,    1    Ves.   Sr.   387, 

392,  1    Scott  409,  p.  409. 
Whitfield    V.    Riddle,    78    Ala.    99,    p. 

285. 
Whitinfi  V.  Adams,  66  Vt.  679,  30  Atl. 

32,  44  Am.  St.  Rep.  875.  25  L.  R.  A. 

598,  p.  718,  719. 


Whitmore  v.  Turquand,  3  De  Gex,  F. 

&  J.   107,  p.  555. 
Whitney    v.    Hay,    181    U.    S.    77,    21 

Sup.  Ct.  Rep.  537,  45  L.  ed.  758,  p. 

603. 
Whitney   v.   Union   Railway,   11   Gray, 

359,  364.  71  Am.  Dec.  715,  2  Keener 

547,  p.  775,  776,  777. 
Whitridge  v.  Parkhurst,  20  Md.  62,  72, 

p.  239. 
Whittaker    v.    Howe,    3    Beav.    383,    2 

Keener  209,  p.  817,   820,  886. 
Whittemore   v.    Farrington,    76    N.    Y. 

452,   2  Ames   Eq.   Jur.   208,   2   Scott 

600,  3   Keener  209,   p.   437. 
Whittemore    v.    Whittemore,    L.    R.    8 

Eq.   603,  p.  463. 
Whitton    V.    Russell,    1    Atk.    448,    p. 

407. 
Whitton    V.    Whitton,    38    N.    H.    127, 

135,   75  Am.   Dec.   103,  p.   868. 
Whitwood   Chemical   Co.   v.   Hardman, 

[1891]    2   Ch.   416,   1   Ames  Eq.   Jur. 

117,  2  Scott  110,  2  Keener  284,  Shep. 

290,  p.  819. 
Whitworth    v.    Gaugain,   3    Hare,    416, 

1    Phill.   Ch.   728,   Ames  Tr.   408,   p. 

317. 
Whitworth  v.  Whyddon,  2  Macn.  &  G. 

52,   55,  p.   803. 
Wickman    v,    Robinson,    14    Wis.    493, 

494.  80  Am.  Dec.  789,  1  Scott  73,  p. 

754. 
Widdicombe   v.    Childers,   84   Mo.    382, 

p.   319. 
Wiedemann  v.   Sann,    (N.  J.  Eq.),   31 

Atl.  211,  p.  805. 
Wieland  v.  Kobick,  110  HI.  16,  51  Am. 

Rep.  676,  p.  400. 
Wigg  V.  Wigg,  1  Atk.  382,  384,  p.  365. 
Wilbanks  v.   Wilbanks,   18   111.    17.   H. 

&  B.   129,  p.  240. 
Wilcocks  V.   Wilcocks,   2   Vern.   558,  2 

Lead.    Cas.    Eq.    833,    Shep.    129,    1 

Scott  324,  p.   252. 
Wilcox    V.    Allen,    36    Mich.     160.    p. 

218. 
Wilcox    V.    Howell,    44    N.    Y.    398,    p. 

399. 
Wild  V.  Wells,  1   Dick.  3,  Toth.  82,  p. 

864. 


TABLE   OF   CASES    CITED. 


1007 


Wilder  v.  Brooks,  10  Minn.  50,  88  Am. 

Dec.   49,   p.    292. 
Wilder   v.    I'igott,    L.    R.   22    Ch.    Div. 

263.  p.  237. 
Wilder  v.   Ranney,   95   N.   Y.   7,    12.   3 

Keener   992,   p.   607,   682. 
Wilding  V.  Balder,  21  Beav.  222,  Ames 

Trusts,   221,   p.   625. 
Wiles  V.  Wiles,  3  Md.   1,  56  Am.  Dec. 

733,  p.  647. 
Wilhelm   v.    Eaves,    21    Oreg.    194,    27 

Pac.   1053,   14  L.  R.  A.  297,  p.  219, 

221. 
Wilhelm    v.    Wilken,    149    N.    Y.    447, 

44   N.   E.   82,   52   Am.  St.   Rep.   743, 

32  L.  R.  A.  370,  p.  364. 
Wilkinson   v.   Colley,    164   Pa.    St.    35, 

30    Atl.    286,    26    L.    R.    A.    114.    2 

Keener  300,  p.  820. 
Wilkinson  v.   Dent,  L.  R.   6   Ch.   339, 

340,  p.  234. 
Wilkinson    v.    Henderson,    1    Mylne    & 

K.   582,   p.    191. 
Wilkinson    v.    Tousley,    16    Minn.    299, 

10  Am.  Rep.   139,  p.  486. 
Willard  v.  Eastham,   15  Gray.  328,  77 

Am.  Dec.  366,  p.  653. 
Willard  v.   Tayloe,   8   Wall.   557,   565, 

19  L.  ed.  501,  1  Ames  Eq.  Jur.  404, 

2  Keener   1026,  H.   &   B.   644.   Shep. 

112,  2  Scott  33,  p.    184.  484,  894. 
Willard    V.    Wilhird.    145    U.    S.    116, 

12   Sup.   Ct.   818.   36   L.   ed.   644,   p. 

868. 
Willes   V.   Greenliill.   4   De   Gex,    F.    & 

J.   147,   1.50.  p.  .303. 
Willet  V.  Sandford.  1  Ves.  Sr.   186,  p. 

546. 
Willett  V.  Winnell,  1  Vern.  488.  Kirch. 

469.  p.   698. 
Williams  v.  Bayley,  L.  R.  1  H.  L.  200, 

218,  3  Keener  773.  p.  507,  509. 
Williams   v.   Crabb,    117    Fed.    193,   59 

L.  R.  A.  425,  p.   142. 
Williams  v.  Crarj',  5  Cow.  368.  8  Cow. 

246,  4  Wend.  443,  450,  p.  243. 
Williams    v.    Cudd,    26    S.    C.    213,    2 

S.    E.    14,    4    Am.    St.    Rep.    714.    p. 

411. 
Williams  v.   Day.  2  Cas.  in  Ch.  32,   1 

Ames  Eq.  Jur.  476,  1   Scott  646,  p. 

829. 


Williams  v.   Guile,   117   N.  Y.   343.  22 

X.  E.   1071,  6  L.  R.  A.  366,  p.  667. 
Williams  v.  Harlan,  88  Md.  1,  71  Am. 

St.   Rep.    394,   41    Atl.   51,   p.    817. 
Williams    v.    Hollingsworth,    1    Strob. 

Eq.    103,   47   Am.   Dec.    527,   p.    343. 
Williams  v.   Keyes,   90   Mich.   290,   51 

N.  W.  520,  30  Am.  St.  Rep.  438,  p. 

350. 
\Mlliams  v.  Lambe,  3  Brown  Ch.  263, 

264,  p.  371. 
Williams  v.   McCarty,   74  Ala.  295,   p. 

748. 
Williams   v.    Matthews,   47    N.    J.    Eq. 

196,   20   Atl.   261,    1    Keener   301.    p. 

795. 
Williams  v.  New  York  Cent.  R.  R.  Co., 

16    N.    Y.    97,    69   Am.    Dec.    651,    1 

Ames  Eq.  Jur.   521,   1   Scott   706,  p. 

824. 
Williams    v.    Rand,    9   Tex.    Civ.    App. 

631,  30  S.   W.   .509,  p.   354. 
Williams    v.    Vanderbilt.    145    111.    238, 

251,   36   Am.   St.   Rep.   486,   494,   34 

N.    E.    476.    21     L.    R.    A.    489,    p. 

743. 
Williams    v.    Williams.    8    N.    Y.    525, 

p.  583. 
Williams  v.   Williams.  2   Swanst.   253, 

2  Keener   199,  p.   820. 
Williamson   v.   Brown,    15   N.    Y.    354, 

360,    362.   H.   &    B.    86.    p.    260.   263, 

268.  270,  279. 
Williamson  v.   Jones,   43   W.   Va.   562, 

563.  64   Am.   St.  Rep.  891.  27   S.  E. 

411.    38    L.    R.    A.    694,    702,    703.    p. 

399. 
Willis  V.    Farley,   24   Cal.   490.   500,   p. 

673. 
Willmott  V.  Barber.  L.  R.   15  Ch.  Div. 

96,    106,   p.   402. 
Wills.    Ex   parte.    1    Ves.    162,    2    Cox, 

233,  p.  741. 
Wills  V.  Stradling,  3  Ves.  378.  1  Ames 

Eq.  Jur.  291,  2  Scott  201.  2  Keener 

626.  p.  901,  902. 
Willson  V.   Love,    [1896]    1   Q.   B.   626, 

p.  221. 
Wiliiiot    V.    Woodhouse,    4    Brown    Ch. 

227.   p.   244. 
Wilson    V.    Campbell,    110    IMich.    580, 

68   N.   \Y.  278,  35  L.  R.   A.  544,  p. 

351. 


1008 


TABLE   OF    CASES    CITED. 


Wilson   V.    CoDsol.    Store   Service    Co., 

88    Fed.    286,    31    C.    C.    A.    533,    p. 

836. 
Wilson  V.  Eigenbrodt,  30  Minn.  4,   13 

N.  W.  907,  p.  707. 
Wilson   V.    Furness   R'y,   L.   R.    9   Eq. 

28,  2  Keener  164,  p.  888. 
Wilson  V.  Little,  2  N.  Y.  443,  51  Am. 

Dec.  307,  p.   734. 
Wilson  V.  McCnllough,  23  Pa.  St.  440. 

62  Am.  Dec.  347,  p.  262,  267. 
Wilson    V.    Mayor    etc.    of    Baltimore. 

83   Md.    203,    55    Am.    St.    Rep.    339, 

34  Atl.  774,  p.  219,  226. 
Wilson  V.  Mineral  Point,  39  Wis.  160, 

H.    &   B.    766,    Shep.    318,   p.    843. 
Wilson  V.  Northampton  etc.  R'y,  L.  R. 

9   Ch.   279,   284.   p.   879. 
Wilson  V.  O'Leary,   L.   R.    12  Eq.   525, 

527,  7   Ch.  448,  p.  244. 
Wilson    V.    Thornbury,    L.    R.    10    Ch. 

239,  248,   249,   p.   237,  239. 
Wilson   V.   Townsend.    1    Drew.   &    Sm. 

324,    1    Ames   Eq.   Jur.   539,   p.    834. 
Wilson  V.  Williams,  3  Jur.  N.  S.  810. 

2   Scott  392,  p.   906. 
Wilson    V.    Wilson,    41    Oreg.    459,    69 

Pac.    923,   p.    198. 
Wilson's  Estate,  In  re,  2  Pa.  St.  325, 

p.  769. 
Wineburgh  v.  U.  S.  etc.  Co.,  173  Mass. 

60,   53   N.   E.   145,  73   Am.   St.   Rep. 

261,   p.   633. 
Winfield  Nat.  Bank  v.  Croco,  46  Kan. 

620,  26   Pac.   939.   p.   507,   509. 
Wing  V.    Harvey.   5   De   (lex,   ]M.   &   C 

265,  p.   224. 
Wing  V.  Spaulding,  64  Vt.  83,  23  Atl. 

615,  1  Keener  .308,  p.  795. 
Wing  &   Evans  v.   Hartupee,   122   Fed. 

897,    (C.  C.  A.)    p.  515. 
Winship    v.     Pitts,     3     Paige,     259,     1 

Keener  473,  p.   827. 
Winter   v.   Montgomery    C    L.    Co.,    89 

Ala.  544.  7  South.  773.  p.  338. 
Winter    v.    Winter,    5    Hare,    306,    p. 

665. 
Wirt    v.    Hicks,    46    Fed.    71,    1    Ames 

Eq.    Jur.    626,    p.    835. 
Wiser   v.    Lawler,    189    U.    S.    260,    23 

Sup.   Ct.   624.   p.    396. 
Wistar's    Appeal,    80    Pa.    St.    484,    p. 

881. 


Wiswall  V.  Sampson,  14  How.  52,  65, 

14   L.   ed.   322,   Shep.    334,   p.   809. 
Witczinski  v.   Everman,   51   Miss.  841, 

p.   704. 
Withers    v.    Yeadon,    1    Rich.    Eq.    324, 

329,    p.    411. 
Withy   V.    Cottle,    1    Sim.    &    St.    174, 

1  Ames  Eq.  Jur.  57,  p.  881,  883. 
^^■ittenbrock    v.    Parker^    102    Cal.    93, 

101,  36   Pac.   374,  41   Am.   St.   Rep. 

172,   24   L.   R.   A.    197,   p.   303,   305, 

307. 
Wombwell  v.  Belasyse,  6  Ves.    (2  ed.) 

110,  a,  note,   1   Keener  470,   1   Scott 

654. 
Wood    V.    Chapin,    13    N.    Y.    509,    67 

Am.   Dec.   62,  p.   359. 
Wood    V.    GriHitli,     1     Swanst.    43,    2 

Keener    114,    p.    884. 
\\ood    V.    Hudson,    96    Ala.    469,     11 

South.  530,  p.  75. 
^^■ood  V.  Mann,   1   Sum.  506,  507-509, 

578.    Fed.    Cas.   Nos.    17,951,    17,952, 

1  Scott  507,  p.  362,  364,  375. 
Wood  V.  Midgley,  5  De  Gex,  M.  &  G. 

41,   2    Keener    750,    1    Scott   462,   p. 

479,    905. 
Wood  V.   Rabe,   96  X.   Y.   414,  48   Am. 

Rep.   640,  p.  478,  604. 
Wood  V.   Rowcliffe,   3    Hare.   304,   308, 

2  Pliill.   Cli.   382,    1    Ames   Eq.   Jur. 
43.    2    Scott    40,    p.    883. 

Woodall  V.  Kelly,  85  Ala.  368,  7  Am. 

St.   Rep.    57,   5    South.    164,   p.    748, 

749. 
Woodburn's   Estate,    138    Pa.    St.    606. 

21    Am.  St.  Rep.   932,  21   Atl.   16,  p. 

238. 
Woodbury  v.  Gardner,  77  Me.   68,  75. 

p.  478. 
Woods  V.  Farmere,  7  Watts.  382,  387, 

388,   32  Am.   Dec.   732,   772,   p.   274, 

277. 
Woods   V.    Woods,    1    Mylne   &    C.    401. 

]).   570. 
Woodstock  Iron  Co.  v.   Extension  Co., 

129    U.    S.    643,    9    Sup.    Ct.    402,    p. 

495. 
^Voodstock    Iron     Co.    v.    Fullenwider. 

87    Ala.    584,    13    Am.    St.    Rep.    73. 

6   South.    197.   p.   875. 
Woodsworth  v.  Tanner,  94  Mo.    124,  7 

S.  W.   104,  p.  64. 


TABLE   OF    CASES   CITED. 


1009 


Woodward   v.    Gyles,    2    Vera.    119;    2 

Scott   121,  p.   222. 
WooUani   v.   Heam,   2   Lead.   Cas.   Eq. 

!t20.   i»44-1040,   4th   Am.   ed.,   7   Ves. 

211,  2   Ames   Eq.   Jur.   297,  2   Scott 

262,    p.    433. 
Woolums   V.   Horsley.   93   Ky.   582.   20 

S.   W.    781,  2    Keener   926,   2   Scott 

251,  p.   468. 
Worden  v.   California   Fig   Syrup   Co., 

187  U.  S.  516,  23  Sup.  Ct.   161,  p. 

494,    840. 
Workingman's  B.   &   S.  Ass'n  v.   Wil- 
liams,   (Tenn.    Ch.   App.)    37    S.   W. 

1019,  p.  340. 
Wonall  V.  Harford,  8  Ves.  4,  8.  Ames 

Trusts.    415.    p.    623,    624. 
W'orthington    v.    ^loon,    53    N.    J.    Eq. 

46.    30    Atl.    251.    p.    227. 
Worthington    v.     Waring.     157    Mass. 

421,    .34    Am.    St.    Rep.    294,    32    N. 

E.  744,  20  L.  R.  A.  342,  Lewis  250, 

p.    847.  ' 
Wray  v.   Steele,  2  Ves.   &   B.   388.   p. 

590. 
Wright  V.  Bell.  5  Price.  325.  328,  329, 

2  Keener  9.   p.   879.   883. 
Wright  V.  Carter,   [1903]    1   Ch.  27.  p. 

519. 
Wright    V.    Fisher,    fi5    Mich.    275.    32 

N.   W.   605,  8  Am.   St.  Rep.   886.  p. 

508. 
Wright  V.   Stewart,   130  Fed.  905.  921. 

p.    502. 
Wright    V.    Vanderplank,    8    De    Gex, 

AL  &  G.   133,   137,   146,  p.  522,  526. 
Wright  V.    Ward.   4   Russ.   215-220,    1 

Keener  217.  p.   791.  797. 
Wych  V.  Meal,  3  P.  Wms.  311.  312.  p. 

/9. 
VN'yche  v.   Greene,    16  Ga.   49,  2   Ames 

Cas.   Eq.   Jur.   289.   p.   419. 
Wyeth  V.  Renz-Bowles  Co.,  23  Ky.  Law 

Rep.  23,  .38,  66  S.  W.  825,  p.  362. 
Wyllie   V.   Pollen.   3   De   Gex,   .T.   &    S. 

596,  601,  p.   304.   307. 
Wyman    v.    Eaton.    107    Iowa.    217,    70 

Am.  St.  Rep.  193,  77  N.  W.  865,  43 

L,   R.   A.  695.  H.  &.  B.  888,  p.   811. 
Wyman  v.   Fort   Dearhoi-n   Nat.   Bank, 

181   111.  279.   .54   X.   E.   946,   72  Am. 

St.   Rep.   259,  H.   &   B.   909,   p.    181, 

707. 

64 


Wynn('  v.  Callander,  1  Russ,  293,  296, 
297,  p.  499. 


Yale  V.  Dederor,  18  N.  Y.  265,  72  Am. 

Dec.  503,  22  X.  Y.  450,  456,  78  Am. 

Dec.  216,  68  X.  Y'.  329,  p.  652,  653. 
Y'^ale  Gas  Stove  Co.  v.  Wilcox,  64  Conn. 

101,   42   Am.   St.   Rep.    159,   29   Atl. 

303,    25    L.   R.    A.    90,   p.    523,    618, 

619,   631,  634. 
Y'arborough  v.  Thompson,  3  Smedes  & 

M.  291,  41  Am.  Dec.  626,  1   Keener 

278,    p.    790,    791,    851. 
Yarnell    v.    Brown,    170    111.    362.    48 

X.   E.   909,  62  Am.  St.  Rep.  380.  p. 

362. 
Yates  V.  Jack,  L.  R.   1   Ch.  App.   29:), 

1   Ames   Eq.   Jur.   541,   p.   834. 
Yeakel  v.  McAtee,   156  Pa.  St.  600.  27 

Atl.   277.   p.   522. 
York  V.  Hinkle,  80  Wis.  624,  50  X.  W. 

895,   27   Am.   St.   Rep.   73,   3   Keener 

770,   p.   509. 
York  V.   McXutt,   16  Tex.    13,   67   Am. 

Dec.  607,  p.  315. 
Young  V.   Guy,  87  N.  Y.   462,  1   Ames 

Eq.  Jur.  207,  p,  360. 
Young   V.    Overbaugh,    145    X.    Y^.    158, 

39  N.  E.  712,  2  Keener  743,  p.  904. 
Young  V.   Paul.   10   X.  J.   Eq.  401,   64 

Am.    Dec,    456,    2    Keener    1219.    p. 

906. 
Young    V.    Young.    L.    R.    3    Eq.    801, 

p.  373. 
Young   V.   Y^oung,   80   X.    Y.   422.    436, 

36   Am.   Rep.   634,   H.   &   B.   387,   p. 

.559,  561,  562,  567,  568. 
Youngblood   v.    Sexton,    32   Mich.    406, 

410.  20  Am.   Rep.  654,  p.    123. 
Younge  v.   Furse,   8   De  Gex,   M.   &   G. 

756.   p.   489. 
Youst  V.  Martin.  3  Serg.  &  R.  423,  ,p. 

362. 


Zabriskie   v.    SaKor.   80   X.    Y.   555.   p. 

723. 
Zabriskie  v.  Smith.  13  X.  Y.  322,  333, 

04  Am.  Dec.  551,  p.  761. 


1010 


TABLE   OF    CASES    CITED, 


Zeile,  Estate  of,   74   Cal.    127,   133,   15 

Pac.   455,  p.   245. 
Zimmerman  v.  Fraley,  70  Md.  561,  17 

Atl.   560,   p.    614. 


ZSeller  v.  Riley,  100  N.  Y.  108,  2  N. 
E.  388,  53  Am.  Rep.  157,  p.  364, 
376. 


INDEX. 


INDEX.* 


A 
ABATEMENT, 

order  of.  appropriatinfj  assets  of  decedonts,  1135. 
what,  is,  and  nature  of,   11.10. 
of  specific   lepfacies.    11. S7. 

demonstrative.    11.33,    113S. 

general,  1 130. 
doctrine  of,  subject  to  testator's  intention,  ILS.*!.  1140,  1141. 
no  exemption  from,  of  fieneral   legacies  in  favor  legacies  to  near  relatives, 

1141. 
general  legacies  for  valuable  consideration  preferred  in,   1142. 

ACCIDENT, 

definition    of.    823. 

rationale    of    equity    jurisdiction    over.    824. 

general  limitations  on  equity  jurisdiction  over.  825. 

instances   in    whicli    jurisdiction    occasioned   by.   does   not    exist.   826-829. 

non-performance  of  contracts  occasioned  by.   826. 

supplying   lost    or    destroyed    records,    827. 

where,  is   result  of  negligence  or  fault,  828. 

where  })arty  has  no  vested  right,  but  expectancy  or  hope.  828. 

jurisdiction    on   ground    of,    not    exercised   against    bona    fide    purchaser, 
776.   82!). 
not  exercised  against  one  witli  equal  equity,  829. 
instances   in   which   jurisdiction   occasioned  by,   exists,   830-837. 

in   suits  on  lost  bonds  and  sealed   instruments,   831. 

in  suits  on  lost  or  destroyed  unsealed  instruments.  832. 

penalties   inciirred  through,   relieved   against.   826.   833. 

forfeitures  occasioned  by,   relieved  against,  451,   454.   826.   833. 

defective  execution  of  powers  through,  aided,   589,   590,   834,   835. 

judgments  set  aside  or  enjoined,  when  defense  prevented  by,  836,   1364. 

ACCOUNTING. 

origin  of  equitable  jurisdiction  for.  1420. 

jurisdiction,   when   exercised;    inadequacy   of   legal    remedies.    1420.    1421. 

ADMINISTRATIONS, 

jurisdiction    of   equity   over,    1152-1154. 

exists  where  full  equity  jurisprudence  adopted,  unless  expressly  abro- 
gated.   1153. 
a.s  administered  in  United  States  courts.  293.  note, 
as  administered  in  the  several  states,  1154. 


*For  a  full  analytical  index,  see  rom.  E(i,   .Jur..  :>d  ed..  pp.  3337-3525. 

[1013] 


1014  INDEX. 

ASSIGNMENTS, 

of  things  in  action;  estates  and  interests  ai*ising  from,  1270-1279. 

things    in    action    not   assignable    at    ancient    connnon    law,    137,    1270, 
1297. 

assignable  in  eqviity  for  valuable  consideration,  1270.  1297. 
assignee  acquired  no  right  at  ancient  common  law,   137,   1270. 

acquires   an   equitable   ownership,    137,    108,    1271. 
assignee  finally  permitted  to  sue  in  assignor's  name  at  law,   113,   137, 

1272. 
legislation   regarding,    168,    1273,    1297. 

real   party   in   interest  to   sue   where   reformed    procedure   adopted, 
1274. 
what  are  and  aie  not  assignable,  1275. 
wliat    forbidden    by    public    policy,    1276. 
jurisdiction   of  equity  over,   former  importance,   150,   1271. 
Avhen   exercised  at  present  day,   1277,   1278. 
nature  of  the  equitable  remedy  given  in  cases  of,  1416. 
notice   to    debtor,    liolder,    or   trustee,    requisite   to    establish    rights    of 

priority  in,  693-702,  1279.     See  Priorities. 
are  subject  to  equities  in  favor  of  debtor  and  third   persons,   703-715, 
1279.     See  Priorities. 
of  a  fund  by  order  or  otherwise^   1280-1284. 

notice  to  assignees  essential  to  absolute.   1281,   1282. 

mere   mandates   to   agents   or  depositaries   directing   payment,   not,   but 

revocable,    1282. 
fund  need   not  be  in  existence,  if  it  exists   in  potentiality,   1275,  note, 

1283. 
bills  of  exchange  and  checks  not  in  general  equitable,  1284. 
of  iTOssibilities,  expectancies,  and  property  to  be  acquired   in  future,   1285- 
1291. 
jurisdiction  of  equity  over,  formerly  and  at  present,   1270.   1271,   1285, 

1287. 
grades   of   contingencies,   expectancies,   and   possibilities,    1286. 
of  possibilities,    1287,   1297. 

of  personal  property  to  be  acquired  in  future,  1288-1291. 
of  future  cargoes  or  freight,   1289. 

of  future  wages,  payments,  demands,  etc.,    1283,    1289.  "note. 
present  transfer  or  present  agreement  necessary  in,   1290. 
Iip7i  extends  to  substituted  jiroperty,  1291. 
avail  against  what  persons,   1291. 
efl'ect  of  statutes  on,   1291,   1297. 

moi'tgages  of  future  acquired  personal  property,  operating  as,  1236, 
note.   1288-1291.     See  Liens. 
specific  performance  of  contracts  to  assign  things   in   action   when  decreed, 
1402,    1403,  note. 

AUXILIARY  JURISDICTION, 

objects    and   definition    of,    142,    190. 

branches   of;    discovery;    examination   of   witnesses,    142,    190-215. 
discovery,   143,   144,   190-209.     See  Discovery. 
perpetuation  of  testimony,  82..  142,  190,  210-212.     Sec  PERrETUATiCN  op 

Testimoxy. 
testimony   de   bene   esse,   82,    142,    190,   210,   213-215.      See   Testimoxy 
DE  Bene  Esse. 


INDEX.  1015 

B. 
BILLS  OF  PEACE, 

nature   of   remedy   of,    1393 

rationale  of,  249-251.     !See  Multiplicity  of  Suits. 

kinds    of,    246. 

to    establish   general    riglit    between    single    parly    and    n\nnerous    per- 
sons, 246. 

Sec  Multiplicity  of  Suits. 
to   quiet   coniplonant's  title   against   ejectment   suits,   240,   253,   254. 
grounds  ani  purpose.*  of,  248. 

BONA    FIDE    PURCHASER, 

general  meaning,  scope  of,  anrt  limitations  on  doctrine  of,  735. 
effect  of  recording  acts  on  dof'trine  of,  736,  744. 
rationale   of   doctrine   of,   75^7-744. 

equitable  origin,  natures,  and  operation,  of  doctrine  of,  738. 
doctrine  not  a  rule  of  jn-operty  or  of  title,  739. 
what  kinds  of  estates  j)rotected,  740-743. 
conflicting   opin>f>ns,    740,    741. 
formula  of  Lorrt  Westbury^  742. 
what  constitutes  a,   745-702. 

element   of  valuable   consideration,   746-751. 

what  is  valuable  consideration :    illustrations,  747-749. 

antecedent    debts    whether    valuable    consideration,    747-749,    1048. 

securitj'  for.  or  satisfaction  of,  antecedent  debts,   749. 
payment   of   consideration^   750,   751. 
paj^nient  must  be  actual,  751. 
el»»»ent    of    absence    of    notice,    752-761. 
effects   of   notice,    753-754. 

notice  inhering  in  form  of  conveyance,  753. 

quitclaim  deeds,  753. 
second   purchaser    without,    from    first    purchaser    Avith    notice, 

754. 
second   purchaser   with,    from    first    purchaser   without    notice, 
754. 
time  of  giving  notice,   691,  755. 
recording  in  connection  with  notice,  757-761. 

interest  under  prior  unrecorded  conveyance,   758. 
requisites  to   protection   from   first   record  by   subsequent   pur- 
chaser,  059,   759. 

burden  of  proof  as  to  bona   fide  purchase,  759.  note. 
with  apparent  record  title  from  grantor  with   notice  of  ]irior 

unrecorded    conveyance,    760. 
break  in  record  title;  when  purchaser  still  charged  with  notice 
of    prior    imrecorded    title,    058. 
clement  of  good  faith,  754,  702. 
effects  of  bona  fide  purchase  as  defense,  7(i3-778. 

suits   by   holder   of   legal    estate   against,   under   auxiliary    jurisdiction, 

742,  704. 
suits  by  holder  of  legal   estate  against,  under  concurrent   jurisdiction, 

765. 
suits  by  holder  of  equitable,  against  purchaser  of  legal  estate,  760-774. 
where  legal  estate  acquired  by  original   purchase,  707. 


1016  IXDEX. 

BONA  FIDE  rVnCllAHER— Continued. 

where  legal  estate  subsfMjuciitly  acquired  l)y  purchaser  of  equitable, 
740,   7G8. 

where   purcliaser   acquires   legal   estate   from   trustee,   72S.    729, 

770. 
rvile   as    applied    in   America,    771-77.">. 
where   purchase  made   at   execution   sale.    724. 

assignees  of  things  in  action  perfecting  legal  title,  701,  712,  713, 
suits  against,  by  holder  of  an  equity,  775-778. 

for  relief  against  accident  or  mistake.   77*5.  829.  871. 
for  relief  against  fraud  upon  creditors,  777.  968. 
against    conveyance   obtained    by    frauds    777. 
for  fraud  in  general.  899,   918. 
when  not  a  defense  in  fraud,  915.  note.  918. 
affirmative  relief  to,  779-783. 

where  unrightef)us   conduct    toward,   by   liolder  of  prior  title,   780,   782, 
prior  encumbrancers  who  have  misled,  781,  782. 
in    removing   ckmd   frcjm   title^    783. 
mode  and  form   of  defense  of,   784,   785. 
necessary  allegations,  785. 

BOUNDARIES,  ESTABLISHMENT  OF  DISPUTED, 
origin  of  jurisdiction,   1384. 
special  equitable  incidents  required  for,  1379,   1384,  1385. 


CANCELLATION, 

when    granted    83(1,    870.    S99.    910-974.    1377.      See    Accident;    Mistake; 
Fh.wd. 

CLASSIFICATION    OF    E(,)U1TY, 

according  to  the  nature  of  the  jurisdiction,   121. 

in  the  tlirce  divisions  of  exclusive,  concurrent,  and  auxiliary,   121. 
plan   and   order  of   arrangements   adopted   in   present   treatise,    128. 

CLOUD   ON   TITLE, 

jurisdiction    to    remove,    well    settled,    1398,    1399 

CONCURRENT   .lURlSDlCTlON, 

what  embraced   in,   139-141,    173-175. 

where  primary  right,  estate,  or  interest  is  legal,  and  legal  and  equitable 

remedies  are  alike,   139,   173,  222. 
cases    how    classified,    175,    184. 

fraud,  accident,  and  mistake  as  occasions  of,  188.     See  Accident;  Mis- 
T.\KE ;    Fraud. 
remedies   must  be  legal,   that   suits   may   fall   within.    175,    1379.    1410. 
when    does    not    exist,    176-179. 

when,  in  general,  law  courts  can  do  complete  justice,  176. 
limitations   on   rule,    176,    177. 

legal  remedy  must  be  complete,  certain,  and  not  doubtful,  176,  180. 
not  exercised  merely  to  recover  possession,  or  try  title  to  chattels   or 

land,    177,   735. 
not  exercised  to  recover  money  merely  as  debts  or  damages,   178. 
where  law  court     has  first  taken  jurisdiction,  179. 


INDKX.  1017 

CONCURRENT    JURISDICTIOX— Co»//H!/rfif. 

exists  when   legal    remedy   is   inadequate.    1.39.    17:3.    170,    180,   222. 
particular  instances,  180. 
principal    matters   coming    within.    184-18!). 

suits  for  recovery  of  lands  or  chattels,  185.  137!t.  See  P.\rtitiox  of 
L.\M):  Assignment  of  Dower  :  Boundaries.  Estahlishinc;  Dis- 
puted ;    Chattels. 

for  pecuniary   recoveries,    186-188,    1416.     8ee  Accounting:    Con- 
tribution ;  Exoneration,  etc. 
special  cases^  189. 

CONTRACTS, 

essential   elements   of,  the   same  as   at  law,    1293. 

covenants    creating    equitable    servitudes,    089.    1295. 

enforcement  of.   1297. 

when  no  action   at  law   can   be  maintained.    1297.    1409. 
violation  of.  prevented  by  injunctions,   1341-1344.     See  Injunctions, 
specific  performance  of.     See  Specific  Performance. 

CONTRIBUTION,   1418. 

CONVERSION, 

definition   and   description   of,  371,    1159. 

is  an  application  of  maxim,   Equity  regards  that  as  done  which   ought  to 

be  done,  371,   1159. 
words  sufficient  to  effect,  1159,  1160. 

under  a  contract  of  sale  of  lands.  105.  308.   1101,   1200,   1201,   1263. 
time  from  which,  takes  place^   1102.   1163. 

in  contracts  of  sale  with  option.   1103. 
effects  of,   1104-1100. 

where  land  directed  to  be  sold.   371.  992,   1159,   1104. 

where  money  directed  or  agreed  to  be  laid  out  in  land.  371,  992.  1159, 
1165. 

limitations  on.   1106. 
resulting   trust   on   failure   of   purposes    of^    1169-1174, 

object  and   extent   of  doctrine   of.   1109. 

in  total   failure,  to  w'hom   results,   1170. 
reconversion,    1175-1178. 

definition   of,    1175. 

parties  sui  juris  who  may  elect  to  have  a,  1176. 

mode  of  election;   express  or  implied,   1175,   1177. 

COVENANTS, 

creating  equitable  servitudes   enforced  or  violation   restrained   against  per- 
sons having  notice,  689^  692,   1295,  and  notes. 

CREDITORS'  SUITS,   1415. 


D 

DIRECTORS, 

jurisdiction   of  equity   over,    158.    1088. 
are  quasi   trustees.   903  note.    1088.    1089. 
are  quasi  trustees  and  agents,  1089.   1090. 
powers  of,  derived  from  fimction  of  acencv,   1089. 


1018  INDEX. 

DIRECTORS— C'ojifjHwe^Z. 

are  quasi  trustees  for  corporation  with  respect  to  corporate  property,  1090. 

for  stockliolders  with  reference  to  shares  of  stock,  1090. 
liability  of,  to  stockliolders,  as  corporate  agents,   1091. 
liability   of,   for   a   violation   of   their  trust,    1091-1090. 

where   guilty    or    fraudulent    misrepresentations    or    concealments,    879, 
881,   1092. 

where   proceedings   of,   are   ultra   vires,    109.'i. 

wrongful  dealings  of,  with  corporate  property,   1094,  1095. 

corporation   when  to   sue,   1091,    1094. 

stockholders    when    to    sue,    1091-109:^,    109.-). 
may  be  restrained  from  committing  illegal   or  ultra   vires  acts,   1345. 

DISCOVERY. 

embraced  in  auxiliary  jurisdiction  of  equity,   142,  190. 

different    significations    of   term,    191. 

definition,   and   object  of  suit   for,    191. 

origin   of^    192. 

entire  or  practical  abolition  of,   142,   19.3.   194.  281. 

rules   concerning,    recognized    in    statutory    proceedings    of,    194. 

when   enforced,    191,    195-209. 

what  proceedings,  in  what  courts  aided  by,   196,   197. 
relations  of  parties  to  each  other,  that  may  be  granted,  191,  198-200. 
plaintiffs   in   suits   for,   198. 
defendants   in   suits  for,   199. 
matters  which  may  be  subject  of,  201-203. 

confined   to   facts   material   to   jilaintiff's   title   or   cause   of   action, 

201. 
defendant   need   not   criminate   himself.    197,   202. 

bound  to  disclose  frauds,   199,  201-203. 
what   privileged   from,   203. 
manner    in   which    defendant    must    make,    204. 

of    other    property,    205,   note, 
use  of  answer  in  suit  for,  governed  by  rules  of  evidence,  208. 
as  source  or  occasion  of  equitable  jurisdiction,  223-230. 
early   and   modern   English   rules,   224-220. 

American  rule  as  to  deciding  whole  controversy,  where  asked,  227-230, 
234. 
concurrent    jurisdiction    enlarged,    223,    227. 
limitations    on    rule,    228,    229. 
true  meaning  of  rule,  230. 
effect   of   legislation,  230. 

DOCTRINES  OF  EQUITY, 

what  are,   301.     See   Penalties;    Forfeitures;    Electiox;    Notice,  etc. 

DONATIONS   CAUSA  MORTIS.     See  Gifts   C.\usa   Mortis. 

DOWER,  ASSIG K:\IENT  OF, 

early  origin   of  equitable  jurisdiction,   1380. 

jurisdiction   for  what   purpose   at   first   invoked,    1381. 

growth  of  the  jurisdiction,   1380,   1381. 

advantages    of   equitable   remedy   of.    over   legal    remedy,    1382. 

exclusive  jurisdiction  for,  in  equitable  estates,  1383. 


INDEX.  1019 

E. 
ELECTION, 

rationale  of  doctrine  of,  462,  4G5. 

foundation  on   maxim.   He  wlio  seeks  equity   must  do  equity,  465. 
meaning,  scope,  and  elTects  of,  466-470. 

compensation   made   to   disappointed   third   person,   468.    r^l7. 
applies  to  all  instruments  of  donation,   470. 
necessity  for,  when  does  or  does  not  arise,  471-50.5. 
fundamental  rule  of  interjiretation,  472. 

interpretation  where  donor  has  only  a  partial   interest,  473,  488. 
strong   leaning  against,  by   courts,   473.   488. 
extrinsic   evidence   of   intention,  whether   admissible,   473.  • 
cases  arising  where  donor  gives  property  wholly  another's.  47f>-486. 
gift  of  specific   property,  473.  477. 

will    invalid   in   another   country   or  state,   484. 
cases  arising  where  donor  gives  pi'operty  in  which  he  has  partial   interest, 
487-505. 

general  doctrine,  473,  488. 
donor   owns   only   an   undivided   share,   489. 
dower   and   benefits   given    by    husband's   will,    492-502. 
general  rule  when  widow  compelled  to  elect,  493. 
rule  changed  bj'  statute  in  certain  states,  494. 
devise  in  trust  to  sell  or  with  power  of  sale,  499. 
devise  to  widow  and  others  in  eqvial  shares,  502. 
who   may   elect,   507-510. 

court   elects   for   infants,   509. 
court  elects  for  lunatics,  510. 
rights   and   privileges   of   i)ersons   bound   to   elect,   511,   512. 
time   of,    513. 

mode  of,  express  or  implied,  conduct  amounting  to,   514,  515. 
effects   of,   510,   517. 

EQUITABLE   ESTATES, 

cases    concerning^    embraced    in    exclusive    jurisdiction,    137,    146. 
maj'    exist    in    things    real    and     personal,   146. 
may   be   of   various   amounts   and   degrees,    140. 
distinction   between,  and   "equities,"    146. 
defined  and  described,   147-149. 

require  two   estates  vested   in   diff"erent   persons,    147. 

are   regarded    in   equity   as   the   real    ownerships,    147,    685,    975. 

two  classes  of,  liermanent  and  temporaiy;    examples  of.   148. 

may  be  regarded  as  trusts.   149. 
distinction   between    certain   doctrines   governing,    and,    150. 
enumeration   of,    150. 

various,  described :     trusts,  married  women's  separate  property,  mortgages, 
liens,    etc.,    975-1291.      See    Trusts;    Married    Women,    etc. 

EQUITY, 

necessity  of  an  historical   review  of,   1. 

aequitas  in  the  Roman  law,  8-9. 

analogies  and  differences  between  growth  of,  in  English  and  Roman  law,  9. 

origin  and  growth  of,  in  English  law,   10-42. 

primitive  condition  of  the  law  and  the  courts,  12,  13. 

infiuence  of  Roman  law  on,   15. 


1020  INDEX. 

EQUITY— Continued. 

causes  which  made  a  court  of,  necessary,  16-23. 

the   rigid   character   of   the   coninion    hiAV,    Ui,    17. 

the   feudal   origin   and   nature  of   certain    laws,    18.    19. 

the   position   and   policy   of   king's   parliament,   and   the   nation  to 

the  Romish   churchy  20. 
the  common-law  procedure,  21-23. 
statute   Edw.    I.,   concerning   new   writs,   and    limited    results   of   same, 

24-29. 
commencement  and  progress  of  jurisdiction  of,   12,  30-42.     See  Juris- 
diction  OF   Equity. 
nature   of,  43-67. 

importance  of  a  correct  notion  of,  43. 
various    meanings   given   to   the   word,    44,    45. 
true   meaning   of,   46,    47. 

theories  of  early  chancellors  concerning,   as   both   supplying  and   correcting 
common   law,   43,  45,  46,   48-54. 

antagonism  to  the  common   law,  48,   50,  54. 
chancellors  guided  by  conscience,  49. 
growth   of  pre-cedents:   efl'ect  of,  49. 

jurisdiction  extended  to  matters  not  remediable  at  common  law;   lati- 
tude   of    this    maxim,    50. 
jurisdiction  supplementary  to  and  corrective  of  common  law,  48,  50. 
unlinished  work   of  chancellors   in   reform,   53,   54. 
reform,  how  accomplished,  53. 
the    law    corrected    and    modified    by.    as    now    administered,    54,    101. 
source  from  which   early  chancellors  took  their   doctrines,   55-58. 
"conscience,"   notions   of   early   chancellors  of,   as  ground   of   authority,   55— 

58,  873. 
finally  establislied  on  basis  of  settled   principles,   59-61. 
expansive  and  flexible  nature  of  precedents,  59-61,  67. 
equitable   jurisdiction,   how   determined    at   present   day,   62. 
recapitulation,   63-67. 

how  atl'ected  by  moral  precepts,  49,  63-67.  424. 
present  relations  of,  with   law.   68-88. 

importance  of  correctly  imderstanding,   68. 
the   law   changed   by  statutes   and   decisions,   69. 
constituent   parts   of,   89-117. 

rights  classified  and   kinds   embraced   in,   90-117.      See  Rights. 
classification    of,    118-128.      See    Classification    of    Equity. 
jurisdiction  of,   129-358.     See  Jurisdiction  of  Equity.     . 

ESTOPPEL, 

nature   of    rights   created   by    equitable.    801. 

equitable,  ari.ses  from  matters  in  pais,  or  conduct  of  party,  802. 

fraud,   liow   far  essential  in  equitable.   803.   805-807. 

definition    of   equitable,    804. 

essential    elements   constituting   equitable,    805. 

requisites    of    equitable,    illustrated,    808-812. 

nature  of  conduct  of  party  creating.  808. 

knowledge  of  the  truth  by  the  party  estopped,  809. 

ignorance    of    truth    by    party    claiming    benefit    of,    810, 

intention    of   party    estopped,   811. 


INDEX.  1021 

ESTOPPEL— row  t  in  ved. 

coiulucl.   iiiusi   he   rcliod   ujxm    and   bo   inducement   to   act,   812. 
operation  and  extent  of  ('(luital)U'j  813-815. 
whether   ai)plies    to    married    women,    814. 
to    infants,    815. 
important   applications   of.    in   equity,   816-821. 
acquiescence   as   working,   816-821. 

as  preventing  rights  of  i-emedy,  817,  897,  917,  965,  1359,  1376.  note. 

as  an,  to   rights  of  property   or   contract,   818. 

corporations    estopped    by    statements    in    prospectuses,    819. 

stockholders   estopped   from   setting  up   ultra   vires   acts,   819. 

in  settlements   of  accounts   or  other  dealings,   820. 

from    conduct    of    debtor    towards    intended    assignee    of    thing    in 

action,    704,    820. 
o\\^ler  estopped   from   asserting   legal    title   to    land,   821. 

EVIDENCE, 

parol.  1()  show  mistake,  accident,  or  fravid,  857-867. 

may  be  admitted  to  show  mistake,  accident,  fraud,  or  surprise,   858. 

admitted    in   suits    for   reformation   and    cancellation^    859. 

admitted  in  defense  to   show  fraud,   surprise,   or  mistake,   in   suits   for 

specific   performance,   860. 
by  plaintiff  in   suits  for  specific  performance  to  show   fraud,   surprise, 
or  mistake,  861-863. 

not  in  general  admitted  in  England,  861. 
admitted  in  America,  802. 

admissible  to   prove   parol   variation   part   performed,   and  contract 
then    enforced,    861,    863. 
effect  of  statute  of   frauds  upon  use   of,   864-867. 

two  classes  of  eases :    omissions ;   insertions,  865. 
limitations  on  admissibility;   Glass  v.  Hulbert,   867. 

EXCLUSIVE   JURISDICTION. 

Avhat  embraced  in,   137.   138,   146. 

embraces    cases    where    primary'    estate,    right,    or    interest    is    equitable, 

137.   146,  222. 
cases  where  the  remedy  is  purely  equitable.  138,  146,  222. 
equitable    estates    and    interests    coming    within,    146-169.      See    Equitable 

Estates. 
remedies  belonging  to,  170-172.     See  Remedies;  Interpleader;  Receivers; 

IX.TUNCTIONS;     SPECIFIC     PERFORMANCE,     etC. 

EXONERATION,   1417. 

F. 

FORFEITITRES. 

when    equity    will    relieve    again.st,    449-458. 

relieved  against  when  agreement  secured  is  one  for  payment  of  money. 

433,    450.    456. 
whether   relieved    against   when    agreement    is    for    performance    of    act 
in   pais.   433,   450. 

whether  depends  on  fact  that  compensation  can  be  made,  381,  433, 
450. 


1022  INDEX. 

FORFEITURES— Coriii»»ed. 

occasioned    by    fraud,   accident,    suipiise,    or    ignorance,    451,    454,    826, 

833. 
no  relief  \\\wn  willful,  or  occasioned  through  negligence,  452,  856,  note, 
arising   from   covenants    in   leases,   450,   453,   454. 
from  contracts  for  sale  of  land,   1408,  note, 
from  other   contracts,   456. 
of  shares  of  stockj  457. 
statutory,  not  relieved  against,  458. 
equity  will  not  enforce^  459. 
(See   Penalties. 

FRAUD, 

various  reliefs  possible  at  law  and  in  equity  on  ground  of,  872. 
equitable  theory  of,  how  differs  from  legal   conception,  872,  885. 
description  of;   essential  elements,  873. 
four  forms  and   classes   of,   in  equity,  874. 
actual,    875-921. 

nature   of^    875. 

misrepresentations    constituting,    S7()-S99. 
must  be  affinnation  of  fact,  877,  878. 

whether  may  be  of  matter  of  ojunion,  877,  878. 
representation,    purpose    for    which    must    be    made,    879-881. 

nature  of,  illustrated  by  false  prospectuses,  reports,  circulars, 
etc.,   881. 
unlrutli  of  statement  necessary,  882. 

intention,  knowledge,  or  belief  of  party  making  statement,  883-889. 
tliree  forms  of  misrejiresentations   at  law,  884,  886,  887. 

rule   in   Derry   v.   Peek,   884,    note, 
in    equity;    no    incident    of    moral    culpability,    885. 
forms   of    misrepresentations    in    equity,    886-888. 
requisites  of  misrei^resentation  as  defense  to  specific  perform- 
ance, 889. 
reliance   upon   misrepresentations   necessary,   890-896. 
party   must   be   justified   in   relying,   891. 
when  party   is,  .or   is   not,   justified   in   relying,   891-896. 

when  information  or  means  of  information  are  possessed, 

893. 
possession    of    knowledge;    j^^tent    defects,    894. 
when   knowledge   or   information   must   be   proved   and   not 

presumed,   891,   895. 
effect  of  words  of  general   caution  or  advice,   896. 
prompt  disaffirmance  necessary  fo:-  relief  in  general  817,  897,  917. 
must   be   material.   879,   890,   898. 
effects    of:    defensive    and    affirmative    reliefs,    899. 
conocahuents    constituting,    900-907. 

(if  material  fact,  when  duty  to  disclose,  constitutes,  901. 
when   duly  <o  disclose  exists,  902-904. 
by  vendee  in  contracts  of  sale,  903. 
by   vendor,   904. 
non-disclosure  of  facts  a  defense  to  s])ecific  performance,  900,  905. 
by  buyers  on  credit,  90 1^,  906. 
where   contract    or    transaction    is   essentially    fiduciary,    902. 


INDEX.  1020 

FRAUD — Confinued. 

jurisdiction   of   equity   in   cases  of,   910-921. 

in  England  extended  over  every  case  of,  912. 

fraudulent   wills   the   exception,    913. 
in   America,   914. 
incidents  of  jurisdiction  and  relief,  915-918. 

plaintiff  particeps   doli;    no   relief  where   in   pari   delicto,   401, 

916. 
ratification,  91(1,  964. 

promptness   in   asserting   rights   necessarj-,   418,   419,   817.   897, 
917,  965. 

delay   through    ignorance,    917. 
relief   given    against    all    participants,  .899,    978. 

l)ona  fide  purchasers  universally  protected,   777,  899,   918. 
when  not  protected,  918. 
particular   instances   of^   919,   920. 

relief  against   judgments    ohtained  by,    914.   note.    919,    1364. 
relief    against    awards    obtained   by,    919. 
in  case   of   fraudulent  devises   or  bequests,    1054. 
constructive    trusts,    920,    1044-1058.      See  Trusts. 
statute  of  frauds  not  an  instrument  for,  431,  858,  859,  921,   1293, 
1409e. 
constructive,   922-974.     See   Fkaud,   Constructive. 

FRAUD,   CONSTRUCTIVE, 

what  the  term,  means  and  embraces,   922. 
three   principal    classes    of,   923. 

apparent   from   intrinsic  nature   and   sul)ject   of  transaction   itself,    924-942. 
inadequacy  of  consideration  amounting  to,  925-928. 
effect  of  inadequacy  pure  and   simple,  926. 
gross   inadequacy   amounting   to,   927. 

inadequacy    coupled    with    other    inequitable    incidents,    928,    948. 
illegal    contracts    and    transactions    permitting    equitable    interposition, 
929-942.      See   Illegality. 
inferred   from   condition   and   relation    of   parties  to   transaction,    943-963. 
transactions  void  or  voidable  with  persons  incapacitated,  944-954. 
with  marrietl  women  and  infants,   945. 
■\\  itli    lunatics,   monomaniacs,   and    idiots^   946. 
person   of   weak   mind,    947. 

j^ersons    in    vinculis;    illiterate    or    ignorant,    928,    948. 
persons  intoxicated,   949. 

persons    under    duress    or    undue    influence,    950,    951. 
expectants,  heirs,  and  reversioners,  953. 
Ijost  obit    contracts,   954. 
transactions    i)resumptively    invalid    between    jiersons    in    fiduciary    re- 
lations,   955-963. 

general  principles,  956. 

classes    of    cases;    parties    dealing    with    each    other,    and    on    one 
side   only,    957. 
:  •  ; .  trustee    and    beneficiary,    958,    1044-1052,    1075-1078. 

principal    and   agent,    959,    1049-1052,    1075-1078. 
""  attorney   and   client,   960,    1049-1052,    1075-1078. 

guardian   and   ward,   961,    1049-1052,    1075-1078. 


1024  INDEX. 

FRAUD,  CONSTRUCTIVE— Co«fn!Mcd. 
parent   and   child,    962. 
miscellaneous   relations,   963. 
confirmation  and  ratification  of  transactions,  preventing  relief,  916,  964. 
acquiescence  and  lapse  of  time,  preventing  relief,  418,  419,  817,  917,  965. 
against   third   persons   not   parties   to   the   transaction   966-974. 
secret  bargains  in,  of  compositions  with  creditors,  967. 
conveyances   in   fraud   of   creditors^   968. 
consideration  requisite  by  statute,  969. 
fravidulent  intent   requisite,   970. 
existing   creditors,   971,   972. 
subsequent  creditors,   97 1^   973. 
conveyances  in  fraud  of  subsequent  purchasers,  974. 
See   Fraud. 

G. 

GIFTS  CAUSA  MORTIS, 

what  are;  general  nature  and  essentials  of,  1146. 

not  testamentary:     donee's   title   obtained   directly   from   donor,    1147. 
property  capable  of  being  subject  of,   1148. 
deliver}',  an   essential  of,   1146,   1149. 

i-evocation  of,  before  death,  by   language  indicating  intent,    1146,   1150. 
by  recovery  from  sickness  or  escape  from   peril,   1146,   1150. 

GOVERNMENT, 

officers  of,  cannot  be  compelled  to  discover  matters  of  state,  203. 
contracts   interfering   with   fimctions  of,   illegal,   935. 
for    procurement    of    office,    935. 
interfering   with    legislative   jiroceedings,    935. 

with  executive  and  judicial   proceedings,   935. 

I. 

ILLEGALITY, 

illegal  contracts  and  transactions  constituting  constructive  fraud,  929-942. 
illegal  because  contrary'  to  statute,  930. 
illegal   because   opposed   to    public    policy,    931-935. 
interfering    with    freedom    of    marriage.    931. 
for  a  separation,  when  valid,  and  enforcement   of.  932. 
conditions  and  limitations  in  instruments  in  restraint  of  marriage. 

when   valid,   933. 
in    restraint    of    trade,    934. 

interfering  with  bidding  at  auctions;  puffing,  934. 
use  of  fraudulent  trade-marks.  934,   1353.  note, 
policy  of  statute  regulating  business  dealings  interfered  with,  402, 

note,    934. 
trading   with   alien    enemies,   934. 

interfering   with   governmental    functions,    935.      See    Government. 
illegal   because   opposed   to   good   morals,    936. 

for  past  or  future  illicit  sexual  intercourse,  93(i. 

promoting  or  furnishing  opportunities  for  unlawful  cohabitation  or 

prostitution.    936. 
constituting   champerty   or   maintenance,    936. 
forbearance   or   abandoning   of   criminal   prosecution,   936. 


INDEX.  1025 

ILLEGALITY— Co7itimicd. 

equitable    jmisilictiou    in    ease    of,    937-942. 

usuriovis    contracts    relieved    against,    391,    937. 
gaming    contracts,   when    relieved   against,    938. 
ordinary   illegal   contracts,   when   relieved   against,   939. 
maxims   limiting   exercise   of   jurisdiction,   939-942. 
meaning   of   maxinij    in   pari   delicto,   etc.,   939. 
in  pari  delicto,  general   rules^  940. 

limitations,  941. 
when  not  in  i)ari  delicto,  942. 

INFANTS, 

jurisdiction  of  equity  over  persons  and  estates  of,   1303-1310. 
importance  of  jurisdiction  in  England,   1303. 
statutory  changes  in  America,   1303,   1304. 
origin    of   the   jurisdiction,    1304. 
how  acquired,   1305. 
extent  of  the  jurisdiction,   130G,    1307. 

appointment    of   guardians,    130G.  ^ 

controlling  the  person   of,    1307. 
how  exercised;   supervision  of  the  guardian,   1308-1310. 
intellectual,  morale  and  religious  education  of  ward,  1307,  1308. 
management  of  property;  maintenance  of  ward,  1309. 
marriage  of  ward,    1310. 
receiver  appointed  of  estates  of,  during  litigation,  1332. 

INJUNCTIONS, 

origin  of;   "interdicts,"   1337. 

may  be  final,  or  preliminary  and  interlocutory,   1337. 

general   principles,   doctrines,    and   rules   the   same,    1337. 

remedy  of,  is  ijreventive,   jiroliibitory,  or  protective,    1337. 

fundamental  principles  governing  issue  of,  1338. 

preliminary  or  interlocutory,   1338.  note. 

to  protect  equitable  estates  or  interests,  and  aid  equitable  remedies.   1339, 

1340. 

transfer  of  negotiable  instruments  restrained  for  fraud,  etc.,  221,  1340, 

1377,   note. 

breach  of  trust  prevented  by,   1340. 

violation   of   confidence   restrained,    1340,   note. 

property   in   litigation   protected   by,    1340. 

to  prevent  violation  of  contracts,   1341-1344. 

governed  by  same  rules  as  specific  performance,  1341. 

restrictive    covenants    creating    equitable    easements,    689,     1295. 

contracts   for  personal   acts,    1342. 

special   agreements  generally   negative   in   nature,    1344. 

corporations    and    directors    restrained    from    doing    illegal    or    ultra    vires 

acts,   or  violating  trust   duties.    1345. 

from   admitting  to.  and    expulsion    from    membership,    1345. 

between    mortgagors    and    mortgag(>es,    to    restrain    waste.    ini])r()]ier    sales, 

etc.,   1345. 

public  officers  not  restrained  from  acting  as  such.   1345. 

illegal,   improper,  or  unlawful   acts  when   restrained.   1345. 

acts   of   municipal    corporations   and   their   officers,    1345,   note. 
65 

7r 


lU26  INDEX. 

INJUNCTIONS— ConitMMed. 

imposition  or  enforcement  of  taxes,  258-2G0,  265,  270,   1345,  note, 
unlawful   exercise  of  eminent  domain  power,    1345,  note, 
cloud  on  title  prevented  by,  1345,  1398,  note, 
to  prevent  or  restrain  commission  of  torts,  1346-1358. 
estates  and  interests  generally  legal.   1346. 
kinds    and    classes    of   torts    restrained,    1347. 

in  case  of  waste,   actual    or  threatened^    1348.   See  Waste. 

public   and   private  nuisances.    1349-1351.      f^ee  NUISANCES, 
violation    of    easements.    1351. 
patent    rights    and    copyrights.    1352-1352d. 
literary    property,    as    distinct    from    copyright,    1353. 
works  of  creative  art..   1353. 
trade-marks,    1354. 
exclusive  franchises,   13o4a. 
good-will,  934,  note,  1355. 

trespasses,   1347,   1356.   1357.  - 

slander   of  title;    libels,   13.58. 
the  "riglit  of  privacy,"   1358.   note, 
strikes,    boycotts,    etc.,    1358.    note, 
mandatory.   1359. 

term  is,  in  strictness,  confined  to  interlocutorv^  or  preliminary,   1359. 
to   restrain   actions   or   judgments   at   law,    1360-1365. 
origin  of  the   jurisdiction,    1360. 

when  jurisdiction  not  exercised;  general  doctrine,  1361. 
when    jurisdiction    exercised^    1362-1364. 

equitable   estate,   right,   or   interest   involved,    1362. 
legal    remedies   inadequate,    1363. 

instruments   executed   tlirough   fraud,  221,   914,   note.    1363. 
eqiiitable  affirmative  relief  necessary.   1363. 
fraud,  accident,  or  mistake  in  trial   at  law,   1364. 
jurisdiction  obsolete  through  ])ower  of  granting  new  trials  at  law,  1365. 
remaining  in  courts  of  equity,   1365. 

INTEEPLEADER, 

remedy   of.   is   ancillary   and   provisional,    171,    1319,    1320. 

general   nature  and   object   of,   1320. 

rationale  of   the   remedy;    the   risk   of  being  vexed   by   several   suits,    1320, 

note, 
may  be  granted  whether  claims  are  legal  or  equitable,  1321. 
essential  elements  requisite  for  remedy  of,   1322-1326. 

the   same   thing,   debt,   or   duty,    1323. 

claims  of  different  amounts,   1323,  note. 

privity  between   opposing   claimants.   1324. 

plaintiff   a   mere   stake-holder,    without    claim    or    interest,    1325. 

no  independent  liability  to  one  claimant,   1326. 

by  bailees,  agents,  tenants,  and  parties  to   contracts,   1326,   1327. 
bill  of,  what  allegations  must  contain,   1328.     • 
bill   In  the  nature  of  a   bill   of,    1328,   note. 
in  legal  actionsr   1329. 


INDEX.  1027 

J. 

JURISDICTION   OF   E(}U1TV. 

conniienc'(>nuMi(    ami    proyipss    of,    12,    :^0-42. 
iuuii'iit    office    of    cliancellov.    12,    31. 
early  ordinary  jurisdiction  of  chancellor,  32. 
chancellor's  extraordinary  jmisdiction ;  grace,  33-35. 
commencement  of^  33. 

rapid  gro%\'th  of;   statute  of  22  Edw.  III.,    concerning,  34,  35. 
principles  upon  which  chancellor  based  decision,  35,  50. 
developjuent  of.  36-30. 

ill-defined    in   earliest   periods.    3(1. 

over  crimes;   recovery  of  land:   trespass.  36. 

causes  tending  to  extend.  37.  3S. 

the  power  of  probing  consciences.   37. 
of  prevention,   37. 

of   awarding   damages,   by   statute,    37. 
recognition   by   Parliament.   37. 
introduction  of  uses_.  38. 
opposition    to,    from    Parliament^    and    common    law    judges,    39. 
how  far  combined  with  that  of  law  in  England  and  America,  40—42. 
definition  of,   129,   130. 

requisites,   in  order  that  a  case  may  come  within   the,   130,  424, 
want   of,   effect  on   judgment,    129,   130. 
objection  to,  when  to  be  raised,   13'0. 

distinction  between  existence  of,  and   its  pi-oper  exercise,    139.  note, 
depends  on  exist<»nce  of  equitable  rights  and  interests  and  equitable  reme- 
dies, 133.  424. 
threefold:     exclusive,   concurrent,  and   auxiliary,   136. 

what  embraced  in  exclusive,  137,   138,   146-172.     See  Exclusint:  Jurisdic- 
tion. 
Avhat  embraced  in  concurrent,  139,  173-189.     Se^  Concurrent  Jurisdiction. 
what  embraced  in  auxiliarj',  142,  190-215.    See  Auxiliary  Jirisdiction. 
rules   concerning  government   of,   216-281. 

inadequacy  of  legal  remedies  aftecting,  132,  133.  137-139,  173,  176,  180. 

216-222.     See  Remedies. 
discoveiy  as  a   s(jurce  of,   223-226.     See  Discovery. 
when  attaches  for  any  purpose  extends  to  whole  controversy,  231-242. 
as  applied  to  concurrent  jurisdiction,  231. 
as  applied  to   exclusive  jurisdiction,   232. 
illustrations   of   doctrine,   234-241. 

in  cases  of  discovery,  224-230,  234.     See  Discovery. 
of    administration,    23.5^    11.54. 
of  injunction,  236.  237. 
miscellaneous  cases,   238-241. 
;  eflFect   of   reformed   procedure   on   doctrine,   242. 

exists  to  prevent  a  multiplicity  of  suits,  243-275.     See  Multiplicity 

OF     SlUTS. 

once   existing,   not   lost   by    jurisdiction    subsequently    acquired   by   law 
courts,  276-281. 
where   jurisdiction    enlarged  by  law  courts,  277,  278. 
where  jurisdiction  enlarged  by  statute,  279,  280. 
where  statute  destroys  cquily  jurisdiction,  281. 
as  held  bv  the  courts  of  the  several  states  and  the  United  States,  282-358. 


1028  INDEX. 

JURISDICTION  OF  EQUITY— Conlijiticd. 

unlimited   jurisdiction   not   held   by   any   American   tribunal,   282. 
amount   of:     four  classes  of  states,  283-288. 

lii'st   class:      where   expressly   eo-extensive   witli    Kn<>;Iish    court   ot 

chancery,  284. 
second    class:     where    impliedly    co-extensive.,    285. 
third    class:     where    limited    by    statute,    280. 

fourth   class:    no  distinction  made  between  law  and  equity,  287. 
as   established    by   Judicial    interi)retation,   289-358. 
uniformity   does   not   exist,   200. 

in  the  United  States  courts,  291-208.     See  United  States  Coirts. 
states    where   jurisdiction    complete,    342-352. 

where   limited   by   inadequacy  of   legal   remedies,   344. 
extent    of    statutory    jurisdiction,    345. 
reformed    procedure    as    art'ecting,    353-358.      See    Reformed    Pro- 
cedure. 

L. 
LEGACIES, 

concurrent  jurisdiction  of  equity  over,   187,  1127. 
jurisdiction    of    equity    over,    when    exclusive,    1127.    1 128. 

as  exists  under  American  legislation.   1120. 
kinds   of,    1130. 
specific,   what  are,   1130. 

ademption  of,  what  is,  and  rules  concerning.  1 131. 
general,  what  are,   1132. 
demonstrative,  what  are,   113.3. 
annuities,  what  are,   1134. 
abatement  of,   1135-1143.     See  Abatement. 
lapsed,   when   occur^   and   result,    1144,    1145. 

statutory    changes,    1145. 
equitable  liens  arising  from   charges   of,   on   property,   I244-I248. 

See  Liens. 

LIENS, 

equitable.    1()5-1G7,    12.33-1269. 

what   included  within  term,   1233. 

dittercnce   between,   and  common   law,    1233. 

analogous  to  and  not  a  species  of  trusts,   1234. 

introduced    to    make   equitable   relief    on    executory    contracts,    efficient, 

1234. 
theory   of,   founded   in   contracts,  express   or   implied,    1234. 
arising  from  express  contract,  1235-1237. 

executory  agreements   indicating  intent  to  charge  or  convey  prop- 
erty  as   security,    1235. 
agreement    with   reference   to   future-acquired   property,   373,    1236, 

1288.    1280. 
form  and  nature  of  agreement  immaterial  if  intent  appears,  1237. 

agreements  to  give,  and  defective  mortgages,  383,  1237. 
illustrations    of    agreements  creating,  1237. 
S(>e  Assignments. 
arising  from   implied  contracts,   1238-1243. 

nature  of  implied  contracts  in  equity,  1238. 


INDEX.  .  1029 

LIE'SS— Con  fi)7  tied. 

principles  upon  wliieh  based,  1239. 

expenditure   by   one   joint   ownerj    1240. 

expenditures  throuuh   mistake  for  true  o^\^le^'s  benefit,   1241. 
arising   from  cliarges  by  \vill  or  by  deed,   1244-1248. 

intent  to  charge  must  clearly  appear,   1245,   1246. 

from  express  charges,   1240. 

from     im2)li<'d    cliarges,     1247. 
ordinary,  in  favor  of  grantor,  on  conveyance,   124!(-r254. 

adopted   in   England   and   in   what  states,    1249. 

origin  and  rationale  of,   125((. 

permitted    only    for    unpaid    purcliase    price,    1251. 

debt  for  purchase  price  must  be  certain,  ascertained,  and  absolute, 
1251. 

how    discharged    or    waived^    1252. 

against  whom  avails,   1253. 

in  favor  of  whom,  avails,   1254. 

whether  personal  and  not   assignable,   1254. 
assignment  of  debt.,  whether  carries  lien,   1254. 
in   favor  of  grantor,   wliere   reserved,    1255,    1259. 

wliat  a    reservation,    125(i. 

resemble  purchase-money  mortgages.  1255,  1257,  1258. 

priority    of.    over    general    encumbrances,    1258. 

how,  may  be  discharged  or  waived,   1259. 

assignable   a?ul   not   i)ersonal,    1259. 

enforced  by  suit   similar  to  foreclosure,    1259. 
in  favor  of  vendor  on  contract  of  sale,  1260-1262. 

distinction  between,  and  gi'antor's  liens  on  conveyance,   1260. 

is  a  mode  of  expressing  vendor's  interest  arising  from  conversion, 
1260,  note,   1261. 

vendor*s   and   vendee's   positions   detennined   by,   and   operation   of, 
doctrine  of   conversion,   368,   372,    1161,    1261. 

how  enforced,   1262. 
in   favor   of   vendee   on   contracts   of   sale,    1263. 
arising  from  deposit  of  title  deeds,  1264-1267. 

the    English    doctrine,    1264. 

the   doctrine    in    America,    1265. 
various   statutory.    1268,    12(i9. 

nature  and  object  of;    mechanics'   liens,   1268. 

LIS  PENDENS, 

constructive  notice  by,  632-040.     See  Notice. 

M. 
MARRIED   WOMEN, 

separate  estate  of,   1098-1113. 

is  a   particular   instance  of  tnists,   1008. 
early   origin   of,    1098. 

jurisdiction   of  equity  over,   exclusive,   1098.   1099. 
legislation    creating   statutory   estates,   effect   of.    1099.    1105. 
actual    tnisteos   in   crealion   of.   unnecessary,    1100. 

how,  and   by  what   instruments  created:    ante   and   post   nuptial   settle- 
ments, gifts,  etc..   1101. 


1030  INDEX. 

]VL\RRIED  WOME'S— Continued. 

what   words   showing   intention   to   create   sufficient,    1102. 
what  property  may  be  included  in,  1098,  1101,  1103. 
power  of  disposition  of,  in  England,   1104. 

in  America,  1105. 
restraint  on  anticipation^  clauses  in,  may  be  inserted  in  settlement  and 
conveyance,   980,    1098,    1107. 

what    words    sufficient   to   constitute    restraint,    1108. 
effect  of  the  restraint,  1109. 
terminated  before  or  after  coverture  by  wife's  dealings,  1103,  1110. 
devolution  in  intestacy,  1110. 
settlement  or  conveyance  by,   in  fraud  of  marriage  set  aside,   1113. 
equity  to  a  settlement,  1114-1118. 

is  an  application  of.  He  who  seeks  equity  must  do  equity,   1114. 
extends  to  M'hat  property,  1115. 
against  whom  extends,   1114,   1115. 
when  does  not  arise,  1116. 
maintenance  of,  power  of  equity  to   compel,    1119. 
alimony,   what   is,    1120. 

jurisdiction   of  equity  to  award,   1120. 
contracts  of,  1121-1126. 

liability  for,  an  incident  of  separate  estate,  1122. 

separate   property   subject   to   restraint   on   anticipation,   not  liable   for, 

1107,   1109,   1123. 
separate  property  held  at  time  of  engagement  only  liable  for,   1123. 
life   interest  with   power  of  appointment  liable  for,   1123. 
personal  decree  cannot  be  obtained  on,   1121,   1123. 
separate  property,  how  reached  on,  1123. 
separate  property,  for  what  kinds  of,  liable,  1124-1126. 
in    England,    1104,    1124. 
in   America,    1125,    1126. 

MARSHALING  OF  SECURITIES, 

maxim,  He  who  seeks  equity  must  do  equity,  the  source  of  doctrine  of»  396. 

nature  of  the   remed}^  of,    1413. 

general   doctrine  and   rules  concerning,    1414. 

MAXniS  OF  EQUITY. 

underlie  the  whole  of  equity  jurisprudence,  359,  360. 
list  of,  and  importance  of,  363. 

Equity  regards  as  done  what  ought  to  be  done,  364-377. 
importance  and  general  operation.  364. 
true  meaning  and   effects,   365-377. 

is   the    source    of   equitable    property    and    estates,    366,   377. 
sources  of  legal  property  or  titles  described,  366. 
;  effect   of   executory   contracts   at   law,   367. 

in   equity,   368,   372,   1161,   1260,   1261,   1263. 
sources   of  equitable   property   described,   369. 
equitable  estates  derived  from.  370-377. 

conversion,  371,  1159.     See  Conversion- 

assignments   of   possibilities   and   property  to   be   acquired   iB 
future,    369,    1235. 

of   things    in    action,    1270. 
of  a  fund,  1270. 


INDEX.  1031 

MAXIINIS   OF   KQUITY— Continued. 

See    Assignments. 
equitable  liens  arising  from   contracts,  373,   1235.     See  Liens. 
express    trusts^    374. 

trusts  arising  by  operation  of  law,  375. 
equity  of  redemption.  370. 
conclusion.   377. 
Equity  looks  to  the  intent  rather  than  to  the  form,  378-384. 
meaning  and  et!'ect.  378. 
legal    requirements    of    form,    379. 
is  the  source  of  equitable   doctrines,   380-384, 
of    prop«n'ty,    380. 
penalties   and    forfeitures.    433. 
equity  of  redemption,   382. 
effect  of  a   seal,   379,   383. 
of  merger,  786. 
He   who   seeks   equity   must    do   equity,   385-396. 
meaning  of,   385. 
when   applicable.    386,    387. 

a    general    rule   regulating   administration    of    reliefs,   388. 
applied  to  wife's  equity,    1114. 
equitable  estoppel,  816. 
relief  against   usury,   301,   937. 
special  instances,  392.  393. 
is  the  source  of  certain  equitable  doctrines,  394-396. 
of  election,   461,   465. 
marshaling  securities.  396. 
He  who  comes  into  equity  must  come  with  clean  hands,  397-404. 
meaning  of,  397. 

regulates  tlie  administration  of  reliefs,  397. 
is  based  upon  conscience  and  good  faith.  398. 
limitations  ujion,  399. 

applied   to   specific   performance.   400,   459,    1404. 
fraud;   plaintiff's  claim  tainted  with.  401,  916. 
illegality;    parties  in  pari  delicto,   940,  941. 

parties    not    in    pari    delicto,    942. 
usury;     contract    tainted    with,   sought    to   be   enforced,    937. 
conclusion.   404. 
Equality   is   equity,   40.'i-412. 
general  meaning  of,  405. 
effect    upon    certain    equitable   doctrines.    406-411. 

pro   rata   distribution    and    contribution,    406,   407. 
ownership   in   common,   408. 
joint   liability,.  409. 
settlement  of  insolvent  estates,  410. 
marshaling  of  assets,  410. 
abatement    of  legacies.    1136. 
apportionment   of  lions.    1222. 
appointment   under  trust    powers.    1002. 
Where  there  are  equal   equities  the  first   in   time  shall   prevail,   413-415. 
meaning  of  "equities,"  413. 
application  of,  41.3,  416.  591.  678,  682,  718. 
true  meaning  of.  414.  678. 


1032  INDEX. 

MAXIMS  OF  EQ\:iTY— Continued. 

effect  of  J  415. 
Where   tliere   is   equal   equity   the   law   must   prevail,   416,   417. 

application  of,  416,  591,  678,  682,  741. 

meaning  and  effects  of,  417,  678. 
Equity  aids  the  vigilant,  not  those  who  slumber  on  their  rights,  418,  419. 

meaning  of,  418. 

controls   the   administration   of   remedies^   418. 

application  and  effects  of^  410. 
Equity  imputes  an   intention  to  fulfill  an  obligation,  420-422. 

meaning   and   aj^plication   of,   420. 

is  the  source  of  certain  equitable  doctrines, 
performance    of    covenants^    570. 
trust  resulting  from  acts  of  trustee,   1040. 
Equity  will  not  suffer  a  wrong  without  a  remedy,  42.3,  424. 

meaning  of,  423. 

is  the  source  of  entire  remedial  jurisdiction,  423. 

limitations   on,   63-67,    130,   424. 
Equity   follows   the   law,    42.5-427. 

twofold   meaning   of,   425,   426. 

first,   in   obeying  the  law,   425. 

secondly,   in  ajiplying  legal   rules  to  equitable  estates,   426,   982. 

narrow  operation  of,  425,  427. 
Equity   acts   in  personam,  and   not   in   rem,   428-431. 

origin   and   original    meaning   of,   428. 

in  what  sense  equitable  remedies   o]ierate  in   rem,  429. 

operation  of  equity  on  conscience  of  party,  430,  431. 

MERGER, 

originates  in  maxim.  Equity  looks  at  intent  and  not  at  form,  786, 
of  estates,   787,  788. 

legal  doctrine  and   rules  of,  of  lesser  in  greater  estate,   787. 
equitable    doctrines    and    rules,    788. 
of  charges,   780-800. 

o\vner   of   property   becomes   entitled   to   charge,   790-705. 
intention  prevents,  791. 
time  and  mode  of  intention,  792. 

when   mortgagee  takes   conveyance   of   land,    734,   790,   793. 
when  mortgage  assigned,  790,  793. 

never  prevented  when  fraud  or  wrong  would  result,  794. 
Avhen  life  tenant  becomes  entitled  to  charge,  795. 
owner  of  land  pays  oft"  charge,  796-799. 

owner   in   fee   personally   liable   pays   off   charge,    797,    1205,    1206, 

note,    1213. 
owner  not  pei'sonally  liable   pays   off  charge,   798,    1211. 
life  tenant  pays  off  charge,  799. 
priorities  affected  by,  800. 

MISTAKE, 

early  origin  of  equity  jurisdiction  concerning,  838. 

possible  modes  in  which  remedial  jurisdiction  occasioned  by,  can  be  exer- 
cised, 838. 
definition   of,   839. 

distinction  between   accident  and,  823,   839,   873. 
may  be  of  law  or  of  fact,  840. 


INDEX.  1033 

MI  STAKE— Co  >i  i  in  ucd. 
of  law,  841-851. 

various  conditions  included  in  Ihe  term,  841. 

general  rule  and  limitations,  842. 

when  relief  will  or  will   not   Ik-  grniiicd,  843-851. 

no  relief  when,  as  to  general  rule  of  municipal  law,  841,  842,  849. 

nor  when,  as  to  legal  import  and  effect  of  a  transaction,  843. 

relief  from,   of   law   may  be  granted,   842,   844. 

no  relief  if  agreement  was  as  intended  to  be,  843,  84.'j. 

when  written  instrument  does  not  express  intention,  84.^),  870. 

when   common   to   all    parties,    846. 

attempted  distinction  between,  of  plain  and  doubtful  rules  of  law, 

846. 
when   accomiianied   with   inequitable   conduct   of   other   party,    842, 

847. 
when  occurs  in  transaction  between  parties  in  trust  relations,  848. 
relief  when,  as  to  existing  legal  rights,  interests,  or  relations,  849. 
compromises   and   voluntary    settlements    made   under,   as   to   legal 

rights,  when  relieved  against,  850,   871. 
money  jiaid  under,  cannot  be  recovered  back,  851. 
of  fact,  852-856.  • 

how^  may  occur:    subject-matter;  terms,  853. 
in  what  may  consist,  854. 

in  compromises  of  doubtful   claims,  850,  85.5,  871. 
in   speculative   contracts,    855. 
requisites   to   relief   from,   856. 
must   be   material,   856,   860. 
must  be  free  from  culpable  negligence,  856. 
how   shown,  when  by  parol   evidence,   857-867.      See  Evidence. 
instances  of  equitable  jurisdiction  occasioned  by,  868-871. 
by  way  of  defense,  860. 
by    way    of    afHrmative    relief,    860-871. 

money  paid  or  chattels  delivered  by.  869. 

cancellation  and  reformation  when  appropriate  for,  870,  1376,  1377. 

conditions  of  fact  which  are  occasions  of  affirmative  relief,  871. 

MORTGAGES  OF  LAND, 

under  the  English  doctrine,  1179-1185. 

at  the  CDiimion   law^    1179,   1182. 
origin    and    development    of    equity    jurisdiction    over,    1180. 

equitable   theory    of,    1180-1182. 

double  system  of,  at  law  and  in  equity,   1182. 

legal   and   equitable   remedies   of  parties,    1183. 

the  two  theories  kept  distinct,   1184. 
subsequent  equitable,   1185. 
under  the  American  doctrine,    1186-1191. 

where  both   legal   and  equitable  theories   adopted,   1187. 

where  equitable  theory   alone  adopted,   74,    16.3,    1188-1190. 

consequences  of  mortgagee's  obtaining  possession,   1189,   1190,   1215. 
equitable  remedies  of  the  jiarties,   1188,   1190. 
in  e<|uity  are  securities  for  debts,    1192. 
once  a  mortgage  always  a  mortgage,  1193. 


1034  INDEX. 

MORTGAGES  OF  "LA^D—Continutd. 

mortgagor  cannot,   in   instrument,  deprive  liimsclf  of  rights  of  redemption. 

382,   1193. 
stii)ulations  in,  giving  mortgagees  advantage,  invalid,  1193,  note, 
conveyances  with  agreements  to  repurchase  distinguished  from,    1194,    1195. 
continued    existence    of    debt    the    criterion..    1192,    1195. 
conveyances   absolute   in    form   as^    119ti. 
to    secure    future    advances,    1197-1199. 

validity    of,    as    between    the    parties.    1197. 

validity  of,   as   against   subsequent   encumbrancers   or   purcha.sers,    1198, 
1199. 

i-ecording   acts   as   afl'ecting,    1199. 
to  secure  several   different   notes   or  bonds,   1200-1203. 
order  of  priority  among  assignees  of  notes,  1201. 
assignment  of  note  is  assignment  pro  tanto  of  mortgage,   1202. 
foreclosure  and   redemption   in   case  of,    1202. 
priority    wliere    mortgagee   retains    part    of   notes,    1203. 
conveyance  by   mortgagor  subject   to,  eHVct  of,   1205-1208.     See  Mortgagor 

ANo  Mortgagee. 
assignment  of,  by  mortgagee,   1209.   1210. 

assignment   of    debt   carries,    with    it,    1210. 
subject  to  equities,  704,  733,  734,  753,  note,   1210,  note, 
equitable   assignment   by   subrogation    on    payment   of   mortgage   debt,    798, 
1211-1214,    1221. 

in    whose    favor    e.vists,    798,    1211-1213. 

See.  jNIerger. 
actual  assignment  when  compelled  by  equitable  assignee,   1214. 
rights  and  liabilities  of  mortgagee  in  possession,  1215-1218.     See  Mortgagor 

AND  Mortgagee. 
redemption   of,    1219-1220.      See   Eedejii'TIOX. 
foreclosure   of,    1227,    1228. 

equitable  liens  created  by  agreements  to  give.   1237. 
by    informal   and   defective,    383,    1237. 

See  Mortgagor  and  Mortgagee. 

MORTGAGES   OF  PERSONAL  PROPERTY, 
at  law  are  conditional  sales,  164,   1229. 
jurisdiction  and  remedies  of  equity  concerning,  1230. 
statutory  changes  concerning,  164,   1232. 
embracing  future-acquired  property  are  equitable  liens,   1236.  note.   1291. 

MORTGAGOR  AND  :\10RTGAGEE, 

interest  of  mortgagee,  in  equity,  liable  to  he  sold  on  execution,   1204. 

of  mortgagee  liable  to  be  reached  by  creditors,   1204. 
fiduciary    relati<m    does    not    exist    between,    1204. 
conveyance  by  mortgagor,  effect  of,   1205-1208. 

grantee  with  notice  takes  subject  to  mortgage.  1205.  1225. 
liabilities    of   grantee   assuming   mortgage,    in    whole    or    in    part.    1206, 
1207.    1225. 
rights  and  lialiilities  of,  in  assignment  of  mortgage.   1209-1214.     .See  Mort- 
gages. 
rights  and  liabilities  of  mortgagee  in   possession,   121.5-1218. 

chargeable  with  rents  and  profits  or  occupation  value,   1210. 
repairs   and   disbursements,   for   what   allowed    and   credited,    1217. 
liability  to  account;   rules  concerning,  1190,  1218. 


INDEX.  1035 

MULTIPLICITY    OF    SUITS, 

jurisdiction   of   equity   to   prevent,   243-275. 

ca^cs   to  wl'icli   doftrino  of,   may   a])i)lv,   classified,  245. 
"bills   of   peafc,"'   rationale   and   examples   of,   24G-248.      See   Blixs   OF 
Tkace. 

bills  "to  quiet  title,"  explained,  248. 
examples  of  early  use  of,  247. 
ratioiuile  of  doctrine  of,  on  jnMnciple,  249-25L 

not  an  independent  source  of  etjuity  jurisdiction,  250. 
what  multiplicity  prevented;  pviblic  rights  and  injuries,  25L 
jurisdiction  not  exercised  vlien  that  would  be  ineffectual;   simplifying 

(if  the  issues  essential,  264,  note, 
there  must  be  a  practical  necessity  for  the  exercise  of  the  jurisdiction, 

2ti4.  note. 
examination  of  doctrine  on  authority.  252-2GL 

first  class:  where  plaintiff  at  law  obliged  to  bring  number  of  similar 

actions  against  same  wrong-doer,  252,  263,  267. 
second  class:  where  one  defendant  brings  successive  or  simultaneous 

similar  actions  against  a  plaintiff,  253,  254,  263,  267. 
third  and  fourth  classes:   numerous  plaintiffs  and  defendants,  255- 
26L    264-26(>,    268-270. 

privity  or  common  interest  between  parties  whether  necessary, 

251,  255-261,  264-270. 
distinct  proprietors  injured  by  one  wrong,  257,  264,  268,  269. 
distinct    proprietors    relieved    from    illegal    taxes,    assessments, 
and  iHiblic  burdens,  258-260,  261,  note,  265,   266,  270,  273, 
1345. 
miscellaneous  instances,  261. 
title,  whether  and  how  to  be  established  at  law,  252,  253,  250,  263, 

267. 
who   may   be   plaintiffs   and   who   defendants,   251,   267.   269. 
summary  of   conclusions,   267-270. 

X. 

NON  COMPOTES  MENTIS, 

jurisdiction  of, equity  over  persons  and  property  of  persons,  1311-1314. 
origin   of  the  jurisdiction,    1311. 
jurisdiction     in     the    United    States,     1313. 
in   cases  of  weak   and  luisound   mind,    1314. 

XOTICE. 

maxim.   When   there  are  equal   ecpiities  the  first    in   lime  shall    prevail,  ap- 
1)1  ied  to,   416,  591. 

When  there  is  equal   equity  the  law  must   prevail,  apj)lied  to,  416.  591. 
im))nrtance   of  doctrine  of,   in   determining  when   equities   are  equal,   591, 
general  rule  as  regards  one  purchasing  with,  591. 
whether  entire  doctrine  of,  based  ujuni   fraud.  591,  665. 
knowledge  and.  distinguished.  592. 
kinds   of,   actual    and   constructive.    .")93. 
definition   of,   594. 
actual,  595-603. 

when    shown    by    indirect    evidence,    596. 

vague  rumors,  hearsay  statements^  whether  constitute.  597,  602. 


1036  INDEX. 

'NOTICE—Contimied. 

information    sufficient    to    i)ut    prudent    man    on    inquirs'    constitutes, 

597. 
kind  and  amount  of  information  necessary  to  constitute,  599. 
what    circumstances    sufficient    to    constitute;     relationsliip,    intimacy, 

inadequacy,   defective   recording,   etc.j   600. 
by   extraneous   facts,   600^   GIO. 

effect  of  explaining  or  contradicting  information  given,  599,  601. 
information  by  whom  may  be  given.  599^  602. 
wlien    must   be   given   and    received,    602. 
constiaictive,  604-676. 
what  is,  593,  604. 

presumption   when   rebuttable,   596^   note,   606,   607. 
presumption,   wlien   conclusive,   596,   note,   606,   608. 

by   extraneous   facts^   generally   acts    of   fraud,    negligence,   or   mistake, 
610-613. 

visible  objects   and  stiiictures.   constituting,   611. 
absence  or  non-jiroducfion  of  title  deeds,  constituting,   606.  012. 
information  of  other  facts,  although  perfect  record  title,  613,  659- 
665. 
by  possession  or  tenancy,  614-625. 

general    rules   as   to.   tu   purchasers   and   encumbrancers,    614.    615. 
by  lessee  whetlier.   of  subsequent  and  collateral   agreement.   616. 
possession  whether,  of  different  title,  where  a  title  recorded,  616. 
grantor   remaining  in  possession  whether,   617. 
tenant's  possession   whether,   of  lessor's  title,   618. 
when  actual,  oj)en,  exclusive  occupancy,  615,  620. 
time  of  possession^  622. 
presumption   is   rebuttable,   624. 
by  recital  or  reference  in  instruments  of  title.  626-631. 
general   rule  as  to  recitals  or  references,  626. 
presumption   conclusive,   627. 
extent   of,   628-631. 
by   lis   pendens,   632-640. 

rationale   of   doctrine,   632. 
general  rule,  633. 

begins  witli  service  of  subpoena  or  other  process,  634. 
how  long  continues  and  when  ends,  634. 

suit  must  be  pi'osecuted  in  good  faith  and  with  diligence,  634. 
what  allegations  in  pleadings  necessary,  634. 
rules    should    apply   to    counterclaims    and    cross-complaints   under 

reformed   procedure,   634. 
rule  extends  to  suits  concerning  land,  635. 

how  far  extends  to  suits  concerning  personal   property,  636. 
who   are   affected  by,   637,   63S. 

prior  right  acquired  before  commencement  of  suit,  637. 
purchaser  from  either  litigant  party.  638. 
not   favored    by   courts   of   equity,    639. 
statutory  notice  of   lis  pendens,   639,   640. 
by    judgments,    641—643. 

by   registration    or   recording   of    instruments,    644-665. 
statutory  system   in   England,   645. 
in    the    United    States,    646. 


INDEX.  1037 

iiOTlCE—Continved. 

tlieory,  scope,  and  object  of  legislation,  649. 
requisites  of  record  in  order  to  be  notice,  650-054. 

instrument  must  be  of  kind  of  which  recording  authorized,  651. 
must  be  duly  e.xecuted  and  acknowledged,  052. 
record  must  be  made  in  proper  form  and  manner.  053. 
record  nuist   be  true  copy,   054. 
premises   how  must  be  described,   054. 
extent  to  wliich  record  is  notice,  055. 
to  whom  record  is  notice,  056-058. 
not  to  prior  parties,  057. 

to   subsequent  purchasers   under  same   grantor,   050,   058,   761. 
record  of  instruments  made  by  vendor  prior  to  vendor's  record, 
058. 
effect  of  other  kind  of  notice  in  absence  of  record,  01.3.  059-065. 
kinds  of  notice  sufficient  to  produce  effect.  001-005. 

whether  actual  or  constructive,  001. 
rationale  of  notice  in  i)lace  of  record,  005. 
between   principal    and    agent,    600-070. 
V  general  rule  that  notice  to  agent  is  constnictive  notice  to  principal, 

.:;  660. 

.-t  rule   embraces   all   who   act   for  others   in   business   relations,    067. 

notice  must  be  within  scope  of  agent's   authority.   068. 
notice  to  agent  may  be  actual   or  constructive,   669. 
notice   must   be   given    agent    during   actual   employment,    670. 

must  be  given  in  same  transaction  souglit  to  be  affected.  671, 

672. 
when  may  be  given  in  prior  transaction.  672. 
information  must  be  material  and  such  as  agent  is  boimd  to  com- 
municate, 673. 
presumption  of  communication  to  principal,   669,   073. 
is   generally   conclusive,   009,   073. 
when   not  conclusive;    agent's   fraud,   075. 
rule  is  based  upon  policy  and  expediency,  006,  676. 

NUISANCES, 

public,  when   restrained,    1349. 
private,  wlien  restrained,   1350. 

interlocutory  injunction;  balance  of  injuiy;  laches  and  estoppel,  1350a. 
form  of  decree:   complete  relief,  etc.,   1350b, 
violating  easements,  restrained:   ancient  lights;   excavations;   polluting  and 

diverting  streams,  etc.,  1351. 
mandatory  injunctions,  when  granted,  in  case  of,   1359. 

P. 

PARTITION   OF   LAND, 

common-law    remedy;    extent    and    insufficiency,    1380. 

early   origin   and   extent   of   equitable   jurisdiction,    1387. 

complainant  must  show  title  in  himself,   1386^   1388. 

accounting  in,  where  joint  owner  or  owner  in  common  receives  more  than 

share  of  profits,   1389. 
reimbursement  in.  for  expenditures  by  one  of  parties,  393,  note,  1240,  note, 

1389 


1038  INDEX. 

TARTITION  OF  LA^B—Coiitiuurd. 

inconvenience  or  ilifRculty   in,  no  jiround   for  refusinji  relief,    1389. 

effected    by   mutual   conveyances;  "owelty"    of    partition,    1389. 

by    means   of   sale;    consent,  13'J0. 

PARTITION  OF  PERSONAL   PROPERTY, 

jurisdiction    of   equity   to   decree,   or   sale,    1391. 
title   tried   by  equity  where  disputed  in,  1392. 

PENALTIES, 

when   relieved   against;    general   doctrine,  433. 
form   of  relief  against,  434. 
what   are,   435,   430,   441. 

stipulations  to  secure  payment  of  money  alone.  433,  436,  441. 
stipulations  not,  437-445. 

when   in   the   alternative,   437. 

for  reduction  of  existing  debt  upon  prompt  payment,  438. 
for    acceleration    of    jiayment    of    existing    debt,    439. 
for  linuidated   damages,   440-445. 

rules    determining    liquidated    damages    and,    441-445. 

larger  sums  securing  payment  of  smaller  are,  433,  430,  441. 
agreements  for  performance  of  single  a<:'t,  Avhere  damages  not 

easily    ascertainable,    442,    445. 
agreements  for  iierformance  of  several  acts  each,  443,  445. 
party    liable    in    same    amount,    whether    partial    or    complete 

default,   444. 
agreements  for  performance  of  one  of  several  acts,  where  dam- 
ages not  easily  ascertainable,  445. 
specific  jierformance  cannot  be  resisted  by  payment  of,  446. 

not  decreed  where  sum  to  l)e  paid  is  liijuidated  damages,  447. 
See  FoRFEiTrREs. 

PERFORMANCE, 

definition  of,  579. 

two   classes   of   cases   involving   doctrine  of,   579. 
presumption  of,  by  trustees  pxirchasing  with  trust  funds,  1049. 
enforcing  agreements  partly  performed,  founded  on  meritorious  or  imperfect 
consideration,    588-590. 

what   is   meritorious   or   imj^erfect   consideration,    58S. 

agreements  against  and   in  favor  of  whom  enforceable,  588. 

surrender  of  copyholds  against   beir  supplied,  588. 

defective  execution  of  powei's  wlien  aided,  58!*,  590,  834,  835. 

PERPETUATION   OF   TESTIMONY, 

suits   for,   branch    of   auxiliary   jurisdiction   of   equity,    14*2,    190. 
nature  and  object  of,  210,  211. 
practical  abolition  of,  142,  210. 
wlu'ii    aiid    by   whom    maintainable,    211^    213. 

PLEIXJES, 

jurisdiction  and  remedies  of  equity  concerning.  1231. 

PRINCIPLES  OF  EQUITY,  300.  303-431.     See  Maxims  of  Eqx'ity. 


1ND.EX.  1039 

PRIORITIES, 

dependence  of  doctrine  of,   on  maxim.   Where  there  are  equal    oqiiilics   tin; 
first  in  time  shall  prevail,  416,   591,  678,  682,   718. 

on  maxim,  \\here  there  is  equal  equity  the  law  must  ])rcvail,  41(),  oOl, 
678,  682,  741. 
estates  and  interests  to  which  doctvine  of,  applies,  (i7!)-t)S]. 
does  not  apply  to  legal  estates,  67!),  735. 

modification    by    statutes    concerning     fraudulent    conveyances    and 
recording,    680. 
applies  to  equitable  estates  and  interests  alone,  681,   735. 
principles  embodying  doctrine  of,   in  general,   682. 
superior  and  equal  equities,  683-692. 

superior  equities  defined  and  described,  684-692. 

nature  of  the  equities,   685. 

superior  equities   by   reason   of   fraud..   686,   716,   731,   732. 

of   negligence.    687,    716,    731,    7.32. 
effects  of  notice  on  equities,  688-692. 

notice   of  trust,   contract,   or   lien,   688. 

of  a  prior  covenant,  689,  692,  1295.     See  Covex.\xts. 
what  is  notice,  591-676.     See  Notice. 
time  of  the  notice^  691. 
of  what  notice  must  consist,  692. 
in    assignments    of    things    in    action,    693-715. 

notice  by  assignee  to  debtor,  holder,  or  trustee  to  establish,  694-697. 
necessary  in  England  and  certain  states  as  against  subsequent  as- 
signees, 695^   713,   989,    1279. 
extent  of  rule;  does  not  apply  to  assignments  of  equitable  interests 
in   land,    697,    713. 
diligence  of  assignee  in  perfecting  title  and  enforcing  rights  necessary, 
698-702. 

questions   in   connection   with    assignmejit   of   shares  of  stock,   ()99- 
701. 
•as  between  assignee  and  assignor,  or  the  com])any.  699. 
between    assignee's    and   assignor's    judgment   creditors,    700. 
between    prior    and    subsequent    assignees,    701,    712,    713. 
prom])t   notice  to   debtor  necessary   to   prevent    subsequent    acts   by 
him,    702. 
assignni'Mits   of  things   in   action   subject   to   equitie*.   703-715. 
equities    in    favor    of   debtor    part}-,    704. 

equities  between   successive  assignors  and  assignees,   707-713. 
assignment,  siibject  to  latent   equities,   708,   709. 
effect  of  estoppel  on  ajiplication  of  rule.  710,   711. 
subsequent    assignee   obtaining   legal    title   protected,    701.    712. 

713. 
successive  assignments  by  same  assignor  to  difi'erent  assignees, 
713. 
equities  in  favor  of  third  person,  714.  715. 
among   ecpiitable   estates,   mortgages,    liens,    and   other    intei-ests,    710-732. 
doctrine  of,  greatly  modified   by  recording  acts,  717. 
priority    of    time    among    equal    equities.    718.    719. 

sinniltaneous  mortgages:  substituted   liens,  etc.,  719. 
one   equity    intrinsicully    the    superior.    720-726. 

sub-eqiiciil     specific    superior    to    prior    general    lien.    685,    720. 


1040  INDEX. 

PRIORITl  ES—Con  tin  iicd. 

prior  unrecorded  mortgage  or  lien  superior  to  subsequent  docketed 
judgment.   71!),,   721,   722. 

where    judgment    creditor    liad    notice,    723. 
prior  unrecorded  mortgage  and  purchase  at  execution  under  subse- 
quent judgment,  724. 
purcliase-monej'  moilgages.   725. 

subsequent  lion  superior  by  reason  of  fraud  in  prior,  726. 
assignee  having  priority  where  fixed  by  agreement,  726. 
subsequent    equity   protected   by    legal    title,    727-729. 

where   legal   estate   is   obtained   from    trustee,   728,   729,    770. 
legal  estate  obtained  after  notice  of  prior  equity.  729. 
notice  of  existing  eqiiities,  727.   730. 
effect  of  fraud  or  negligence  upon.  716.  727.  731.  732. 
assignments  of  mortgages;    rights  of,  depending  upon,  733,  734. 
rights   of  assignee   on   unrecorded   assignment,   734. 

Q 

QUIETING    TITLE, 

statutorv'    suit    for,    1396,    1397. 

R 

RECEIVERS, 

equitable  remedy  is  ancillary-  and  provisional,  1319. 

who  are,   1330. 

api)ointment  of,  discretionary.   1331. 

cases   in  which,   may  be  appointed,   1330,   1332-1335. 

where   no   person   competent  to   hold   property   during   litigation.    1330, 
1332. 

infants',   lunatics',   and   decedents'   estates.    1332. 
litigants  equally  entitled  to  pro])erty.  but  unjust  that  either  should  re- 
tain  control.    1330,    1333. 

suits  between  partners.   1333. 
partition  between  co-owners,   1333. 
suits  between  conflicting  claimants  to  land,   1333. 
suits    against    persons    in    position    of   trust    or    quasi    trust,    misusing 
property,    1330^   1334. 
instances,  1334. 

in    mortgage    foreclosure.    1334.    note, 
receivers  of  corporations.   1334,   note, 
after  judgment  to  carry  decree  into  effect,  1330,  1335. 

creditors'  suits;   enforcing  liens  and  contracts  of  married  women; 
winding  up   corporations,   1335. 
appoi)itment    during    litigation    does    not    determine    any    right    or   title   of 

parties,   1336. 
are  quasi  trustees.  1336. 

poweis,  rights,  duties,  and  liabilities  of,    1336. 
who  may  be  appointed,  and  effect  of  appointment,  1336,  note, 
notice,  possession,  suits  by  and  against,  management  of  the  property,  pay- 
ment of  claims,  compensation,  etc.,  1336,  note. 

EEDEIMPTIOX, 

meaning  of,  1219. 


INDEX.  1041 

REDEMPTION— Co«/r«Me(Z. 

requisites  of  maintaining  suit  for,   1219. 

suit  for,   wluii    maintainable  by  persons   other  than  mortgagor,    1220. 
contribution   and   exoneration^   rights  of.,   on,   1221-1226. 
where  equities  are  equal,  contribution   pro  rata,   1222. 
where  equities  are  xmequal,    1223-1225. 

between  tenants  for  life  or  years,  and  remaindermen  or  reversion- 
ers.  1223. 

mortgagor  and  grantee  by  warranty  deed  of  parcel,  1224. 
successive  grantees  by  warranty  deeds;  inverse  order  of  aliena- 
tion, 1224. 
circumstances  disturbing  equities  and  defeating  rule,  1225. 
mortgagee,   after   notice,   cannot   disturb   equities   by   release   or   agree- 
ment,   122G. 

KEFORMATION, 

re-execution   of  instruments  virtually  included   in,    1375,   note^    1376.  note. 
when  granted,  845-871,  1376.     See  Mistake. 

no  reformation   in  favor  of  a  volunteer,   1376,  note. 

reformation  of  married   woman's  deed,    1376,   note. 

REFORIMED    PROCEDX'RE, 

as  changing  the   relations   of  equity  to   law,   35.3-357. 

distinction  between  actions  at  law  and  suits  in  equity  abolished  by,  40, 
354. 

in  wliat  states,  40^  note, 
deals  with  the  procedure  alone.  354. 

jurisdiction  of  equity  in  granting  remedies,  how  aflfected  by,  355,  357. 
what  equitable  interests  aflected  by,  356. 

BEMEDIES, 

definition   of,   00. 

remedial   rights   and   duties,   definitions  of,   00. 

equity   contains   rules   creating   jii'iiU'Tiy   duties   and   rights,   and   conferring 
remedial   rights  and^   06-116. 

equitable    primary    rights,    08-107.      See    Rights. 
equitable,  generally;    kinds  and   classes  of,   108-117. 

diflerent  from  legal,  although  some  legal  in  their  nature,   101,   108. 
derivation  of  many  from  primary  rights,   108,  111. 
character   and   number   of   legal   and,    100,    175. 
flexible  and  exjiansive  nature  of,   100,  420. 
mode    of    administering,     1 1.3-1  l(i. 

common-law  rules  as  to  parties  and  judgments,  113. 

equitable   rules,    114,    115. 
how   far   legal    and    equital)le,    can    be   combined,    116. 
specific  character  of,  420. 
unlimited   variety   of.    111. 
classes  of,  1316. 
inadequacy  of   legal,   how   far  a   test   of   equity  jurisdiction.  132.  133,  424. 
is  the  grovmd  of  concurrent  jurisdiction,   130,  173,  176.   ISO. 
is  the  occasion   only  of  exclusive  jurisdiction,   137,   138,    130,  note.    173. 
on  what  branch  of  exclusive  jurisdiction  principle  of.  operates.  210-221. 
summary  of  equity  jurisdiction  as  affected  by,  222. 
66  '  " 


1042  INDEX. 

REMEDIES— Con  fitnicd. 

as  affecting  jurisdiction  of  United  States  courts,  295-297,  914. 

See  IXTERPLEAUER;    RECEIVERS;    INJUNCTIONS;    SPECIFIC  PERFORMANCE;   CAN- 
CELLATION;   Accounting,    etc. 

EIGHTS, 

priniaiy  duties  and.,  what  are.  90. 

remedial   duties   and,   what  are,   90. 

divisions    of    primary:      1.     Those    concernine:    personal    status:      2.     Tliose 

concerning  things,   92. 
classes    of,    concerned    with    things;    real    and    personal:    descriptions,    93. 
real;    genera   embraced   in.   94. 
personal ;    genera    embraced.   9.5. 
equity   contains   rules   creating   priiuary   duties   and,   and    conferring   reme- 
dies  and    remedial,    90-117. 

equitable  primary,   kinds   and   classes   of,   98-107. 
with    what    i)rimary,    equity    deals.    98-100. 

are  different   from    or   addtional   to  those  existing  at  law^   48,   50, 
51,   101. 
equitable   remedial,    kinds   and    classes   of,    108-117.      See   Remedies. 

S. 
SATISFACTION, 

definition   of,   521. 

of  debts  by  legacies,  527-543. 

legacy   by   debtor   to   creditor,    527-540. 
presumption   arises   of,    527. 

what  prevents  presumption,  528-538. 

payable  at  different   time  from   debt,   530. 
of   different  nature^   or  for  different  interest,   532. 
legacy  in  i^ursuance  of  agreement  or  express  payment,  538. 
debt  owing  to  a  child  or  wife,  539. 
legacy   by    creditor   to    debtor,    541. 
how  enforced,   543. 
of  legacies  by   subsequent  legacies,   544-552. 

same  specific  thing  given  by  same  or  different   instiiiments,   545. 
legacies    of    quantity   given    by    different    instruments,    540-548. 
second   legacy   regarded    as   cumulative,   546. 
presumption    overcome   bj'   langiuige   of  testator,    548. 
legacies   of  quantity   by   same   instnunent,   of   equal    amoxnit,   549. 
by  same  instrument  of  une(pial   amounts,  550. 
of   legacies   by    portions   and   advancements,    553-564. 
h(w    the    cases    arise,    553. 

pr('sum])tion    of,    where    legacy    given    and    afterwai'ds    portion    or    ad- 
vancement, 554. 
subsequent    payment    less    than    legacy,    wliether    complete,    555. 
presumption    applies    to    persons    in    loco    parentis,    554,    55(). 
leaning   of   equity   in    favor   of   presumption,    557. 

whei'e   the   legacy    is    of    uncertain    amount,    558. 
where  jjayment    is    made  to   husband   of    female   legatee,   55^. 
payment  made  to  child  Itefore  execution   of  \\ill,   560. 
whether   twf>   gifts   should    be   ejusdem   generis,    560. 
effect  of  a  codicil  after  portion  or  advancement  made,   561.  .  ' 


INDEX.  10-13 

SATISFACTION— Continued. 

when    parties   are   strangers,    5G2. 
when   not  presumed   but    expressed,    564. 
of  portions  by  subsequent  legacies  or  other  similar  provisions,  505-568. 
presumption    of.    arises,    565. 
beneficiary  has  an  election,  568. 

SPECIFIC   PERFORMANCE. 

ground  of  jurisdiction  to  grant  remedy  of:  inadequacy  and  impracticability 
of  legal  remedies,   1401. 

award   of  damages  not  as  beneficial   as,   1401,  note, 
extent   of   jurisdiction,    1402.    1403. 
inadequacy    of    damages,    1402. 

in   contracts    concerning   land,    1402. 

to  make  a   will    of  land,    1402^    note. 

in   favor  of  vendor,    1402,   note. 

concerning  chattels   and   things   in   action,   1402. 

rare  chattels,  and  those  of  peculiar  value.   1402. 
other  grounds  for  relief,   1402.  note, 
assignments    of    debts,    1402,   note, 
patents,  1402,  note, 
awards   when   specifically   enforced,    1402. 
special  contracts  where  legal  remedy  inadequate,   1402. 
no  relief  when  decree  would  be  nugatory,   1402a. 
refused  when  court  cannot  render  or  enforce  a  decree,  1402b. 
arbitration    agreements,    1402c. 
contracts  for  personal  services,    1402d. 

for   building   and    construction,    1402e. 
other  contracts   requiring  continuous  acts,   1402f. 
impracticability   of   legal    remedies,    1403. 
jurisdiction  to  grant,   discretionary,    1404. 
essential    elements    and    incidents   for,  1405. 
valuable  consideration,  1203,  1405. 

cei-tainty  as  to  subject-matter,  stipulations,  parties,  etc.,   1405. 
mutuality    in    obligation   and   remedy,    1405,   and   note, 
free    from    mistake,    misrepresentations,    fraud,    or    illegality.    1405. 
parol  evidence  to  show  mistake,  fraud,  or  surprise,  860-867. 
mistake   a   defense  to   suit   for,   860,   868. 
misrepresentations   a    defense   to   suit    for^    889,    899. 
fraudulent   c(jncealnients   a   defense,   905. 
mere  inadequacy  not  ground   for  refusing,   926. 
gross   inadequacy    may   defeat,    927.    note.    1405,   note, 
of   contracts   in   restraint   of   tra(h\    934. 
usury   a    defense,    937. 

not   decreed   of  gaming   contracts.    938.    940. 
not  decreed  where  parties  in  pari  delicto.  929.   940. 
persons  non  compotes  mentis,   \\eak   minded,   intoxicated,  etc.,  946— 
949. 
fairness,   equality,   and    justiu'ss    in    lerms    and    circumstances,    1405. 
harshness  and  oppressiveness  resulting  from,   1405. 
vendor's  title   must   be  free  from   reasonable   doubt,    1405. 
capacity  and  ability  of  defendant  to  obey  decree,   1405. 
rights    under    the    contract;    purchaser    entitled    to    benefits    and    assumes 
risks   of   ownership.   368,    1406. 


1044  INDEX. 

SPECIFIC  PERFORMANCE— Continued. 

I)ertorniance   by  plaintiff  a  condition   precedent,   1407. 

failure   of   title,    1407. 

necessity  of  tender  and  demand  of  performance,  1407. 
time  as   affecting   riglit  to,   1408. 

stipulations  concerning  time  generally  treated  as  formal,  1408. 

time    may    he    essential;    intention,    1408. 

effect   of   forfeiture   clause    in    contract..    1408,   note. 

time   generally    material,    delay    as    defeating,    1408. 
of  verbal  contracts  part  performed,   1297,   1409. 

ground  of  remedy   is   equitable  fraud,   1409. 

acts  Avhicli  do  and  do  not  constitute  part  performance,   1409a-d. 

possessio'n,  imj^rovements^   1409a. 

payment,   1409b. 

oral  promise  to  give,  1409c. 

marriage  not  part  performance,  1409d. 
partial  performance  with  compensation,  1409f. 
damages  in  place  of,  237,   1410. 
of   obligations    arising   from   trusts    and    fiduciary    relations,    1411,    1412. 

nature  and  object  of  suits,   1411. 

suits  against  corporations  to  compel  transfer  or  issue  of  stock,  1412. 

SUBROGATION, 

nature  of  remedy  of,   1419. 

equitable   assignment   of    mortgages   by,    1211-1213. 

T. 

TESTIMONY   DE    BENE   ESSE, 

suits  for  taking,  branch  of  auxiliaiy  jurisdiction  of  equity,   142,   190. 
nature  and  object  of,  210. 
practical    abolition    of,    142,   210. 
when   and  by  whom  maintainable,   213. 
mode  of  using  depositions,  213. 
examination  of  witnesses  in  foreign  countries  branch  of,  214. 

TRUSTS, 

theory   of,   borrowed   from   Roman   law,   iidci-commissum.   97(),   977. 
uses,  origin,  growtli,  and  general  description  of,  1.51,  978-98.5.     See  Uses. 
are  based  on  statute  of  uses,  984,  98G. 

effect  of  attempt  to  create  jiassive,  in  states  abolishing     jiassive,  98G,  note, 
1004. 

attempt  to  create  active,  not  allowed  by  statute,  980,  note,   1004,  note, 
wliat  property  may  be  the  subject  of,   151,   987. 
wlio  may  imjiress  property  Avith.  987. 
what  trusts   equity   will   enforce,    987. 
trustors  not  relieved  where,  illegal  or  fraudulent,  987. 
void,  if  forbidden  by  statute,  or  law  of  perpetuities.  987. 
divided  into  express^  and  arising  by  operation  of  law,  987. 
express,  divided  into   private  and  public,   987. 
private,   divided   into  i>assive  and  active,   988. 
passive,   988-990. 

estates  of  Irustce  and   cestui   que  triist   in,   153,   988,  989. 
"spendthrift   trusts,"    989,    note. 


INDEX.  1044 

TRUSTS— Co  n  tinued. 

rules  of  descent  and  succession  generally  applied  to,  990. 
active,  991-9y.>. 

common  classes  of,  992. 

assignments   for   benefit   of   creditors,   as   a   class   of,   993,   994. 
deeds  of  trust  to  secure  debts^  995. 
voluntary,  when  binding  and  enforceable,  990-999. 
,      executory    and    incomplete,   not    enforceable,    997. 

application  of  doctrine  of;   donor  the  legal  owner,  !)98. 
donor    the    equitable    owner,    999. 
executed  and  executor^',   1000,   1001. 

powers   in  trust;   what  are^  and   control   of  equity  over.  835,    1002. 
express,    how    created^    1006-1017. 

in   real   property ;    writing  necessary  by  statute  of   frauds,    1006. 
character    of   the    writing   requisite,    lOOli,    1007. 
when  and  by   Avhom   writing  executed*  1006,    1007. 
in    personal    property,    may    be   created   verbally,    1008. 
words  and  disposition  sufficient  to  create,   1009. 
may  be  inferred  by  construction,   1009,   1010-1017. 
inferred  from  powers  given  trustees,   1011. 
from    provisions    for    maintenance^    1012. 
when  necessary  to   carry  out   purposes   of   wills,    1013. 
from  i^recatoiy   words,    1014-1017. 

tendency   against   doctrine,    1015,    1017. 
what   intention   necessary,    1014,    1016. 
objections  to  doctrine  of,   1017. 
public   or   charitable,    1018-1029. 

general   description   of^    987,    1018. 
public,   not   private,    benefaction    requisite,    1019. 
what   are  charitable   uses,    1019,   note,    1020-1024. 
"statute  of  charitable  uses,"   1020. 

religious    purposes;    "superstitious"    uses,    1019,    note,    1021. 
benevolent  purposes,   1022. 
educatiomil    purposes,    1019,   note,    1023. 
miscellaneous    public    purposes,    1019,    note,    1024. 
certainty   or   uncertainty   of   object   and   beneficiaries,   987,    1018,    1019, 
1025,    1027. 

of  tiie  trustee^   1026. 
cy-pres,   meaning  and   extent   of   doctrine   of,    1027,    1029. 
origin    and    extent    of    equity    jurisdiction    over,    statute    of    Elizabeth, 

1020,  1028. 
in   the    Inited    States,    1029. 
implied,  or  arising  by  operation  of  law,   1030-1058. 
general   nature   and    kinds   of,  1030. 
resulting,    1031-1043. 

trust    resulting   to    donor,    1032-103fi. 

in   failure   of   purposes;    uncertainty;    illegalit}^    1032,    1033. 
when   part  only  of  estate,   or   equitable  title  only   conveyed,   981, 

1034. 
in   convejance    without   consideration,    981,    1035. 
parol    evidence  to  show,    1036. 
in   conveyance  to   one,   price   i)aid   by   another,    1037-1042. 

where  title  is  taken   in   names   of  some  of  grantees  only,    1038. 


1046  •     INDEX. 

TRl]i^T8— Continued. 

part  of  consideration  only  paid,   1038. 
doctrine   applies   to   personal   and   real    property,    1038. 
purchase   made   in   name   of   wife   or   child^    103!1. 
parol  evidence  to  show,   1040,   1041. 
interest  and  rights  of  beneficiary  in,  369,  375,  1030,  1043. 
constructive,    1044-1058. 

number  of  instances  ofj    1045. 

arising  from  contract  express  or  implied,    104G. 

money    received    equitably    belonging'    to    another,    1047. 

property    subject    to,    acquired    by    vohmteers    or    purchasers    with 

notice.   630,    688,    692,    770,    920,    1048. 
right  to  follow  funds  that  have  been  mingled,   1048.  note, 
fiduciary   persons   purchasing  property   with   trust   funds,   920,   958, 

1049.    1058. 
renewal  of  leases  by  partners  and  other  fiduciary  persons,   1050. 
wrongful   ajjpropriation   or  conversion  of   another's   property.    1051. 
trust   property    wrongfully    acquired    by   trustee   or   other   fiduciary 

person,    958,    1052. 
ex   maleficio,   what   are,   and   varieties   of.    10.30.    1053. 

where  devise  or   bequest  procured   by   fraud.   430,   919,    1054. 
legal    title    procured    on    fraudulent    verbal    promise,    910.    919, 

1055. 
no   trust   from    verl)al    promise   to   ]nirchase   and   convey.    1056. 
in    favor    of      judgment     creditors    where    property     fraudulently 

transferred,    1057. 
rights  and   remedies   of  cestui  que  trust  in,   369,   375,   1058,    1080. 

TRUSTEE    AND    CESTUI    QUE    TRUST, 
who   may    be    in   ordinary   trusts,    987. 

infants,    married    w'omen,    lunatics,    corporations    cestuis,    executors, 
987,  note, 
trust  not  allowed  to  fail   for  want   of  trustee,   988,   1007.   1026. 
powers,    duties,    and    liabilities    of   express   trustees.    1059-1087. 

acceptance  by  trustee  unnecessaiy  to  validity  of  trust,  1007.  1060. 
joint  owners,  when  i)roperty  given  to  two  or  more  trustees.   1060. 
survivorship    on    death    of    trustee,    1060. 
duty  of  trustees  to  conform   to   directions   of  trust..    1062. 
duty  of  trustees  to  render  accounts,  and  nature  of,   1063. 

to   obey   directions   of   the   court,    1064. 
duty  of  trustees  to  restore  trust  property  at  end  of  trust,   1065. 
to   use  cai'e  and   diligence,    1066-1074. 

to  protect  and  obtain  possession   of  trust  property.   1067. 
duty  of  trustees  not  to  delegate  authority.   1068. 
duty    of   tru^<tees    not   to    surrender   entire    control    to    co-tnistee,  •  1069, 

1082. 
amount   of    care   and    diligence    reqiiired    of   trustees.    1070. 
.  duty  of  trustees  as  to  investments,   1070,   1071-1074. 

result   of   imreasonable   delay,    1067,    1071,    1072. 
when   particular   investments   are  required,    1067,   note,    1073. 
when   trust  gives   no   directions,    1074. 
duty  of  trustees  to  act  with  good  faith,  931,  958,   1075-1078. 
trustees  cannot  deal  with  trust  property  for  own  advantage,   1075. 


INDEX.  1047 

TRUSTEE  AND  CESTUI    QUE  TRV^^T— Continued. 

must   not    mingle   trust   funds    with    their    own,    \0(ui,    107fi. 
must    not    act    inconsistent    with    beneficiary's    interests,    1077. 
contracting   with   themselves,    !)58^    1049,    1077,    1078. 
breach   of  trust   by   trustees   and   liability   therefor,    1079-1083. 
personal   liability  of  trustees,   1038,    1080. 
statute  of  limitations  as  a  defense,  418,  419. 
liability  among  co-trustees:    contribution,   1081. 
liability   for  acts   of   co-trustees,    1069,    1082. 
cestui  que  trust  acquiescing  or  concurring,   1083,   1104. 
compensation  and  allowance  to  trustees,   1084.  I 

for  exjienses  and  outlays,    1084,    1085. 
removal   and   appointment  of  trustees,    108(5. 
appointment   of   new   trustees,    1087. 
persons    standing    in    fiduciary    relations    are   quasi    trustees.    1088. 
corporation   directors   as   quasi   trustees,   963,   note,    1089-1096. 

See  Directors. 
guardians   and   agents   as   quasi   trustees,    1097. 

U. 
UNITED  STATES  COURTS, 

departments  of  law  and  equity  distinct  in,  41. 
jurisdiction  of,  in  suits  for  administration.  293.  and  note, 
equity   jurisdiction  of,   285,   291-298. 

uniformity  of,  throughout  United   States,  292. 
identity   of,   292. 
extent  of,  285,  294. 

statutory  provisions   relating   to   inadequacy   of   legal    remedies   as   af- 
fecting,  295-297,    914. 
effect  of  state  laws  on,  292,  note,  293,  note,  297. 

UNSOUND  MIND, 

jurisdiction   of  equity  over  persons  and   property  of,   13I1-I314.     See   NoN 
CoiiPOTES   Mentis. 

USES, 

when  inventedj  and  growth  of,  978. 

how  regarded  at  law,   979,   980. 

jurisdiction   of  chancer}'  over,   when   established,   980. 

resulting  and  constructive,  invented;    doctrines   of,   based   on   theory  of 

consideration,  981. 
introduction  of  doulde  nature  of  property  in  land;  the  use  and  the  seisin, 

982. 
description   and   effect   of   statute   of,   983. 
kinds  of,  not  embraced  in  statute  of,  984. 
use  upon  a  use  not  executed  by  statute  of,  985. 

W. 

WASTE, 

injunctions  granted  between  mortgagors  and  mortgagees  to  restrain,   1345. 

when   granted   in   general,    1348. 
what   is,  and   distinction  between   and   trespass,   1348. 


1048  INDEX. 

WAf^TE—Continucd. 

equitable   waste,    1348a. 

relief  granted:      parties,   1348b. 

WILLS, 

^Jiiisdiction    of   equity    in   construction   and   enforcement   of,    1155-1158. 
generally   considered    incident   to   that   over   trusts,    1154-1157. 
limited  to,  of  jjersonal  property,   1155,   115G. 

to,   of   real  property  involving  trusts,   1155,   1156. 
suits   to   construe,   by   whom   maintained,    115G. 
vixercised  in  some  states  where    terms    of,    are   difficult    or    doubtful. 
1157. 


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